The Public Domain
Chapter Forty-Nine
Syllabus topic 1.6, "Term of Copyright"
Pages 201 to 204 of 719
In one line
When a copyright term ends the work becomes free for everybody for ever, and nothing anybody does can put it back.
In the wording a student can write in an exam: a work is in the public domain when no copyright subsists in it, whether because the term has expired, because the work was never protected, or because the author has relinquished the copyright under section 21; and by Berne article 18(2) a work which has fallen into the public domain in a country is not to be protected anew there.
Why the law has this at all
Because the public domain is what the bargain buys. The Statute of Anne gave a fixed term for the encouragement of learning, and what learning gets in return is everything after the term. A copyright with no end would be a tax with no benefit.
And because certainty matters more here than anywhere else. A publisher deciding whether to reprint a nineteenth century novel needs to know, from the face of the Act, whether it is free. The whole apparatus of fixed terms measured from public events exists to make that answerable.
What is in the public domain
Works whose term has expired. Sections 22 to 29 fix the end, and the day after is the beginning of the public domain.
Works that were never protected. Facts, ideas, titles, methods and anything outside the six classes in section 13. Strictly these were never in copyright rather than out of it, but the practical position is the same.
Works whose author relinquished the copyright. Section 21 lets an author give up all or any of the rights by notice in the prescribed form to the Registrar of Copyrights or by public notice. What is relinquished cannot be recalled, though section 21(2) protects rights subsisting in favour of others at the date of the notice.
Works with no Indian copyright at all. A foreign work that satisfies neither section 13(2) nor any order under section 40 has no Indian copyright, whatever its position abroad.
And matter that section 52(1)(q) makes free to reproduce, which is not quite the same thing: copyright subsists but reproduction of those categories is not an infringement.
What is NOT in the public domain
A work that is out of print. Availability has nothing to do with it. An unobtainable book is as protected as a bestseller, which is why section 31 exists.
A work whose author cannot be found. An orphan work is in copyright and unusable, and section 31A provides a licence for an unpublished work whose author is dead, unknown or untraceable.
A work published without a copyright notice. Berne article 5(2) forbids formalities and India imposes none, so a notice has no legal effect and its absence proves nothing.
The Public Domain
A work put on the internet. Making a work available to the public is an exercise of the owner's right, not an abandonment of it.
And an unpublished manuscript, however old. Section 24 measures from publication, so a work never published never begins to run out.
Nothing comes back
Berne article 18 is the rule. Paragraph (1) applies the Convention to all works which have not yet fallen into the public domain in the country of origin through expiry of the term. Paragraph (2) then provides that if, through the expiry of the term previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew.
India applied that when it extended the term in 1992. The Copyright (Amendment) Act, 1992 substituted sixty years for fifty. It reached copyrights that were still subsisting; it did not revive a copyright that had already expired.
And it applies to the 2012 change to photographs too. A photograph whose sixty year publication term under the old section 25 had already run out before 21 June 2012 stayed free; one still in copyright at that date moved to the section 22 measure.
What a user may do with a public domain work
Anything. Reprint it, translate it, adapt it, film it, sell it, put it online, and charge for any of that.
But two traps.
A new edition may carry its own copyright. Not in the old text, but in whatever the editor added that meets the originality standard, which is the whole point of Eastern Book Company v. D.B. Modak, AIR 2008 SC 809. Copying a public domain novel from a modern annotated edition may take the annotations.
And a translation is a separate work. A translation of a public domain novel made in 1990 is protected in its own right, so the original is free and that translation is not.
A third trap is not copyright at all. A photograph of a public domain painting may carry copyright in the photograph, and a museum may impose contractual conditions on access. Neither revives the copyright in the painting, and both may prevent a particular person getting at it.
A worked example
A publisher wants to reprint a Marathi novel first published in 1935. The author died in 1958.
Is it free? Section 22 gives sixty years from 1 January 1959, so the copyright expired at the end of 2018. The novel is in the public domain.
May the publisher use the 1998 critical edition? The text of the novel, yes. The editor's introduction, notes and glossary are a separate literary work protected in their own right, and the 1998 edition's editor is alive. Taking those would infringe.
The Public Domain
May the publisher use the 1970 English translation? No, not without a licence. The translation is a separate literary work under section 2(o), its author is the translator, and its own term is running.
May the publisher make its own translation? Yes. The right to translate under section 14(a)(v) died with the copyright in the original.
May a film be made from it? Yes. The right to make a film under section 14(a)(iv) died with the copyright too.
And may the author's family object to a distorted adaptation? Section 57(1) gives the author's special rights, and section 57(2) says that the right conferred on an author, other than the right to claim authorship, may be exercised by his legal representatives. The economic rights are gone; whether the moral rights survive the term is a question the section does not answer expressly and on which there is no settled Indian authority, and a candidate should say so rather than assert an answer.
What it does NOT mean
It does not mean a public domain work can be re-copyrighted by republishing it. A new edition protects what the editor added and nothing else.
It does not mean the public domain is the same everywhere. Terms differ, so a work free in India may still be protected in the European Union, and the comparison of terms in Berne article 7(8) cuts the other way.
And it does not mean expiry is the only route. Relinquishment under section 21 and non-subsistence under section 13(2) both produce the same practical result.
Quick revision
Public domain: no copyright subsists. Expiry under sections 22 to 29; never protected at all; relinquished under section 21; or never qualifying under section 13(2).
Berne article 18(2): a work that has fallen into the public domain is not protected anew, which is why the 1992 extension revived nothing.
Not in the public domain: out of print works, orphan works, works without a notice, works on the internet, and unpublished manuscripts however old.
Two traps: a modern edition's added matter, and a separate translation, each with a term of its own.
Section 52(1)(q) makes certain official matter free to reproduce without the copyright in it having expired.
Test yourself
1. Give three ways a work can be in the public domain in India. The term has expired under sections 22 to 29; the work was never protected at all, being outside the classes in section 13; or the author has relinquished the copyright under section 21.
2. India extended the term from fifty to sixty years in 1992. Did any expired copyright revive? No. The extension reached only copyrights still subsisting, which is the rule in Berne article 18(2).
The Public Domain
3. A novel is in the public domain. May you copy a modern annotated edition of it? You may copy the novel. The annotations, introduction and notes are a separate literary work protected in their own right.
4. Does an old unpublished manuscript ever fall into the public domain? Not on the words of section 24, which measures the term from first publication, so a work never published never begins to run out.
5. Does the absence of a copyright notice put a work in the public domain? No. Berne article 5(2) forbids formalities and India imposes none, so a notice has no legal effect either way.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.