3 - Categories of Public Rights

Summary

The copyright public domain has been defined earlier as ‘the public’s ability to use works on equal terms without seeking permission’, and by a more technical definition. The elements that comprise public domains can then be found by answering: ‘What rights do the public have to use works without asking for permission?’. Applying this question to analysis of national laws results in the identification of fifteen categories where the public are able to use works without permission, which we refer to as public rights (using ‘works’ to include all forms of creative expression, whether or not protected by copyright). The categories, explained in summary in this chapter, are: (1) works failing minimum requirements; (2) works impliedly excluded; (3) works expressly excluded; (4) constitutional and related exclusions and exceptions; (5) works in which copyright has expired; (6) public domain dedications; (7) public policy refusals against enforcement; (8) public interest defence to enforcement; (9) insubstantial parts; (10) ideas or facts; (11) uses outside exclusive rights; (12) free use exceptions and limitations; (13) neutral compulsory licensing; (14) neutral voluntary licensing; (15) de facto public domain of benign uses. The public domain is the sum of these public rights for any given national jurisdiction.