Revisiting “In the Public Domain”

Friends, I recommend you run away from the movie SAS: Rise of the Black Swan. Really. Conserve your brain cells for a more worthwhile activity, like sniffing glue. But being a supporter of the arts, I inflicted it on myself a couple of months ago. For research purposes. As a result, I can report a deathless bit of dialogue at 1:19:35.

The sleazy head of BritGaz agrees to pay £500 million to terrorists. He then says, “Of course, this stays out of the public domain.” When I heard that, my jaw hit the floor.

The “Publicly Available” Meaning

You might recall my August 2021 post entitled oneNDA Is mediocreNDA: Thoughts on a Proposed Standard Nondisclosure Agreement (here). Here’s the relevant part:

Second, here’s the first exception to the definition of the defined term “Confidential Information”: “in the public domain not by breach of this Agreement”. As I explain in this 2018 blog post, use of the phrase public domain in this context is a mistake. I’ve long used it as a sign that the people responsible for an NDA don’t know what they’re doing.

Thanks to this post on LinkedIn by Simon Black and this comment by Stella Chen on my 2018 blog post, I began to assume that using the word “mistake” in my post was a, uh, mistake. And SAS: Rise of the Black Swan helped confirm that.

But I don’t recall previously ever coming across someone using (orally or in writing), outside of confidentiality agreements, the phrase public domain to refer to something as being, or not being, publicly available, as opposed to referring to the copyright status of a work of authorship that’s no longer subject to copyright protection or the status of formerly patented inventions and unpatentable inventions.

And it’s not as if I’m ignorant of usages employed in England: all my secondary and university education took place in England, and I’m constantly reminded that my word choice routinely skews to that of an English person, albeit one permanently stuck in Thatcher’s Britain.

So yes, my use of “mistake” was a mistake, but an irrelevant one. Here’s what I said in replying to Stella’s comment:

But my point is still valid. Using “in the public domain” to mean known to the public is wordy and old-fashioned, and mostly British. Furthermore, use of the phrase to express the copyright meaning is entrenched in legal circles in the US and England. So using the phrase to mean “known to the public” in a document intended to act as a standard for confidentiality agreements is a poor choice.

The Intellectual-Property Meaning

While we’re at it, let’s look at the other meaning of public domain.

I suspect that only people passingly familiar with intellectual-property concepts would know the IP meaning of public domain. And given the fusty “publicly available” alternative meaning of public domain, in a given context a reader might be confused as to which meaning is intended.

So I propose that when using public domain to express its IP meaning, you use a strategy I first tried out in this 2006 post about the phrase coupled with an interest: use the phrase public domain, but also explain what it means. That gives you the speed of messaging offered by a term of art while letting everyone else in on the secret.

Here’s what that would look like (emphasis added):

Except for portions that are in the public domain (that is, not subject to copyright protection), the Acme Products and related documentation are the property of Acme and are protected by law, including U.S. copyright laws and international treaties.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

4 thoughts on “Revisiting “In the Public Domain””

  1. I was drawn into law in late part by “public domain advocates” like Boyle and Lessig. I’m best known in practice for open licensing, very much adjacent to the “public domain”.

    Even among fellow specialists I think “public domain” belongs more to the activist side of things than the law-practice side of things. It’s a slogan more than a term of legal art, albeit a slogan than took off in part by borrowing airs of legal exactitude.

    Many leading advocates for the “public domain” concept in the 1990s and 2000s, like Boyle and Lessig, happened to be lawyers. But law professors, and professors at high caste law schools. Not trench dwelling deal dogs. They wrote mostly books for lay audiences. Popular press.

    The meaning is broad enough in activist parlance that it would be nonsensical to talk about material “in the public domain” that isn’t also publicly available. That went largely unsaid, at least explicitly. The Internet Revolutionary consensus was that more or less everything would end up publicly available anyway, given time.

    As for the movie, god knows. There’s a jargon kind of homonym across software and intelligence services on “open source”. Maybe somebody wanted to drop jargon for effect, but couldn’t make “I don’t want this going open source” intuitive, so they swapped in “public domain” by first association.

    Mostly I think we just expect words to do way more specific work than they’re up to. Especially we lawyers.

    • Yes, I assume the IP use of the term arose when someone just glommed onto a related phrase. But the IP use is with us, so I suspect it’s more productive to explicated it rather than try to banish it.

      Regarding the movie, the meaning intended was simply “publicly available,” in the foppish, old-fashioned, wordy Brit way.

  2. Ken:

    Having now enjoyed SAS: Rise of the Black Swan, I’m off to take your other recommendation of glue-sniffing. Does Elmer’s work?



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