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For example, the works of Shakespeare and Beethoven, and most of the early silent films, are all now in the public domain by either being created before copyrights existed or leaving the copyright term.The term is not normally applied to situations where the creator of a work retains residual rights, in which case use of the work is referred to as "under license" or "with permission".As rights are country-based and vary, a work may be subject to rights in one country and be in the public domain in another.Some rights depend on registrations on a country-by-country basis, and the absence of registration in a particular country, if required, creates public domain status for a work in that country.Although the term "public domain" did not come into use until the mid-18th century, the concept "can be traced back to the ancient Roman Law, as a preset system included in the property right system." When looking at the public domain from a historical perspective, one could say the construction of the idea of "public domain" sprouted from the concepts of res communes, res publicae, and res universitatis in early Roman law.When the first early copyright law was first established in Britain with the Statute of Anne in 1710, public domain did not appear.However, similar concepts were developed by British and French jurists in the eighteenth century.

The French poet Alfred de Vigny equated the expiration of copyright with a work falling "into the sink hole of the public domain" and if the public domain receives any attention from intellectual property lawyers it is still treated as little more than that which is left when intellectual property rights, such as copyright, patents, and trademarks, expire or are abandoned.Definitions of the boundaries of the public domain in relation to copyright, or intellectual property more generally, regard the public domain as a negative space, that is, it consists of works that are no longer in copyright term or were never protected by copyright law.According to James Boyle this definition underlines common usage of the term public domain and equates the public domain to public property and works in copyright to private property.However, the usage of the term public domain can be more granular, including for example uses of works in copyright permitted by copyright exceptions.Such a definition regards work in copyright as private property subject to fair use rights and limitation on ownership.

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