Scholarly Communication Services

SCS Shorts: "I found a public domain work in an anthology. Can I share it?

SCS Shorts
Q&A: “I found a public domain work in an anthology.  Can I share it?”

Any work in the public domain can be freely used, shared, or copied since it no longer has copyright protection.  These would include works created 95 years ago or longer from the current year, according to current US copyright law.  A scan of its original form, or one typed or transcribed from a source, would also be in the public domain even if it was scanned by HathiTrust or included in an anthology.

Public domain attorney and expert Stephen Fishman provides some additional guidance; see pages 238-239 in his book (FAU log-on required).  He says the unique selection and/ or arrangement of public domain sources in an anthology or compilation would be protected by copyright, but not an actual, individual public domain work that is included.  

To give an example, Frederick Douglass’s 1865 speech, “What the Black Man Wants” is in Bridgett A. King’s book, Voting Rights in America: Primary Documents in Context (2019, ABC-CLIO). Douglass’s speech can be shared, copied, or made into a derivative because it is in the public domain.  It can also be copied from King’s (print) book.  The only thing protected by copyright is King’s unique selection and arrangement of primary documents in her book, but not Douglass’s speech.

Here’s a curve ball:  What if the public domain work was found in a database or e-book?  Yikes!  According to Fishman, copying and distributing a public domain work would not be infringement.  However, he says if we give away a public domain work as it appeared in a licensed e-resource, we’d need to look at the source's terms and conditions.  It is possible to have an issue with breach of contract for not following the terms, but not copyright infringement.  There may be risk of sharing a public domain work found in a licensed source, but it can be diminished by transcribing the work or finding it in a less restrictive source.

My thanks goes to a College of Arts and Letters professor for their question!