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Since source code license is protected through the Copyright Law (Berne Convention to be precise), and all copyrighted material will be in public domain for certain number of years, depending on which country.

  1. Will a copyrighted source code, closed or open source, be in public domain once its copyright expires?

  2. For closed source, can I ask the company for the closed source code once it got expired (just assuming based on what I've understood so far :-) )?

  3. Assuming question 1 is true, how can I prevent a source code from getting into public domain once the copyright expires, if it's possible?

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You forgot question 0: Will the copyright on any code ever expire? –  Mike Seymour May 2 '11 at 11:42
Given if there are someone who is very persistent in lobby for extended copyright, then the expiration of the copyright will approach infinity :-(. –  OnesimusUnbound May 2 '11 at 13:25
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3 Answers

up vote 5 down vote accepted

Will a copyrighted source code, closed or open source, will be in public domain once its copyright expires?

In Copyright systems which serve the Public Domain, yes. All works, upon expiration of Copyright, are released into the Public Domain that year. There are some countries which do not have Public Domain within their Copyright regime, but I'm not aware of which countries these are.

But any country that is a signatory of the Berne Convention has a minimum Copyright term of 75 or author's life plus 50 years. In the United States, since the fairly recent Copyright extension act, that term is 95 or author's life plus 70 years.

For closed source, can I ask the company for the closed source code once it got expired (just assuming based on what I've understood so far :-) )?

If they don't release it, they are under no obligation to provide it. And, since most countries also have Trade Secret protections, their source code is protected as strongly as if it were under Copyright, until it's disseminated.

Assuming question 1 is true, how can I prevent a source code from getting into public domain once the copyright expires, if it's possible?

Under most systems, it's possible to re-introduce a work under Copyright if the new version has been sufficiently "transformed." The specific requirements differ between nations.

I'd like to point out, though, that re-introducing a PD work under a new Copyright has an unfortunate tendency to reduce the market for the work. There are numerous examples of this and numerous studies. Boldrin and Levine explain in detail.

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Regarding your reply for question #3, does it translate to updating the source code significantly? If so, for open source projects, for an example, I have project Sample 1.0 created on 2010, and when I sufficiently "transformed" the code, shown as version 2.0 on 2011, so the source code for Sample 1.0 will expire earlier than Sample 2.0 (assuming Disney failed to lobby the US congress to extend the copyright :-) ). –  OnesimusUnbound May 2 '11 at 12:54
@OnesimusUnbound: It depends on your local Copyright laws. Every country has different requirements for what constitutes a "new work." In the US, it may be as little as annotating the work, or it may be as much as changing its core functionality. –  greyfade May 2 '11 at 16:20
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  1. That's my understanding.

  2. I'm pretty sure that you can ask but also that they can refuse to provide it. Being in the public domain doesn't give the former copyright holder the obligation to freely distribute anything as far as I understand, they just can't anymore limit the rights of other people to replicate the work. (The code just goes into the public domain, it's not like it becomes copyleft)

  3. Call Disney and ask for the telephone of their lawyer and lobbyists. Might be expensive. Otherwise, just keep the code a trade secret, and so on.

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  1. According to the law and the constitution, yes. However see my answer to #3.

  2. According to current US law, no software created since the popularization of the personal computer will become public domain before 2050. And very little of it before 2070. See http://www.copyright.gov/help/faq/faq-duration.html#duration for details.

  3. For decades it has been the goal of Disney to keep Steamboat Willie under copyright. They have successfully changed the law multiple times towards that end, and there is no sign that they will fail in the future. Given the deference that the Supreme Court has given to Congress in this matter (particularly with Eldred vs Ashcroft) it is hard to imagine that they will fail to maintain this going forward. The result, despite the US constitution, is that essentially nothing has gone into the public domain in the lifetimes of most people alive in the USA. And there is no prospect of it happening any time soon.

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+1. Your third point, unfortunately, appears to be precisely accurate. –  Jerry Coffin May 2 '11 at 2:49
My rule of thumb is that you should assume that by the time any software enters the public domain, there will no longer exist any hardware capable of running it. –  Carson63000 May 2 '11 at 3:06
@Carson63000: Thanks to emulators I am not so pessimistic. However I probably won't be alive to see the release of any software that I care about, so it is kind of an academic. –  btilly May 2 '11 at 3:22
@btilly: I'm not quite so sure. For decades now, as soon as the "limited time" gets close to expiring of the early Disney works, they go to Washington with their money in hand. By the time they come back, the money's gone, but the law has changed to extend the period of time. The original intent was to allow a while after an author died so his widow would still have some support. We're now at the point that the author's great-grandchildren are the ones still being supported. "In the Year 2525", will anybody really want to emulate an 8088? –  Jerry Coffin May 2 '11 at 3:36
A more salient point is that most of us will be dead before any software Copyrights expire. –  greyfade May 2 '11 at 16:21
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