International treatment of the public domain

Arnoud Engelfriet galactus at
Tue Feb 17 19:21:41 UTC 2004

Russell McOrmond wrote:
> On Mon, 16 Feb 2004, Russell Nelson wrote:
> > jcowan at writes:
> >  > So Americans can ignore the civil-servant version of the NOSA license with
> >  > impunity, but not so Australians.
[This was in response to my quoting from the Berne Convention to
show that copyright in "other" Berne countries is independent from
existence of copyright in the "home" country, as long as the work
qualifies as protected matter under the BC. Apparently under US
law works by the NASA may be public domain by law]

> > Interesting ... so what happens if an American citizen takes public
> > domain US Government software into Australia and starts redistributing
> > it there?  But I suppose that's a problem that the NOSA will fix, so
> > at least for this discussion it's a moot point.
>   What if any US citizen took this work that is under the public domain
> (for them) and applied a BSD (or any other) license and redistributed
> worldwide?

I don't think it is legal in the USA to apply your own license to
a public domain work. How can you license something to which you
do not have a copyright?

Presumably creating a modified version or something would entitle
you to a copyright to that version, but the 'bare' public domain
work cannot be under copyright.

>   I think there is an interesting question being opened up by this
> discussion.  Given that term expiry is not the only way for a work to
> enter the public domain, and term expiry can be different in different
> countries (A Disney production gets 95 years in the USA but fortunately
> only 50 years in Canada), are the other methods to enter into the public
> domain also country specific?

I think so. In fact it may be impossible for a work to truly enter
the public domain in any other way. Most countries recognize the
concept of 'moral rights' that are inalienable rights of the
author and which cannot be transferred or given up. These rights
permit the author to act against "mutilation" of his work, even
when licensing it under an open source license, and also when
saying "this work is in the public domain" or words to that effect.


Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies:
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