Public domain
The Public Domain are all subject to intellectual creations, in which no intellectual property rights, in particular no copyright exist. The encountered in the Anglo-American Public Domain (PD ) is similar but not identical to the European Public Domain. After the protection principle of the country, the Public Domain always determined by the respective national legal system in which a use is made.
Public Domain goods can be used by anyone without permission or payment obligation for any purpose. Who intellectual property asserts ( Schutzrechtsberühmung ), although the Good in truth is in the public domain, counterclaims can trigger the unjustly detained claim.
The concept of a public domain is used mainly in relation to copyright, other intellectual property rights in relation to concepts such as need for free in trademark law or free state of the art and obvious development in patent law are common. In the industrial field is also spoken by free competition. They all fall under the Public Domain in the broader sense.
- 2.1 Public Domain
- 2.2 copyleft
Structure
The Public Domain is the basic standard of all knowledge and intellectual creations. From the use of public domain goods no one can be excluded, the use by one person does not prevent others from using the same public domain Good: It is non-exclusive and non- rivalrous.
Different areas interact in the public domain: Economic public domain goods are not scarce and because the use is non- rivalrous, arise even with intensive access to public domain goods positive externalities. Democratic, constitutional functions show up in official works. This must be out and seek the widest possible dissemination, because knowledge is a prerequisite for the functioning of society and the state. Cultural Public Domain is created in the field of education and science, ideas and knowledge can not be protected and monopolized it. A further development of science requires access to the current state. In art, the basic cultural inventory is no longer protected works is the common heritage of mankind. This, but also from reflections and criticism gives the inspiration for new works.
The Public Domain, as the absence of intellectual property rights, is a field of open competition. Reto M. Hilty notes that this fosters creativity and growth. The intervention in competition with a monopoly right must therefore always be justified and can not be an end in itself. The striking thesis " More protection = more creativity," he explicitly rejects. Public Domain is an expression of the general freedom of action and may be limited only by legal regulations. The intellectual property rights are those legal regulations.
The prevailing opinion sees a direct ranking of public domain and intellectual property rights, and therefore seeks to balance between the two to. Legal dogmatic, however, the rule - exception relationship is submitted after the Public Domain a priority, " the initial grant of intellectual property is in need of justification. "
On this basis, Public Domain be justified in various forms:
- Creations that never were subject to intellectual property law,
- Works whose protection has expired
- Works, which were dismissed by the Creator in the Public Domain.
In concrete application domains and limitations of copyright, the effect of a public domain unfold.
Structural Public Domain
The copyright and other intellectual property protection only works, but not every intellectual creation. Conditions are, firstly, that the creation is embodied in a concrete form, that goes beyond an idea, and only this form is protected, and secondly, a certain threshold of individuality or originality is required, as a base of basic knowledge, design principles and should be simple services available for everyone. Even small, obvious innovations are as routine developments not capable of being protected. Such creations and services are subject to the public domain directly.
Public domain due to expiration
All intellectual property rights, which are created as a protection of innovations that have only a limited term. The term of protection differs according to the different types of protection and is governed by their rules. Power is in the public domain according to the rule protection with the expiry of protection.
However, it has to think of moral rights that persist permanently about the French copyright law as an eternal droit moral.
An exception are brands that can be renewed indefinitely as long as they are used in the market.
Release into the Public Domain
In the majority of intellectual property rights may be waived at the discretion of the Creator. Patents must be explicitly registered, registered designs. For services that are provided in an employment relationship, however, the provisions of the Employees' Inventions Act are considered, if necessary.
According to German and Austrian law is controversial whether a total waiver of the copyright for the benefit of the general public is possible. Probably the prevailing opinion, this includes citing § 29 of the Copyright Act -D or § 19 of the Copyright Act - east from. Therefore, there are no public domain by waiving rights as in the U.S., where it can be waived all rights and the public domain work has the same status as a never or no longer protected work. The problem this position is particularly in view of Orphan Works. According to another view, the prohibition of the waiver serves to copyright only protects the author from exploitation to a transfer of copyright and rights of use to a third party. For abandonment to the general public, there is no individual beneficiary and therefore no exploitation. This interpretation considers the dismissal of a work into the public domain according to German copyright law also admissible and argues, inter alia, with the legislative intent in introducing the Linux clause.
In any case, it is possible to bring the work under such sublicensed that it is freely changeable by anyone: Free licenses. To mark the release of the greatest possible use rights, waiving compensation was created by the organization Creative Commons CC - Zero license.
Qualifying provisions
The limits of intellectual property rights allow the free use of otherwise protected services in a particular context. Within these limits, the power can be used, as they would be in the public domain.
So are public domain works Government under German law; in the United States, this rule goes even further: all services provided by members of the federal government that provide such services in the line of duty, are directly in the public domain.
For purposes of the administration of justice and public safety, all copyrighted works can be used in Germany.
The free use of protected works is not allowed if the personal traits of the original work fade and enter the new author to the forefront.
Differentiation from related concepts
Public Domain
The legal concept of the public domain is in the Anglo-Saxon Common Law for free from copyrights. The importance of English words like " copyright" and " Public Domain " can not readily be transferred to the German terms " copyright " and " Public Domain ".
Copyleft
The legal principle of copyleft is incompatible with the public domain, because copyleft based on copyright, rather than to renounce such as the Public Domain it. The motivation behind copyleft licenses, however, is similar to that of public domain content, namely, to give users Freedoms, concerning the re-use of the works, so as to allow copies and modified versions (see also free content ). In public domain, a third person can copyrighted material to add to the public domain works, so that the entire work is copyrighted and may contain restrictions of the copies and adaptations. The freedom of the user to modify the contents, so it can be lost by third-party modifications. To prevent this, copyleft uses the powers of the author, copyright (copyright) to force all the other authors of a work to bring the work with all its changes back under the original license.
Copyleft has so from the perspective of the consumer the advantage that long-term freedom is ensured while the Public Domain offers the advantage of allowing even without complicated licensing conditions copies and modified versions.
Copyleft licenses such as the GNU General Public License, the GNU Free Documentation License or Creative Commons licenses, which the block ShareAlike (English, passing under the same conditions ) included.