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I know CC0 and the WTFPL for example exist to grant all rights associated with the public domain, without placing it in the public domain, because this is difficult, or in some cases impossible. I know it is impossible in Norway and Germany.

Why is this difficult, and how can I release some project effectively into the public domain, for jurisdictions that have such a concept?

If it varies greatly per jurisdiction, how can I do it for the US?

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TL;DR

The safest way to signal your intent to give up all rights on your work currently is CC0 in most jurisdictions. The safest way to use works in the public domain is to still do it like moral rights apply, even if the copyright in your country doesn't know the concept.


First of all, most jurisdictions have some concept that is more or less similar to public domain (in germany for instance 'Gemeinfreiheit'). But only some countries allow to explicitly assign a work to public domain. So in many jurisdictions a work only becomes public domain, if the time for exclusive rights expire (70 years after authors death in many countries).

To go more into detail here, the Wikipedia-article covers 4 ways a work can become public domain.

Works not covered by copyright law

This is for works, that for some reasons are not covered by copyright laws. This is working in most jurisdictions, although there might be different rules what is covered and what not.

Expiration of copyright

That's what I wrote above, pretty much all jurisdiction have a limit on how long a copyright can be claimed. After that the work can be counted as public domain.

Government works

This is varying very much between jurisdictions. Which of governmental works (or works of other public bodies) is counted as public domain is very dependent on local laws.

Dedicating works to the public domain

This is the case the question implicitly asks. The author explicitly applies his works to public domain. Wikipedia writes here:

Few if any legal systems have a process for reliably donating works to the public domain. They may even prohibit any attempt by copyright owners to surrender rights automatically conferred by law, particularly moral rights.

As can be seen, this is the difficult part. Countries like Germany know the concept of moral rights, that you cannot give up. These cover the rights of the author for attribution or that a work isn't used to denigrate the author.

Moral rights

It has to be noted, that many countries maintain the moral rights even after the commercial rights are expired. So in these countries you still may not use a work of a long dead author for example without proper attribution. In these cases you can say that it is impossible for a work to really properly become part of the public domain. The Berne Convention includes moral rights, although the final ratification still differs strongly even between signatories.

Even for the US, that hasn't the concept of moral rights, it still might be against other laws to violate the moral rights, for instance laws against defamation.

How can I dedicate a work to public domain

You can simply declare, that you put your work under public domain. This may even work in countries that haven't the concept: I remember a law-suit, there the court accepted the public domain dedication as the authors intent to give up his rights.

Also there are some licenses (you name CC0 and WTFPL) that work in that way and give rights similar to what Public Domain would mean. CC0 seems a pretty safe way to make this work in most jurisdictions. Even if your country allows to dedicate a work to public domain, it may be safer to use CC0, as a user in another country might still not be allowed to use your work as PD.

Still, be it a declaration of public domain or CC0, you will keep your moral rights in countries where it applies. So it may be safe to use such works still with proper attribution and not use it in an abusive way.

  • "You can simply declare that you put your work under public domain. This may even work in countries that haven't the concept". I'm not a lawyer but I agree with this. Copyright doesn't require explicit permission to make copies, simply implied permission to make copies is good enough. Even if you can't legally place your work under public domain, any attempt to do so is clearly giving people permission to make copies in my opinion. – Abhi Beckert Jul 28 '15 at 8:38
  • In Norway, if you publicly perform a recorded musical work where the performer has abandoned all rights by using CC0, or the artist simply declare that the recording is in the public domain, you are obliged to pay a levy to a solidarity fund for performing artists, managed by the collection society GRAMO. I doubt that performers expected (or wanted) this to happen. While (AFAIK) there are no similar legal hazard when CC0 is applied to software, these legal tools tend to lead to unexpected effects and OSI recognizes this problem and do not put them on their list of approved licenses. – Free Radical Jul 28 '15 at 12:14
  • @FreeRadical: But the same happens if the author published his musical recording under MIT, am I right? So I see no difference here. The law applies these restrictions independent of the authors intent. No license will save you from that. – Mnementh Jul 28 '15 at 12:25
  • Nope. I've negotiated this with the Department of Culture (on behalf of the CC Norway affiliate), and according to the Department of Culture the only legal tool that triggers this absurd clause is CC0. The MIT License doesn't abandon the author's moral rights (they're not mentioned, so default copyright law applies). – Free Radical Jul 28 '15 at 12:27
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    @FreeRadical: That seems strange, so the WTFPL would be OK? MIT would be OK? A public domain dedication would be OK? What magic does CC0 that only this triggers this law-clause? And is the opinion of the norwegian department of culture legal binding? – Mnementh Jul 28 '15 at 12:31
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TL;DR Things like CC0, Unlicense and WTFL create unexpeced legal hazards in some jurisdictions. The MIT License does not really put anything in the public domain, but it the safest license to use if you want to offer your stuff with as few restrictions as possible in a world-wide setting. In the USA, CC0 can be used, but I do not recommend it for software.


Why is this [to place software in the public domain] difficult?

The difficulty of placing software in the public domain in the public domain is closely related to something called "moral rights" that originated as civil law in the Napoleonic Code (1804, France) under the name of droit d’auteur (literally: author's rights).

Jurisdictions with strong moral rights have a tradition of making it near impossible to dedicate anything to the public domain.

Moral rights include the right of attribution, and the right of integrity (but the exact list of exactly what is protected by moral rights varies between jurisdictions).

In the Norwegian copyright act, moral rights are described in the first parts of § 3, while the third part says that these rights cannot be waived. Here is a direct quote (translated by me):

The author may not waive his rights under the first and second paragraphs, unless the use of the work in question is limited in nature and extent.

The "limited in nature and extent" addendum allows ghostwriting.

However part four states than under no circumstances can the right of integrity be waived. Quote (translated by me):

This right may not be waived by the author.

To compound the problem, moral rights are forever in Norway. In Germany, an author can commit suicide and then wait for 70 years to dedicate his works to the public domain. In Norway (and a few other countries in northern Europe), this option is not available.

how can I release some project effectively into the public domain, for jurisdictions that have such a concept?

I do not think that this is possible for all jurisdictions.

The most professional (as in: written by lawyers, not kids) attempt to create a legal tool to enable authors to dedicate their work to the public domain is CC0.

IMNSHO, while well intended, it fails, and its use creates a legal hazard in several jurisdictions (including Norway, where I live).

OSI seems to think so as well. In 2012, CC0 was submitted to OSI for review. After facing harsh criticism, the application was withdrawn.

(One of better known legal hazards of CC0 is its infamous patent clause, which I discuss in this answer.)

Another license that is supposed to do this is the Unlicense. AFAIK, it has never been submitted to OSI for review, but if it had, I am pretty sure it would have been summarily rejected. OSI's co-founder Bruce Perens call the the Unlicense a "crayon license", adding:

The point is that such things have done serious harm to developers when they've not behaved as expected in court. Thus, naïvely propagating one could be considered to be in the category of irresponsible acts that can damage others.

Personally, I believe that it is unrealistic to aim for the "public domain" if your audience is world-wide. There are too many local quirks in copyright and a one-size-fits-all legal tool to put something in the "public domain" may have some totally unexpected (and harmful) side effects.

For instance, in Norway, publicly performing recorded music distributed under CC0 requires you to pay a levy to GRAMO (a collecting society monopoly authorized under the Department of Culture), but doing the same with music distributed under CC-BY is free. Yes, this consequence of the use of this license is totally absurd, but some copyright laws (at least in Norway) are.

My recommendation is to stay clear of anything with pretense to put anything in the public domain, as well as "crayon" licenses such as "WTFL" and "Unlicense".

MIT

A license that will put as few restrictions as possible on the use of your project, while not creating legal hazards for yourself and your users, is the MIT (aka. Expat) license.

The MIT license does not abandon moral rights. Since they're not mentioned, the jurisdiction's default civil law applies.

The MIT license is also much more aligned with a "traditional" take on copyright. If you use the MIT license, authorship is not abandoned, but specific (normally reserved) rights are explicitly licensed to the licensee. This model fits much better into the legal framework of civil law jurisdictions than the much less conventional public domain dedications that is the gist of CC0, WTFPL and Unlicense.

If it varies greatly per jurisdiction, how can I do it for the US?

In a localized case, including the US, there is usually some recognized way to do this.

As for USA, you may consider using CC0 if you don't mind having your downstream recipients worry about submarine-patents. It was written by US lawyers, and it fits the legal situation in the USA to a tee - but it is really for artistic and literary works. IMNSHO, it should not be used for software.

Let me add that I think CC0 is pretty safe way of putting something in the public domain in common law jurisdictions, but much less safe to use in civil law jurisdictions.

  • Regarding the Norway+GRAMO example, I wonder: As anyone (not just its author) seems to be allowed to apply a different license to a CC0-licensed work, couldn’t performers simply publish the CC0-licensed work under the CC BY license (or ask someone else to do it for them)? – unor Jul 29 '15 at 19:01
  • @unor Despite what is postulated in the answers you link to, I do not believe either of those answers are correct. You should not think that because an answer on SE is upvoted, it is correct. In the GRAMO case, real money was involved. The options was to pay GRAMO's invoice, or to dispute the invoice court. They choose to pay the invoice, and I personally think that this was the correct decision. – Free Radical Jul 29 '15 at 19:41
  • That’s why I used the word "seems": I already supposed you might have a different opinion about this and would welcome your answer on the linked question. – unor Jul 29 '15 at 20:28
  • I would not even think about answering the linked question, as the hairyness of CC0 legal tool IMHO is almost infinite. Also, the answer to this one will vary from jurisdiction to jurisdiction. I know the answer for USA, but what CC0 means outside of USA is anybody's guess - and I see no point in guessing. – Free Radical Jul 29 '15 at 20:40
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    CC0 says very explicitly "To the extent possible under law" -- so does this mean that in Norway one can relinquish one's moral rights by such a declaration? It would seem not from what you say above, thus performing a CC0 work should not force payment to GRAMO. I'm confused. – Greg A. Woods Oct 23 '15 at 1:29
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Placing your work in the public domain is impossible in many countries and even illegal in some.

The Unlicense license will place your work in public domain for people who live in a country where it's possible, and license the work as closely as possible to public domain everyone else.

That's my preferred approach.

  • Could you give an example of a country where it is possible but illegal to place your work in the public domain? It sounds rather unlikely to me, but I've been known to be surprised by copyright law before. – Martijn Jul 28 '15 at 8:29
  • @Martijn Germany and Australia are the biggest two countries as far as I know. It's considered equivalent not paying one of your employees – in those countries that's a crime punished harshly even if the employee gives permission to get paid nothing for their work. – Abhi Beckert Jul 28 '15 at 8:40
  • That's a different situation though. It's not legal for you to pay an employee $0 per hour. It is legal for the employee to receive a salary of $0 per hour. In Germany it's not possible to release your work in to the public domain. It can't be illegal to do something you can't do. – Martijn Jul 28 '15 at 8:42
  • @AbhiBeckert: That can't be right. If you talk about payment, you talk about giving up commercial rights. If that wouldn't be possible, it would be impossible to make freeware or open source in germany. But still such stuff got created and released and courts are accepting open source. – Mnementh Jul 28 '15 at 8:50
  • @Mnementh I just meant it's morally the same, not legally the same. And yes it definitely is a crime (at least in Australia) to have an _ employee _ work without being paid the minimum wage. It's not illegal to do some work and give it away for free, but it is illegal as soon as you have an employer/employee relationship (even if you aren't formally hiring them as such). – Abhi Beckert Jul 28 '15 at 9:00
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One of the most ubiquitous works of software, SQLite, is in the public domain with no license at all. That is highly unusual in the world of software.

Some wise people are behind SQLite, so I think you could do like they did and do the no licensing option to have your software live in the PD.

Although, the no-license approach probably isn't a good idea. I would follow the industry norm of getting a license as the other replies here discuss in great detail.

Also, wanted to post this in part to highlight that public domain per se, may be what you asked for, but not what you intended. It can be a loaded word.

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    "Having no license at all" is not at all the same thing as being in the public domain. Software (like any written work) is copyrighted automatically as soon as it's written, and it's illegal to do anything with a copyrighted work without being granted a license to do so. The SQLite devs are using a pretty naive technique of attempting to explicitly abandon their copyright so as to put the code in the public domain, which (as the other answers to this question will explain in great detail) is utterly meaningless in many jurisdictions. – KutuluMike Jul 28 '15 at 17:23
  • From my analysis, SQLite is illegal. I really ought to do a throughout writeup of this… MIT is best, as @FreeRadical said, some others will look weird to lawpeople (say WTFPL). – mirabilos Jan 15 '16 at 11:32

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