Why Open Access is not the same as Public Domain

I recently had a conversation with a university colleague which went something along the lines of “You work with Open Access content.  If an image is available for free on the internet without a copyright symbol or watermark it’s free to use, right?”  Admittedly part of my brain wanted to run away screaming from the assumptions implicit in the question, but after thinking about it a little, thought it would be more helpful to summarise it here.

1. Open Access is defined by the Budapest Open Access Initiative as ” free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.”
2. Works in the Public Domain may be freely used, but not necessarily any image found on the internet.  It doesn’t matter if a work has a copyright symbol on it or not, copyright is automatic.  It’s best to stick with works you know are in the Public Domain or have a visible licence, such as Creative Commons licence.
3. Works enter the Public Domain in three main ways
   1. Copyright expires
      1. copyright has a duration, often 50-70 years after the death of the creator
   2. It wasn’t eligible for copyright protection
      1. Not everything is subject to copyright, such as ideas and facts.  However, some other rights may apply where copyright does not.
   3. The copyright holder assigns the work to the Public Domain prior to the expiry of copyright
4. What can be done with work in the Public Domain?
   1. Almost anything!
   2. Firstly you’ll need to check where the work is in the Public Domain.  It may not be in the Public Domain everywhere.
   3. Moral rights may continue to exist in works that have otherwise entered the Public Domain.
      1. The creator may still need to be acknowledged.
      2. The creator may object to some uses of their work.
   4. Other legal rights may apply, such as a Trademark
5. Where can works in the Public Domain be found?
   1. There are lots of options in this Bodleian Libguide.