Public domain

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The various forms of intellectual property rights; the space outside corresponds to the public domain.

The Public Domain are all subject to intellectual creations where no intellectual property rights , in particular no copyright exist. The public domain (PD) found in the Anglo-American region is similar, but not identical, to the European public domain . According to the protected land principle , the public domain is always determined by the respective national legal system in which the use is made.

Public property can be used by anyone for any purpose without authorization or payment obligation. Anyone who asserts intellectual property rights ( fame ), even though the property is actually in the public domain, can trigger counterclaims from the wrongly claimed.

The term of the public domain is mainly used for copyrights, other intellectual property rights are common terms such as the need to be kept free in trademark law or free prior art and the obvious further development in patent law . In the commercial field, there is also talk of freedom of competition . They all fall under the public domain in the broader sense.


The public domain is the basic norm of all knowledge and all spiritual creations. Nobody can be excluded from the use of the public domain; the use by one person does not prevent others from using the same public domain: it is non-exclusive and non-rival.

Different areas work together in the public domain: economically, public domain goods are not scarce and since the use is non-rival, positive externalities result even with intensive access to public domain goods . Democratic, rule of law functions are evident in official works . These must be in the public domain and strive for as wide a distribution as possible, as knowledge of them is a prerequisite for the functioning of society and the state. Culturally, the public domain is laid out in the field of education and science, ideas and knowledge cannot be protected and thus monopolized. A further development of science requires access to the current state. In art, the basic cultural stock of works that are no longer protected is the common cultural heritage of humanity. From this, but also from reflections and criticism, the inspiration for new works emerges.

The public domain, as the absence of intellectual property rights, is a field of open competition. Reto M. Hilty notes that this promotes creativity and growth. Intervention in competition with a monopoly right must therefore always be justified and can in no way be an end in itself. He expressly rejects the striking thesis “More protection = more creativity”. The public domain is an expression of the general freedom of action and can only be restricted by legal regulations. The intellectual property rights are such legal regulations.

The prevailing opinion sees equal status between the public domain and intellectual property rights and therefore strives for a balance between the two. In legal dogmatics , however, the rule-exception relationship is put forward, according to which the public domain enjoys priority, "the first granting of intellectual property rights needs justification."

On this basis, the public domain can be established in various forms:

  • Creations that were never subject to intellectual property law,
  • Works whose protection has expired,
  • Works released into the public domain by the Creator.

In specific areas of application, copyright barriers can also develop the effect of the public domain.

Structural public domain

Copyright and other intellectual property rights only protect works , not every intellectual creation. The prerequisites are, on the one hand, that creation is embodied in a concrete form, i.e. that it goes beyond an idea, and only this form is protected, and on the other hand, a certain threshold of individuality or originality is required, as a base of basic knowledge, design principles and simple services must be available to everyone. Even small, obvious innovations cannot be protected as routine further developments. Such creations and achievements are directly subject to the public domain.

Public domain through the passage of time

All intellectual property rights that are designed to protect innovations only have a limited term. The duration of protection differs according to the various types of protection and depends on their regulations. After the standard protection period, a service becomes in the public domain when the protection expires.

In doing so, however, one should think of moral rights , which, for example, persist in French copyright law as an eternal droit moral .

An exception are trademarks that can be renewed indefinitely as long as they are used in the market.

Release into the public domain

The majority of intellectual property rights can be waived at the discretion of the creator. Patents have to be registered expressly, designs registered. In the case of services that are provided in an employment relationship, however, the regulations of the Employee Invention Act may have to be checked.

According to German and Austrian law, it is disputed whether a total waiver of copyright in favor of the general public is possible. Probably the prevailing opinion excludes this with reference to § 29 UrhG -D and § 19 UrhG -Ö. Therefore, there is no public domain by renouncing rights as in the USA , where all rights can be waived and the public domain work has the same status as a work that has never been or is no longer protected. This position is particularly problematic with regard to orphan works that remain protected by copyright but remain inaccessible for legal, licensed use. According to another view, the prohibition on the waiver of copyright only serves to protect the author against exploitation in the event of a transfer of copyright and usage rights to a third party. When giving up for the benefit of the general public, there is no individual beneficiary and therefore no exploitation. This interpretation considers the release of a work in the public domain to be permissible under German copyright law and argues, among other things, with the legal justification for the introduction of the Linux clause .

In any case, it is possible to make the work available under such a right of use that it can be freely changed by anyone - through a free license . For marking the release of possible rights as far as waiving a fee was approved by the organization Creative Commons , the CC Zero created license.

In the USA, the Public Domain Enhancement Act was discussed in the mid-2000s . According to this proposal, any copyrighted work for which no symbolic fee is paid after 50 years would fall irrevocably into the public domain. This would not only solve the problem of orphan works, but also strengthen the public domain.


The limits of intellectual property rights allow the free use of otherwise protected services in a certain context. Within these limits, the service can be used as if it were in the public domain.

Thus, official works in the public domain according to German law; in the United States , this rule goes even further: all federal government services provided in the exercise of their service are directly in the public domain .

All copyrighted works in Germany can be used for the administration of justice and public safety .

The free use of works that are still protected is permitted if the personal features of the original work fade and those of the new author come to the fore.

Differentiation from related concepts

Public domain

Older PD symbol as a negation of the copyright symbol .

In Anglo-Saxon Common Law, the legal term public domain stands for “free of copyrights”. The meaning of English terms such as copyright and public domain cannot simply be transferred to the German terms “copyright” and “ public domain ”.

Anglo-Saxon copyright, for example, has no express moral right , which in continental European legal systems can lead to certain forms of use being inadmissible in individual cases as a violation of the author's personal rights, despite the public domain of a creation; in France even with eternity. For the same reason, giving up copyright and releasing a work into the public domain is unproblematic, while in continental Europe it is controversial and, according to prevailing opinion, inadmissible.


The legal principle of copyleft is incompatible with that of the public domain, since copyleft is based on copyright instead of waiving it like the public domain. The motivation behind copyleft licenses, however, is similar to that of content in the public domain, namely to give users the freedom to reuse the works, i.e. to allow copies and modified versions (see also free content ). In the case of public domain works, a third person can add copyrighted material to the public domain work so that the entire work is protected by copyright and may contain restrictions on copying and editing. The freedom of users to modify the content can therefore be lost through changes made by third parties. To prevent this, copyleft uses the powers of the author, the copyright ( copyright ) to all the other authors to force a plant to provide the plant with all its changes back under the original license.

From the consumer's point of view, copyleft has the advantage that freedom is guaranteed in the long term, while the public domain offers the advantage of allowing copies and modified versions even without complicated license conditions .

Copyleft licenses are for example the GNU General Public License , the GNU Free Documentation License or Creative Commons licenses, which contain the Share Alike (English, distribution under the same conditions ).

Public Domain Mark

Creative Commons ' Public Domain Mark

In 2010, the Creative Commons proposed the Public Domain Mark (PDM) as a symbol to display creations that are free of copyright claims and are therefore in the public domain . It is the analogue of the copyright sign , which acts as a "copyright mark". The Europeana database uses these symbols, and on the Wikimedia Commons 2.9 million works (~ 10% of all) are classified in the PDM category in February 2016 .


  • Alexander Peukert: The public freedom - concept, function, dogmatics. Mohr Siebeck, Tübingen 2012, ISBN 978-3-16-151714-3 .
  • Ansgar Ohly, Diethelm Klippel (ed.): Intellectual property and public domain. Mohr Siebeck, Tübingen 2007, ISBN 978-3-16-149469-7 .

Web links

Wiktionary: Public domain  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. Peukert 2012, pp. 246 ff., 252.
  2. Ansgar Ohly: Intellectual property and public domain: Research perspectives. In: Ohly, Klippel 2007, p. 2.
  3. University of Bayreuth: DFG Graduate College »Intellectual Property and Public Domain«
  4. Peukert 2012, pp. 66–72, 69.
  5. Peukert 2012, p. 282.
  6. Peukert 2012, p. 56.
  7. Peukert 2012, p. 62 f.
  8. ^ Reto M. Hilty : Scapegoat Copyright? In: Ohly, Klippel 2007, p. 111.
  9. Peukert 2012, p. 72.
  10. Peukert 2012, pp. 20-23.
  11. Peukert 2012, pp. 28-30.
  12. ^ Reto M. Hilty: Scapegoat Copyright? In: Ohly, Klippel 2007, p. 132.
  13. Peukert 2012, pp. 205–211.
  14. Peukert 2012, p. 32 ff.
  15. Vinck in Fromm / Nordemann, Copyright, 9th edition, § 24 marginal note 2.
  16. cf. James Boyle : The Public Domain: Enclosing the Commons of the Mind . Yale University Press, 2009, ISBN 978-0-300-13740-8 ( [PDF; accessed February 18, 2010]). The public domain . In: James Doyle (Ed.): Law and Contemporary Problems . tape
     66 , no. 1 & 2 , 2003 ( [accessed January 3, 2013]).
  17. ^ Creative Commons announces the Public Domain Mark . In: The H Open , The H , October 12, 2010. 
  18. Diane Peters: Improving Access to the Public Domain: the Public Domain Mark. Creative Commons, October 11, 2010, accessed October 12, 2010 .
  19. Category: CC-PD-Mark February 2016.