It is a great misunderstanding that open source software is within the Public Domain. Therefore let me start this post about the concept of the public domain by making it clear that the fact that some software has been released under an open source licence or that other digital content is released under a Creative Commons licence (with the exception I will mention below) does not mean that the software in question or its content can be treated by those who use it as if it were in the public domain.

What does it really mean that software or another work is in public domain? First of all, we do not know or recognise the “public domain” concept itself in accordance with Danish copyright legislation or praxis. The concept is contrived primarily in American legislation and has a specific legal meaning. However, this does not mean that a concept or institution with corresponding or similar legal effects cannot be relevant in accordance with Danish copyright legislation.

Software code and other works, for instance text, video and audio, which are an expression for a creative effort from the creator will, with a few exceptions, be covered by copyright. Copyright grants the creator certain exclusive rights (sole right) to determine how the work shall be used.

When a work is in the public domain, or whatever we are going to call it in a Danish context, it means that it is not protected by copyright, and therefore in principle everyone can use it for whatever purpose they may have. It is therefore in the public domain and the only limitation in relation to its use is, in reality, that the person who uses the work cannot “seal it” and cannot claim copyright thereof unless it concerns an independent creative effort, and in that case only for the creative effort and not for the basic material which was originally in the public domain.

Works which otherwise would have been covered by copyright can explicitly be exempted by legislation for this. An example for such an exception are public acts, administrative rules, rulings, etc., which hence are not the subject of copyright.

Another exception – and a somewhat more important exception to copyright protection – is  works which originally have been covered by copyright but where 70 years have passed after the death of the originator. When this long period has expired, the work is no longer protected by copyright and is therefore in the public domain. All works by Shakespeare, Bach and Michelangelo are therefore in the public domain. (A different issue is then that the individual copies of text, notes and sculptures are protected by ownership and copies of the works in different media and formats may themselves be protected by copyright).

It is therefore important to emphasise that when a developer chooses to have his software code released under an open source licence this is due to the fact that the developer has the copyright and the exclusive right to determine under which terms users shall be able to use his protected work. Therefore, we are not talking about a situation where the developer disclaims his copyright and sole right and releases the code to public domain, but one in which he releases the code under a licence on terms other than traditionally closed source licence terms.

There can be many reasons why it is advantageous for either the originator or the person who shall use the work if the work is released under a special licence or it is made available in public domain. I will not go into detail about the differences and motifs. However, it is important to emphasise that both for the developer and for the user it is critical to know on which licence terms the work must be used, whether the work is available on licence terms at all, or whether it is in the public domain. The legal position for both the creator and user is significantly different depending on which model has been chosen.

It is often difficult for a user of a software code or content on the internet to find out under which licence terms it is released, or whether it is freely available at all as being in the public domain.

If, for instance, a picture is uploaded to a photo sharing service without indication of licence terms or any other kind of information about the allowed use, which use of the picture is then allowed? In most cases, the situation will be that the potential user of the photo may expect that he is not allowed to use the photo for any purpose without the originator’s consent unless it might be an accepted custom for use. It is the general rule that, pursuant to Danish copyright, you always interpret agreements about use of material protected by copyright restrictively to the benefit of the creator.

As a result, it is a good idea that the creator of a work makes it explicitly clear if he wishes for the work to pass to the public domain, otherwise users do not know what they are allowed to do with the material. It can then easily be assumed that users will always expect that they may not use, for instance, a picture freely unless the creator of the picture has been dead for 70 years, which one often will be in doubt about. No one can be interested in this uncertainty.

On this basis, Creative Commons has incorporated into its toolbox of different licences a declaration from the creator of a work that he releases as far as possible his work to the public domain. You can read about the CC0 at the following address: http://wiki.creativecommons.org/CC0.

However, the issue in accordance with Danish copyright – and possibly also in a number of other jurisdictions in Europe – is that a creator cannot completely can disclaim his copyrights and release the work to public domain.

In Europe – and therefore also in Denmark – people operate with the so-called ‘ideal rights’ (moral rights) which are rights of the creator which cannot be transferred by agreement irrespective of whether the creator wishes to do so. This means that regardless of whether a Danish creator might have given a declaration with such a binding content which the Creative Commons’ declaration about the public domain might be considered to get, it will not have a binding effect with regard to the moral rights.

The moral rights demand that the originator’s demand to be named in accordance with whatever good practice dictates, as well as on a copy of the work when it is made available to others, and prohibit the work being modified or made available in a way or in a context which is offending for the creator’s literary or artistic reputation or character.

What is further specified in these moral rights in relation to software code and digital content, I will not elaborate further on in this post. I will only emphasise that these moral rights will always be valid for content which one might access via the internet, irrespective of whether the lifetime of copyright has expired or whether the originator, for instance by way of a Creative Commons declaration, has waived his rights and released the work to the public domain.