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Part I.

3

PUBLIC DOMAIN [1]

Copyright-Free Materials

Works that are not protected by copyright are said to be in the Public Domain, and you are free to use them in any way you choose. That means no restrictions on copying and adapting, no need to seek permission, and no uncertainty about your rights as a user.

A work typically enters the Public Domain when its term of copyright expires. Determining whether or not a work is in the Public Domain can be complicated, however, as the term of copyright often differs depending on a work’s authorship, format, date of publication, and country of origin.

This guide will show you how to determine if a work is in the Public Domain in Canada, how to evaluate works that originated in other countries, and how to avoid common mistakes concerning adaptations, translations, and scholarly editions. As well, this guide contains detailed information about the duration of copyright for works in different formats.

Country of Origin What are the terms of Public Domain?
Canada Follow Canadian Law
Berne Convention Country If item would be in the Public Domain if created in Canada, then consider it to be Public Domain in Canada
None of the above Not constrained by copyright

Public Domain in Canada

In Canada, the copyright for a work usually expires 50 years after the death of the creator, at the end of the relevant calendar year.

E.g. Since Mordecai Richler died on 3 July 2001, his novels will remain copyrighted until 31 December 2051, and will pass into the Public Domain on 1 January 2052.)

Determining whether a work is in the Public Domain can be complicated, however, as the duration of copyright differs depending on a work’s authorship and format. The tables below contain detailed information about these differences, and are designed to help you determine whether the copyright for a work has expired.

The first table covers differences related to authorship, and the subsequent tables cover differences related to specific formats, including literary/dramatic/musical/artistic works, images, cinematographic works (e.g., film and video), and government publications.

1. Authorship

(A)

Known Single Author

If the author is still living: Not in Public Domain

If the author is now deceased: Is the work published?

(a) If no: Enters Public Domain 50 years after the death of the author.

(b) If yes: Was the author living at date of publication?

→ If yes: Enters Public Domain 50 years after the death of author.

→ If no: Was work published before December 31, 1998?

If yes: Enters Public Domain 50 years after date of publication.

If no: When did the author die?

– Before December 31, 1948: Enters Public Domain on January 1, 2004.

– Between December 31, 1948 and December 31, 1998, inclusive: Enters Public Domain on January 1, 2004.

– After December 31, 1998: Enters Public Domain 50 years after death of author

(B)

Known Multiple Authors

If any of the authors are still living: Not in Public Domain. If all of the authors are deceased:

Is the work published?

(a) If no: Enters Public Domain 50 years after the death of last surviving author.

(b) If yes: Was the author living at date of publication?

→ If yes: Enters Public Domain 50 years after the death of last surviving author.

→ If no (i.e. a Posthumous Work): Was work published before December 31, 1998?

If yes: Enters Public Domain 50 years after date of publication.

If no: When did the last surviving author die?

– Before December 31, 1948: Enters Public Domain on January 1, 2004.

– Between December 31, 1948 and December 31, 1998, inclusive: Enters Public Domain on January 1, 2004.

– After December 31, 1998: Enters Public Domain 50 years after death of last surviving author.

(C)

Pseudonymous/Anonymous Author(s)

If author(s) are unknown, then the work will enter the Public Domain at whichever is earlier:

– Year of publication + 50 years; or

– Year of creation + 75 years.

But, if one or more authors becomes known before the earlier of publication + 50 years / creation +75 years, then the work enters the Public Domain at death of the known author who dies last + 50 years.

(D)

Work created for hire, i.e. in the course of employment

In the absence of an agreement to the contrary, the person who employed the author is first owner of copyright. However, the determination of whether a work is in the Public Domain still determined in reference to the life of the individual author.

– If the employer is corporation, organization or a municipality, see section (E) below.

– If the employer is an individual (a human being) or individuals, please see Section (A) or (B) above, as appropriate.

Note, if the work which was made in the course of employment is “an article or other contribution to a newspaper, magazine or similar periodical”, then “there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.” (Copyright Act, section 13(3))

(E)

Documents belonging to corporations, organizations, municipalities

If the corporation, organization, or municipality that published the document knows who authored the document, then follow guidelines for Known Authors (Sections (A) or (B), as applicable).

If the corporation, organization, or municipality that published the document does not know who authored the document, then follow the guidelines for Pseudonymous/Anonymous Authors (Section (C), above)

2. Literary, dramatic or musical work, or engravings

(A)

Published/publicly performed/communicated to the public before (last) creator’s death

Single Known Author/Creator: Enters the Public Domain 50 years after death of creator.

Multiple Authors/Creators (i.e. joint authorship): 50 years after the death of the last surviving creator/author.

(B)

Never published/publicly performed /communicated to the public at time of (last) creator’s death

Was the work created on or after December 31st, 1998?

(a) If yes: Enters Public Domain 50 years after the death of (last surviving) author/creator.

(b) If no: Was the work published/performed/communicated publicly prior to December 31st, 1998?

→ If yes: Enters Public Domain 50 years after date of publication.

→ If no: When did the (last surviving) author/creator die?

– Before December 31, 1948: Enters Public Domain on January 1, 2004.

– Between December 31, 1948 and December 31, 1998, inclusive: Enters Public Domain on January 1, 2004.

– After December 31, 1998: Enters Public Domain 50 years after the death of (last surviving) author.

3. Images

a) Photographs (physical prints, not versions published in other media like books, online etc.)

Under the Copyright Modernization Act, the determination of whether a work is in the Public Domain is determined in reference to the life of the individual author (i.e. photographer). Prior to November 7, 2012, the term of copyright in photographs was dependent on whether the “owner” of the initial negative or plate (or, where there was no initial negative or plate, the initial photograph) was an individual or a corporation.

(A)

Photographs taken on or after November 7, 2012

Enters Public Domain 50 years after the death of (last surviving) author; see and apply Sections 1(A)-(D), as appropriate.

Note that the rules concerning Posthumous Works do not apply to photographs.

Note, if the work which was made in the course of employment is “an article or other contribution to a newspaper, magazine or similar periodical”, then “there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.” (Copyright Act, section 13(3))

(B)

Photographs taken before November 7, 2012

Photographs taken before 1949 are in the Public Domain.

For photographs taken in or after 1949, was the owner of the initial negative/plate/photograph an individual or a corporation?

(a) Individual: Enters Public Domain 50 years after death of (last surviving) creator.

(b) Corporation: Was the creator of the photograph the majority shareholder of the owner corporation?

→ If yes: Enters Public Domain 50 years after death of (last surviving) creator (an individual).

→ If no: Was the photograph taken in or after 1962?

– Yes: Enters Public Domain 50 years after death of (last surviving) creator (an individual).

– No: Entered Public Domain 50 years after creation (i.e. now in the Public Domain).

Note that the rules concerning Posthumous Works do not apply to photographs.

Note, if the work which was made in the course of employment is “an article or other contribution to a newspaper, magazine or similar periodical”, then “there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.” (Copyright Act, section 13(3))

b) Photographs and illustrations in books

Copyright ownership of photograph/illustration is stated in the book

 

Enters Public Domain 50 years after death of (last surviving) author of photograph/illustration.
Copyright ownership of photograph/illustration is not stated in the book

 

Enters Public Domain 50 years after death of the author of the book.

4. Cinematographic works or a compilation of cinematographic work

Determination of whether a cinematographic work or a compilation of cinematographic works depends on whether or not the work was published prior to December 31st of the 50th year following the work’s creation. If a work was not published before December 31st of the 50th year following its creation, then it is considered “unpublished”.

Published (i.e. published prior to December 31st of the 50th year following its creation) Enters Public Domain 50 years following the date of publication.
Unpublished (i.e. not published prior to December 31st of the 50th year following its creation) Enters the Public Domain 50 years following the date of creation.

5. Government Publications

Source Published Unpublished
 

Federal government publications are protected by Crown Copyright

Enters Public Domain 50 years after publication. Does not fall into Public Domain
 

Provincial government publications are protected by Crown Copyright

Enters Public Domain 50 years after publication. Does not fall into Public Domain
 

Municipal government publications are not covered by Crown Copyright. Instead, works created by employees of a municipality are the same as any other work created by an employee for an employer (this can include departmental memos, policy documents, artwork, manuals, guidelines etc.). The municipality owns the copyright.

For information about determining authorship of municipal publications, see Section 1(E), above. For information about determining authorship of municipal publications, see Section

Public Domain outside Canada

When determining whether or not a foreign work (from a Berne Convention country) is in the Public Domain in Canada, the first step is to determine whether the work would be in the public domain if it had been published in Canada.

If the work would have been in the public domain if published in Canada, it is in the public domain in Canada. If the work would not be in the public domain if it were published in Canada, check to see whether the work is in the public domain in the country where it was published.

If the work is in the public domain in the country where it was published, then it is in the public domain in Canada. If the work is not in the public domain in Canada nor in the country where it is published, then the work is not in the public domain.

Therefore, if a U.K. author passed away 60 years ago, his work in the public domain in Canada, but not in the U.K., where works do not enter into the public domain until 70 years after the death of the author.

If a country has a copyright term that is less than 50 years, say 30 years, then the work will be in the public domain in Canada after 30 years.

If you wish to use a work that originated in a country that has not signed the Berne Convention, then you should seek permission from the copyright holder.

If you have any questions about the above information, or if you would like assistance in determining whether or not a foreign work is in the Public Domain in Canada, please contact the AIF Curatorial Assistant.

Public Domain and Adaptations, Translations and Scholarly Editions

Copyright comes into effect as soon as a work is expressed in a fixed form (e.g., paper, film, or digital media). If a work subsequently undergoes significant alterations, however, then the result may be considered a new work with a separate term of copyright and different copyright ownership. Accordingly, even if an original work is in the Public Domain, modern reproductions of that work may still be protected by copyright.

A good example of this would be Shakespeare’s plays: although copyright in his plays expired long ago, many of the published editions of his plays contain added original materials (such as annotations, translations, footnotes, prefaces etc.) that are protected by copyright because the authors have used skill and judgment in creating the new material. This creates a new copyright in the additional original works, but not in the underlying text of the original work.

To use another example, the painting of the Mona Lisa is in the Public Domain, but a photograph depicting the painting can count as a different work with a separate term of copyright if the photograph has sufficient originality. If that photograph is subsequently published in a book, moreover, then the published version of the photograph has yet another term of copyright (namely, that of the book in which it was published).

For this reason, it is always important to ask (1) which expression (e.g., version or edition) of a work you are using and (2) when was that expression published or created. The answers to these questions are essential to determining whether or not the work is actually in the Public Domain.

When using works from public websites and other online resources, it is also important to check whether there is a “Terms of Use” agreement or other legal notice governing how the works can be used. For more information on this, please see the section on Public Domain on the Web.

If you would like assistance in determining whether or not a work is in the Public Domain, please contact AIF Curatorial Assistant.

Public Domain on the Web

Many websites provide access to digital reproductions of works that are in the Public Domain. For instance, the websites of museums and art galleries often include online collections of images, and many of these images depict manuscripts, paintings, sculptures, and other creative works that are in the Public Domain.

Although the act of digitizing a Public Domain work is not itself sufficient to create a new, copyrighted version of the original work, it is important to exercise caution when using such digital reproductions, as they are often made available subject to terms and conditions in legally enforceable license agreements.

More specifically, if a website’s terms of use specifically restrict the ways in which you can use the website’s content, then these restrictions would prevail over your right to use that content in accordance with the Copyright Act. For example, if a museum’s website includes an image of a painting that is in the Public Domain, but the website’s terms of use prohibit you from copying or distributing the image, then you must abide by this restriction.

This is also true of license agreements for electronic resources accessed through York University Libraries. YUL eResources includes thousands of images of works that are in the Public Domain, however, our licensing agreements will govern how these images can be used.

Except where otherwise noted, this website is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.


  1. Based on content created by the University of British Columbia available at https://copyright.ubc.ca/guidelines-and-resources/support-guides/public-domain/#Public_Domain_outside_Canada

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