A copyright work is an original intellectual creation of the author, expressed in a certain form, regardless of its artistic, scientific or other value, its purpose, size, content and manner of expression, as well as the permissibility of publicly communicating its content.

The Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”), as the oldest and most significant international treaty on copyright protection, defines the concept of a copyright work, determining it in the broadest possible scope. Literary and artistic works include all creations from the literary, scientific and artistic domain, regardless of the manner and form of their expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

The Berne Convention prescribes a minimum term of protection of copyright for the life of the author and 50 years after his or her death, leaving member states the possibility to provide for a longer term of protection. Following the model of European Union law (acquis communautaire) and the Directive on the term of protection of copyright and certain related rights of the European Union (Directive 2006/116/EC), the legislation of the Republic of Serbia adopted such a longer term of protection as early as 2004.

According to the regulations of the Republic of Serbia, the economic rights of the author last for the life of the author and 70 years after his or her death (post mortem auctoris), while the moral rights of the author continue even after the expiry of the economic rights. This is a global standard representing a balance between the interests of the author and his or her legal successors, on the one hand, and the interests of society, on the other.

Time limits for the purpose of determining the date of expiry of the author’s economic rights are calculated from 1 January of the year immediately following the year in which the event relevant for the commencement of the term occurred.

Unlike the global standard adopted in the European Union and in countries seeking harmonisation with the acquis communautaire, in the United States of America, the duration of copyright depends on the date of publication of the work. For works created before 1 January 1978, protection lasts for 95 years from the first publication, while for works published after 1 January 1978, protection lasts for the life of the author plus an additional 70 years after death.

Use of Copyright Works in the Public Domain and Limitations

After the expiry of the term of protection, a copyright work enters the public domain, meaning that the work is no longer protected by exclusive economic rights, i.e. it becomes a shared cultural resource, freely available for use, copying, distribution, adaptation or even commercial exploitation without the need for permission or payment of fees. The creative industry can implement this rich source of inspiration into new projects without the risk of copyright infringement. This freedom to use and reinterpret public domain works unlocks immense creative potential, enabling innovative artistic projects which, like the original work, shape cultural heritage, but it is neither absolute nor unlimited, as other intellectual property rights, as well as certain other rights in general, may remain in force.

Moral rights of the author continue even after the expiry of economic rights, so the author’s legal successors still enjoy exclusive rights with respect to the corpus of moral rights, such as the right of attribution, the right of disclosure, the right to respect the integrity of the work and the author’s personality, and the right of withdrawal, which may limit the use of the work.

On the other hand, certain countries retain the right to limit the use of works in the public domain through cultural heritage regulations.

Italy and Greece, for example, through specific sets of regulations based on the protection of cultural heritage, prescribe conditions for the use of publicly available works, such as prior authorization and the payment of fees for certain uses, even when the original work is in the public domain.

The Italian Code of Cultural Heritage and Landscape (Codice dei Beni Culturali e del Paesaggio) enables all Italian public cultural heritage institutions, such as the Uffizi Gallery, to initiate legal proceedings for infringement of intellectual property rights in respect of works created centuries before modern copyright laws were even enacted, whenever there is unauthorized use or reproduction of their artworks and cultural assets. This law provides for a derogation from the usual term of protection for works considered particularly important for the country’s cultural heritage, in order to protect them from “unwelcome uses” that could threaten their cultural, artistic and moral values, by prescribing conditions in the form of prior authorization for such use, the conclusion of licensing agreements and the payment of fees, the amount of which is determined in accordance with the specific circumstances.

On the basis of the Italian Code of Cultural Heritage, in 2022 the use of Botticelli’s work “The Birth of Venus” was restricted in the collections of fashion designer Jean-Paul Gaultier, who used the said work in his fashion collection without the authorization of the Uffizi Gallery. In contrast to this case, the Spanish fast fashion brand Zara also used elements of the said work in its collection in 2022, but under a valid license, which was clearly indicated on the clothing: “Birth of Venus © 2022 Photo Scala, Firenze”.

Such a regulatory framework indicates a potential conflict between two legitimate principles – on the one hand, the protection of cultural heritage, which in certain situations may limit freedom of expression and creative reinterpretation, and on the other hand, the freedom to use works in the public domain, which, if applied without limitation, may lead to the banalization or degradation of the cultural integrity of such works.

In certain countries such as France, other specific systems are also known which extend the duration of copyright. Antoine de Saint-Exupéry died in 1944, based on which it might be concluded that the economic copyright in his work expired as early as 2014. However, such a view is incorrect due to the specific rule of extension due to wartime circumstances (prorogations de guerre). This rule was introduced after the world wars in order to compensate authors affected by the conflicts. French law thus provides for an additional 30 years of protection for authors officially recognized as having “died for France”, as is the case with the renowned writer Antoine de Saint-Exupéry, who died during service in the French Air Force. For this reason, the work “The Little Prince” is still not in the public domain, and depending on the applicable calculations, copyright protection will expire between 2033 and 2045.

Works Entering the Public Domain in 2026

This year, a wide range of copyright works by authors who died in 1955 in Europe enter the public domain, such as:

• Musical compositions by George Enescu and Arthur Honegger
• Compositions by Charlie Parker
• Paintings and other artistic works by Nicolas de Staël, Max Pechstein, Maurice Utrillo and Fernand Léger
• Literary works by Thomas Mann and Concha Espina
• Papers and publications by Albert Einstein.

In the United States of America, works created in 1930 enter the public domain in 2026, which were already open to reproduction and distribution in the EU. This is, for example, the case of Faulkner’s “As I Lay Dying”, and the first version of Betty Boop from 1930 in Dizzy Dishes, whose later versions of the character remain protected by copyright.

In Serbia, this year, works by authors who died in 1955 enter the public domain, including Stanislav Vinaver, a well-known poet, literary critic and translator.

Differences in the duration of copyright protection between European and American legislation are also evident here.

Einstein’s Relativity: The Special and the General Theory (Relativitätstheorie: Die spezielle und die allgemeine) was first published in German in 1916, and translated into English in 1920. The English edition entered the public domain in the United States of America in 1995, as the year in which seventy-five years from its publication expired, at a time when that was the term of protection for works created before 1978. In contrast to this regime, in the European Union and in most of the world, where copyright lasts 70 years calculated from the author’s death, Einstein’s Relativity: The Special and the General Theory enters the public domain this year.

The Public Domain – Open, but Not Unlimited

The entry of copyright works into the public domain does not represent merely a formal expiration of protection, but also the transition of those works into a shared cultural space more accessible than ever before. Works of authors such as Einstein, Thomas Mann, Charlie Parker or Stanislav Vinaver become a basis for new interpretations, research and creative expressions, thereby confirming that the public domain plays a key role in the development of contemporary culture and the creative industries.

At the same time, practical examples, particularly in the field of cultural heritage protection, indicate that the limits of this freedom are not absolute. Excessive protection may lead to a form of “re-privatization” of the public domain, while completely unrestricted freedom may result in the banalization of cultural heritage. The balance between preserving cultural integrity and freedom of creation remains dynamic and often contested, confirming that the legal regime of the public domain is not merely a question of the expiration of time limits, but also of the broader social and legal context in which such works are used.

This article is to be considered as exclusively informative, with no intention to provide legal advice. If you should need additional information, please contact us directly.