Glossary: Difference between revisions

Latest revision as of 15:14, 20 January 2012

Academic Exception

Academic exception is the exception for teachers and academics to the general rule that employers hold copyright in the creative works produced by their employees in the course of their employment.

Unlike the a work-for-hire situtation, academics typically retain the copyrights in the scholarly work they produce and may retain, sell or assign those copyrights, or dedicate them to the public domain, at their discretion.

See also:

Other resources:

A scholarly paper on the academic exception [Canadian, access required]
A brief discussion of the academic exception
An article on Harvard’s open access policy

“Actual Knowledge”

Having direct knowledge (as opposed to merely having reason to believe) that copyright infringement is occurring.

Some copyright laws require web hosts to remove content from their servers if they posses "actual knowledge" that the content infringes copyright. Under such laws the hosts may become liable if they do not remove the content.

For example, Section 512(c) of the U.S. Digital Millenium Copyright Act reads:

“(c) Information Residing on Systems or Networks At Direction of Users. (1) In general. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider (A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

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American Library Association (“ALA”) Code of Ethics

The voluntary code of ethics adopted by the American Library Association to govern the work of librarians.

The code makes “known to the profession and to the general public the ethical principles that guide the work of librarians, other professionals providing information services, library trustees and library staffs.” Its tenets “provide a framework; they cannot and do not dictate conduct to cover particular situations.”

Other resources:

Text of the code

Anti-Counterfeiting Trade Agreement (“ACTA”) Proposal (2007)

A proposed multi-lateral trade agreement that is designed to better enforce intellectual property rights by combating the perceived increasing threat of counterfeiting.

This counterfeiting in question can be of physical goods and copyrighted works, as well as digital and Internet-based materials and technologies. Specific details of the Agreement’s content are still mostly a secret, and some countries, including the United States, restrict access to it on the basis of national security. The Agreement is generally understood to supersede or bypass UN, WIPO and TRIPS guidelines, and would, among other things, make all peer-to-peer filesharing illegal, regardless of content.

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Assignment

The means by which ownership of a copyright is transferred to another person or entity.

For example, musicians often assign the copyright to their music to their publisher or record company as part of their contract, although this is not a requirement.

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Author

The original creator of a work.

While the word “author” is used in common vernacular to identify the person who wrote something, such as a book, paper, or article, the term "author" is used in copyright law to identify the creator of any work. Thus, a sculptor, artist or photographer would be considered the "author" of his or her work.

If a copyright is assigned or transferred to a second person or entity, that person does not become the author, merely the new rights-holder. The original author always retains that status or description, and in some legal regimes, has certain rights that cannot be assigned, altered, or renounced.

In countries that recognize the work-for-hire doctrine, the employer can be considered the "author" of the work.

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Berne Convention for the Protection of Literary and Artistic Works

The Berne Convention is an international copyright agreement that was first adopted and implemented in 1886. Its intent was to harmonize copyright law across national borders. There are currently 164 member countries.

According to Wikipedia, “The Berne Convention was revised in Paris in 1896 and in Berlin in 1908, completed in Berne in 1914, revised in Rome in 1928, in Brussels in 1948, in Stockholm in 1967 and in Paris in 1971, and was amended in 1979. The UK signed in 1887 but did not implement large parts of it until 100 years later with the passage of the Copyright, Designs and Patents Act of 1988.”

The Berne Convention is currently active and is administered by the World Intellectual Property Organization (“WIPO”).

While the convention grants authors an array of rights, the most important aspect of the Berne Convention is that countries must grant an author that is a citizen of another member country the same protections it offers its own citizens, in addition to any rights that the convention itself grants. That is to say, a French citizen’s work in Poland or Morocco automatically enjoys the same protections that the work of a Polish or Moroccan citizen would.

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Bilateral Agreements

A bilateral agreement is an agreement or treaty made directly between two countries.

This is in contrast to a “multilateral” agreement or international agreement such as the Berne Convention or TRIPS. While some bilateral agreements deal exclusively with copyright, copyright provisions may be inserted in to other, larger treaties, such as peace treaties or economic treaties.

In a bilateral agreement, an author from one country can claim copyright protections in the other country. Such agreements are often used to create copyright protections or provisions that are more stringent, or more generous, than would be possible in a broadly multinational agreement.

A Berne Convention member country may enter into bilateral agreements as long as the provisions of those agreements meet the minimum standards of the Berne Convention. For instance, although it is a member of the Berne Convention, the TRIPS Agreement, and other multilateral agreements, the United States has bilateral agreements with many different countries.

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Blanket license

A blanket license allows a user to engage in certain uses of a large number of works under preset terms, without individual negotiation.

In the copyright context, such a license addresses all of a defined group of copyrighted works. It “covers” all of the relevant works like a blanket. In this way, it makes it easier to negotiate for the use of a work by making it possible to only make a deal once rather than entering into many separate agreements.

Usually, such licenses are granted and managed by collective rights management groups, which control access to thousands, or even millions, of copyrighted works.

See also:

Collective Rights Management Organizations

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“Browsewrap”

“Browsewrap” is a slang term for a contract governing access to or use of content on a website that does not require the website user to click on a button or otherwise take action to expressly manifest consent to the terms of the agreemen. Typically, the Internet user is considered to have agreed to the terms of the browsewrap agreement by accessing or “browsing” the website.

The terms of a browsewrap agreement governing access to a website are not always prominently displayed to the Internet user, and instead are often listed on a separate page that can only be accessed by clicking a link at the bottom of the screen. For this reason, some commentators question whether browsewrap agreements create enforceable contracts.

See also:

Clickwrap

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“Cease-and-desist” letter

A letter sent to an alleged copyright infringer or the entity hosting allegedly infringing material, requesting that certain activities be ceased or that access to the allegedly infringing material be disabled.

With respect to Internet content, a cease and desist letter can take the form of a "takedown notice.”

'Under the U.S. copyright legislation known as the Digital Millenium Copyright Act, a copyright holder who believes that a website is infringing the holder’s copyright, usually by hosting protected material without permission, can send a cease-and-desist letter to the entity hosting the material. The website will not be held liable if it immediately takes down the allegedly infringing work upon receipt of the takedown notice. There are procedures under which the person who posted the content can challenge a takedown notice, and have access to the restored.

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CISAC

The International Confederation of Societies of Authors and Composers. CISAC is an organization composed of numerous national preforming rights societies.

According to its website, CISAC “works towards increased recognition and protection of creators’ rights. CISAC was founded in 1926 and is a non-governmental, non-profit organisation. Its headquarters are in Paris, with regional offices in Budapest, Buenos Aires, Johannesburg and Singapore. . . . . As of June 2008, CISAC numbers 225 authors’ societies from 118 countries and indirectly represents more than 2.5 million creators within all the artistic repertoires: music, drama, literature, audio-visual, graphic and visual arts.”

“Clickwrap” or "Click-on"

Clickwrap or Click-on is a license agreement for a website or software to which the user agrees by clicking on a button or link.

Once the user clicks on the “I accept” or “I agree” button or link, thereby accepting the license, he or she can access the copyrighted material and is bound by the terms of the licensing agreement. An “End-User Licensing Agreement” or “EULA” is a classic example of a “clickwrap” agreement. Since the user has no choice except to accept the licensing contract in order to access the content or program, in recent years, both courts and public opinion have begun to perceive these sorts of agreements as at least potentially oppressive.

See also “shrinkwrap contract," “contract of adhesion”

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Choice of Laws

The doctrine by which a court or other tribunal determines which country’s or jurisdiction’s laws will apply to a particular case or claim.

In any legal dispute that crosses political borders, whether domestic or international, there is a question of which laws will apply to the dispute. Such cross-border disputes are increasingly common in the Internet era. For instance, if an Internet user in Italy accesses a server in Sweden, and downloads a copy of a song by a U.S. recording artist, what laws should apply? Where should the trial be held?

A court hearing a suit like this will review the facts and decide what location makes the most sense for the trial, and will also decide which jurisdiction’s laws should apply. It is possible, when writing a contract, to specify what laws will govern in the event of a dispute. Occassionally, the laws of more than one country or jurisdiction might apply to different issues or claims in the same litigation.

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Circumvention

The act of avoiding, breaking or otherwise bypassing protections on digital content and technology.

Many digital or electronic resources, including online databases and software, come with built-in protections which in theory prevent illegal copying or impermissible uses. For example, DVDs may have a “region code” embedded in their data that prevents them from being played on DVD players from different parts of the world. Likewise, software may have added code, or encryption, which prevents it from being copied.

Although these technological barriers may arguably help to protect illegal copying or use of content, they can also get in the way of legitimate uses, such as playing a DVD on a Linux-based player, or making an archival copy of software. A user who wants to do these things will therefore have to circumvent, or break, the protection measures. However, this is illegal to do in many countries.

Notably, in the United States, Section 1201 of the Digital Millennium Copyright Act (1998) specifically forbids circumvention of technological protection measures, and even makes it illegal to sell or own anything that facilitates circumvention.

Laws like Section 1201 are controversial, because from one perspective, the protections a law like this facilitates are parallel to, and can last longer than, those offered by copyright. This arguably defeats the purpose of copyright law’s limited duration protections, violates copyright’s implicit bargain with the public and harms the public domain.

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Copyright

The set of rights granted to the author of a creative work that govern certain third party uses of the work.

These rights vary from country to country, although there is substantial international harmonization. They can typically be divided into economic rights and so-called “moral” rights.

With respect to the economic rights, they essentially represent a temporary monopoly over the creative work in question. In theory, this monopoly control is supposed to incentivize and reward creator, convincing them to create more. However, when the term of copyright ends, the work belongs to the public. The public’s gains from the creation of new works is thought to compensate for the inefficiencies that a monopoly represents. Economic rights are truly “property” in that they can be sold, assigned, inherited, divided up, and more.

With respect to “moral” rights, these belong to the author at the moment of creation, and cannot usually be transferred to anyone else.

See also:

Rights

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Common Law

A legal system based primarily on custom and the precedent of court decisions.

International legal systems tend to fall into one of three categories. Typically found within countries that have some historical connection with the United Kingdom or the former British Empire ,“common law” systems have a legal system based primarily on custom -- the precedent set by court decisions (“case law”) , in contrast to civil law systems or religious law systems.

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Collective Rights Management Organization/Society

An organization that controls the economic rights to a large number of creative works.

Also known as “collecting society” or a "copyright collective.”

A collective rights management organization or society most often deals with the rights to music and text. These groups lower the transaction costs of acquiring rights and make it easy for would-be users of copyrighted works to get permission to do so. With a collective rights group, there need only be one set of negotiations and one fee paid, regardless of how many different works are used. Compare having to find and negotiate with the rights-holders for one hundred different songs with negotiating a single contract.

While groups like this undoubtedly solve a market problem, criticisms leveled against them include that they do not channel enough of the fees they receive to the actual artists, and that they seek to unfairly charge for uses over which they should not have control. Also, most notably, there are no collective rights groups managing the rights to sound recordings, which has led to much controversy over sampling.

Some collective rights management organizations include:

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Compulsory License

A license for use of copyrighted material that is mandated by law to be made available to everyone on an equal basis, usually in exchange for the payment of a set fee.

From the user’s perspective, it is a use for which the user does not need to seek permission. That is, the rights-holder may not refuse to grant the license to the user. The rights-holder still has the right to whatever revenue comes from the use, but has no rights of control.

Such licenses are always non-exclusive, since anyone can obtain one, and the fees that are paid to the rights-holder for them are usually set by statute. An example of a compulsory license is the so-called “mechanical license” under U.S. law for recording a new version of an existing song. Once a song has been released to the public, any other artist may record a version of it, and must pay a set fee (currently 2.5 cents per copy) to the rights-holder of that song.

This is not the only example of a compulsory license. There is a wide variety, whose nature and terms depend on the laws of the country in question and the nature of the work. Compulsory licensing schemes exist for music, text, pharmaceuticals and more.

Recently, some copyright scholars and activists have proposed that the solution to the perceived problem of peer-to-peer filesharing will be some sort of compulsory licensing scheme. Filesharing would become legal, but artists would get paid, most likely out of a fund created by levying taxes on recordable media and associated technologies.

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Civil Law

A legal system in which the law is based almost exclusively on legislation.

Such a system is as opposed to a common law system (based on tradition and court decisions) or a religious law system. Civil law regimes tend to be either inspired by or directly descended from Roman legal systems.

According to Wikipedia, “The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. It is the most prevalent and oldest surviving legal system in the world.”

Most of Europe and its former colonies have civil law-based legal systems, many of which hearken back to the Napoleonic Code.

This version of civil law is not to be confused with the sort that occurs in the civil law / criminal law distinction, in, among others, U.S. law.

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Commons

This term refers to both the property that is owned by the community in general and the social regime for governing usage of that resource.

Some historical commons were truly open to all, but some were governed by rules that limited access. However, despite what might seem like a complete lack of any rules for governing the maintenance and usage of a commons, they were historically at the center of a complex web of social norms, and were well-monitored and maintained.

In the late 1960s a school of thought emerged whcih claimed that any real commons would quickly be over-exploited by an economically rational user, and that only private ownership could successfully manage societal resources.

Although this idea was quickly and widely accepted, it has been challenged in recent years for misstating the facts surrounding historical commons, as well as for overlooking the real problems that can arise from complex webs of private ownership, a problem Michael Heller has called “the tragedy of the anti-commons.”

With respect to copyright, the commons is the enormous body of creative work to which all of society has access. Some is historical; some is contemporary. Everyone having access to them does not necessarily mean that no one holds copyright in the works that make up the commons. Some works are in the public domain, which means that not only can anyone access them and make use of them, but that no one has the right to restrict their usage in anyway. On the other hand, works existing under regimes such as Creative Commons, or the GPL license , as well as so-called “Open Access” journals, are examples of copyright-controlled information that is nonetheless part of the commons. For example, the works of Shakespeare, or a culture’s folktales, are part of the commons, as is any modern work which its author has dedicated to the public domain. Further, any work to which anyone has access, but for which the usages are restricted (usually with respect to keeping further uses of the work open to access) are still considered part of the commons.

See also:

Public Domain

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Compilation

A work that gathers together other previously existing copyrighted works or facts.

For example, an anthology of stories is a compilation. A recording that brought together songs from a wide variety of artists, such as a soundtrack album, would be a compilation. A database is also a compilation, of facts rather than creative works. In many jurisdictions, it is possible to hold a separate copyright in a compilation that is independent of any copyright in the works that make it up, as long as there is sufficient creativity in the selection and arrangement of the works. It is also possible to hold copyright in a database, based on the selection and arrangement of its factual elements, or alternatively, based on the effort that went into creating it.

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CONFU

An abbreviation of the “Conference on Fair Use.”

The Conference on Fair Use was a series of meetings held in the United States in the mid to late 1990s. The purpose of CONFU was to have a meaningful discussion about “fair use” in an increasingly digital age, especially for academics and librarians. However, due in large part to fundamental disagreements among the various represented interest groups, the meetings failed to achieve any meaningful consensus.

See also:

Fair Use

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Counterfeiting

Counterfeiting is the practice of making illegal copies of something and then attempting to pass the copies off as the real thing.

Almost anything can be copied, whether currency, material goods, or intellectual property. A counterfeiter hopes to take advantage of any positive reputation that the original enjoys without having to invest time and resources in creating it. Counterfeits damage the original by competing with it in the marketplace and by hurting the original’s reputation.

Other resources:

IP Law organization analysis of French court ruling about counterfeiting

Course Pack

A collection of documents put together by a teacher as a resource for students in a particular course or class.

Often, teachers with a specific curriculum in mind will wish to assemble their own materials rather than teach from a particular textbook. As a corollary to this, a teacher creating a curriculum drawing on a wide range of resources may wish to simply provide her students with only the materials they need, rather than requiring them to purchase many books, often at great cost, each of which will contain only a small piece of the curriculum, and the majority of the contents of which will be superfluous.

Of course, creating such a “course pack” necessitates the copying of the relevant works, implicating copyright law. Such copying may or may not fall under fair use, fair dealing, or other exceptions to copyright, depending on the circumstances and the jurisdiction. There have been two seminal cases in the United States dealing with course packs and copyright, both of which were resolved against the universities in question. It is noteworthy, though, that each of those cases involved a for-profit copying service.

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Creative Commons

“Creative Commons is a nonprofit corporation dedicated to making it easier for people to share and build upon the work of others, consistent with the rules of copyright.”

The above definition comes from the Creative Commons website. The organization was founded in 2001 by, among others, Harvard Professor Lawrence Lessig. Its goal was to provide simple, easy to understand and use copyright licenses that would allow creators to share their work with the world under terms they were comfortable with, so people can share, remix, and/or use them commercially, rather than the default terms offered by statute. Currently, Creative Commons offers 6 different licenses (in 50 countries and counting), whose features vary according to the uses they allow. The existence and terms of these special licenses are communicated to users by employing both the Creative Commons name and a series of icons that suggest the specific terms of the license.

A 2008 U.S. case, Jacobsen v. Katzer, concerning later usage of software licensed under a license similar in style and intent to those offered by Creative Commons held that the license was a valid one, and that violating it terms constituted copyright infringement. The ruling greatly strengthened the enforceability of such agreements, helping their use to be perceived as more mainstream and legitimate.

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Collective work

A creative work that represents the creative input of more than one author.

When two or more people share the copyright in a work they are referred to as “joint authors” A movie is a classic example of a collective work, involving as it does the efforts of hundreds, if not thousands, of people. Nevertheless, the rights to collective works are usually held by only one, or at most a few, people. In the case of a movie, most of the people working on it are treated, by their contract, as employees, rather than as joint authors.

Damages

The money given to a copyright holder to compensate him or her for the harm caused by infringement.

Whenever the copyright in a work is infringed, there is at least the theoretical possibility that the legal holder of the copyright has been harmed in some way. If the rights-holder sues the infringer and wins, a court may award damages to the rights holder as way of compensating them for any damage that has been done. A rights-holder may seek actual or statutory monetary damages,depending on which she thinks are more valuable, or easier to determine, or an injunction compelling the defendant to cease the infringing activities.

Actual Damages

Actual damages represent the true cost of the harm suffered as a result of the infringement.

For example, if it were possible to determine exactly how many sales had been lost as a result of an act or acts of infringement, it would be possible to calculate actual damages. One thousand sales lost, at a profit of ten euros a sale = ten thousand euros damages. In practice, it can be very difficult to accurately calculate actual damages. When this is true, statutory damage provisions will frequently be used instead.

Statutory Damages

Statutory damages are damages where the amount of money a rights-holder may collect as damages is set by statutes.

Many legal regimes contain provisions for statutory damages. For example, in US law, 17 USCA 504(c) states that “Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.” For willful infringement, the amount can go up to $150,000!

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Database

A database is a collection of data on a particular topic or topics, usually searchable, aggregated into one place.

Databases have an unusual relationship with copyright. The creator of a database can hold copyright in the database, but only in certain aspects of it, because the contents of a database are either facts, in which case they aren’t copyrightable at all, or they are non-factual, but therefore already under copyright, and controlled by different rights-holders. However, a lot of work can go into creating a database, and some jurisdictions recognize and protect that labor.

For example, in the U.S., the copyright in databases is colloquially known as “thin” ( as opposed to "thick") and is only in the selection and arrangement of the materials. On the other hand, in the European union, databases receive 15 years of protection to protect the investment of time, money and resources on the part of the database creator.

See also:

Compilation

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Datamining

The practice of sifting through large quantities of data, often in a database, to identify and make use of the patterns and details that emerge.

For example, consumer goods corporations mine the data generated by frequent shopper cards in order to better target advertisements. The company Google mines the data generated by the searches it performs to more accurately perform subsequent searches and to effectively target the advertisements that are alongside. Scientists mine the data generated by large-scale surveys of natural phenomena, whether astronomical observations or genetic codes.

Depending on the sort of data being mined, privacy issues can become a very real and important concern.

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Derivative work

A derivative work is one that adapts or modifies an existing work, drawing on that work for its substance and general material.

A film based on a novel is a derivative work of that novel. An action figure based on a character from an original film is a derivative work of the film.

A derivative work may or may not be copyrightable on its own, depending on how much original material it contains, and whether permissions were granted for the copied material. The U.S. copyright office says “To be copyrightable, a derivative work must be different enough from the original to be regarded as a new work or must contain a substantial amount of new material.”

For example, Alfred Bester’s novel The Stars My Destination is inspired by and modeled after Dumas’ The Count of Monte Cristo. It is arguably a derivative work of that older novel. However, Bester's book clearly has sufficient original material to qualify for copyright protection on its own, and further, is original enough that it would not infringe copyright in Dumas’ book, were that book still protected by copyright. On the other hand, an independent screenwriter's new screenplay featuring the "Rocky" character made famous by Sylvester Stallone was found to be clearly a derivative work, in which no copyright could be had.

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DMCA

The DMCA is the short name for the Digital Millennium Copyright Act.

The DMCA is copyright legislation that was passed in the United States in 1998. Its intended purposes were to bring U.S.copyright law more into harmony with international norms and to address many of the new concerns that digital technology and file-sharing raised. The DMCA contains the now-notorious anti-circumvention provisions, which made it illegal, even for a legitimate user, to avoid, break or disable any technological measures protecting content. It also created what are known as “safe harbors”, descriptions of behavior where Internet service providers could be certain they would not be legally liable for the actions of their users.

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DRM

DRM, or “Digital Rights Management” is a catch-all term for any technological measures, usually but not always software-based, that are put in place to protect copyrighted content.

DRM usually works by restricting access to the content in some way. DRM applies to all would-be users of the content, event those who have purchased it, or the right to access it, legally. Most DRM techniques are also easily circumvented by a technically adept and/or determined user. Therefore, DRM has the net effect of inconveniencing legitimate users, sometimes seriously, and being a minor inconvenience at best for professional criminal users. Additionally, certain forms of DRM can raise serious privacy concerns, as well as call into question the very idea of “ownership” of digital information.

For these reasons, DRM has been heavily criticized, and there may be a trend in the content industry away from its use. For example, after many complaints from users, iTunes and Amazon now offer DRM-free music downloads, and most of the major record labels have given up on DRM for digital music. However, the Recording Industry Of America, and the Motion Picture Industry of America have both said that they see DRM being part of their business models for the foreseeable future.

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Due diligence

Due diligence refers to the level of effort someone must make in order to have fulfilled their legal duties in a particular situation.

It is the standard of care that person must exercise. In the copyright context, the term is most often encountered with respect to the necessary efforts a would-be user of content must make to locate the holder of the rights in a particular piece of content. This has become an important concept recently with respect to so-called ”orphan works” and the Google Book Search project.

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Economic Rights

The rights associated with copyright that allow the rights holder to exercise control over use of the work for economic benefit.

Economic rights include, among others, the right to make and sell copies, to perform the work publicly, and to prepare derivative works.

eIFL

A nonprofit organization that advocates for access to library resources across the world.

According to eIFL's website:

“eIFL.net is a not for profit organisation that supports and advocates for the wide availability of electronic resources by library users in transitional and developing countries.

"eIFL’s core activities are negotiating affordable subscriptions on a multi-country consortial basis, supporting national library consortia and maintaining a global knowledge sharing and capacity building network in related areas, such as open access publishing, intellectual property rights, open source software for libraries and the creation of institutional repositories of local content.

The eIFL.net vision is to provide leadership and be a strong international advocate for expanded availability of electronic resources and to enhance the skills base of eIFL.net library consortia, so that they are at the leading edge of developments. eIFL.net’s mission is to: (1) assist in the building of strong national consortia; (2) be the premier multi-country negotiator for securing affordable commercial electronic information services; (3) provide strong advocacy and support for the development and accessibility of local digital resources; (4) provide an effective central advisory and capacity building program in open access publishing, copyright and free and open source software for libraries (5) leverage multi-national expertise and resources to fulfill this mission; (6) provide top quality educational and consulting services; (7) be an advocate for the adoption and advancement of effective information distribution models; and (8) develop model partnerships with global funding agencies, foundations, consortial groups, and content providers.”

Exceptions and Limitations

The exceptions and limitations to the otherwise exclusive rights of a copyright holder.

While copyright is usually conceptualized as the granting of a monopoly for a limited period of time, there are nearly always exceptions and limitations to the otherwise exclusive rights of a copyright holder. These can be statutory or customary and represent uses for which a user need not get permission, or for which fees are preset, or something else that places limits on the monopoly of the copyright holder. These exceptions and limitations are often driven by public policy concerns.

“Fair use” in U.S. law and “fair dealing” in some other parts of the world, are classic examples of doctrines that place a limitation on the copyright holder’s monopoly. Any form of compulsory licensing would be another. Some exceptions are directed at particular classes of user, such as the exceptions pertaining to making copies for the disabled.

Rule-based

Rule-based exceptions are those whose qualities are described in specific detail, so that a particular use either does or does not qualify as an exception.

The Chafee Amendment in U.S. Copyright law that exempts the making of copies for the disabled is an example of a rule-based exception.

Guideline-based

A guideline-based exception or limitation is one that sets forth one or more factors to consider when determining whether a particular use is fair, rather than hard and fast bright-line rules.

Any particular use must be evaluated on an individual basis to determine if it qualifies for the exception. For example, the “fair use” doctrine in U.S. law, which lists four non-exhaustive factors and partial list of suggested fair uses, is a guideline-based exception.

Library exceptions

Libraries are often treated as a special sub-class of users of copyrighted material because of the public nature of their mission and the strong public policy arguments in their favor. As such, they enjoy a unique set of exceptions and limits on copyright law in many countries. While the copyright law concerning libraries varies from country to country, there are some near-universal general exceptions for libraries.

Preservation

Libraries are frequently permitted to make copies of works in order to preserve them, or for archival purposes, without violating the copyright in those works.

This is in line with the traditional role of libraries as repositories of knowledge.

Loaning

Under certain circumstances, libraries are permitted to make copies of copyrighted works for the purpose of loaning them to patrons or to other libraries without violating the copyright in those works.

Research

Libraries are often permitted to make copies of copyrighted works for research purposes (whether their own or that of their patrons) without violating the copyright in those works.

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“Fair Use”

A tenet of U.S. copyright law that describes the circumstances under which one can sometimes make use of protected works without first getting permission or paying the rights holder.

Fair use is a tenet of U.S. copyright law, found in 17 U.S.C. section 107. It is often referred to as a “safety valve” for free speech and is one of the two aspects of U.S. copyright law that help to prevent copyright’s monopoly from interfering with freedom of speech, another important U.S. right enshrined in the U.S. Constitution. (The other aspect of U.S. copyright law that seeks to balance the copyright monopoly against the public's interest in free speech is the idea/expression dichotomy.)

Fair use is a set of guidelines, rather than a rule, and is evaluated on a case-by-case basis according to four non-exclusive factors. These are:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

The nature of the copyrighted work;

The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

The effect of the use upon the potential market for, or value of, the copyrighted work .

Because of its status as a "safety valve" for speech, fair use is often called upon or relied on by content users attempting to assert their rights under copyright law. However, because fair use is not clearly defined and can be hard to interpret, and because a copyright lawsuit can be extremely expensive, many users are scared or reluctant to rely on fair use when they use copyrighted works. This, in turn, has led to an effort by some groups to “reclaim fair use” for the public, and prevent what author Lewis Hyde has called “the third enclosure” of the common, that of the mind.

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“Fair Dealing”

The term used in the United Kingdom and other Commonwealth nations to describe the circumstances under which one can use copyrighted works without payments or permission.

Somewhat similar to the concept of “fair use” in the United States, “fair dealing” is found in many common law jurisdictions, such as Canada, Australia, New Zealand and others. Unlike fair use, which is a set of guidelines, fair dealing in most countries is limited specific categories of use. If a particular use falls into one of these categories, a court will ascertain whether, on balance, it should be considered "fair." It is usually considered somewhat more predictable but also somewhat less flexible than the concept of “fair use” employed in the United States.

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First Sale doctrine

The idea that once the first legitimate sale of a physical embodyment of a copyrighted work has taken place, the copyright holder has no claim to control further sales or many uses of the particular copy.

The first sale doctrine is a concept found in U.S. copyright law, and in some form in some other jurisdictions where it may be known as ”exhaustion of rights.” For example, if a person buys a book (a physical paper copy), that person can resell the book without the permission of the rights-holder.

The first sale doctrine has become more important with the advent of non-rivalrous digital goods, goods that can be copied and shared without transfers of possession. The question of what it means to “own” something is now more difficult to answer. Many software companies and other purveyors of digital goods have attempted to handle this by saying that users are actually purchasing a license to use, rather than buying an actual “thing.” This distinction is often lost on users, though, who are frequently baffled and frustrated when they cannot do things they assumed they could with something that, in their minds, they own.

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Fixation

Reduction of a work of authorship into some tangible form, which is required for copyright protection in many countries.

Fixation is one of the fundamental tenets of U.S copyright law. Such fixation might include writing something down, recording it, placing it on film, or making it. For legal systems with a fixation requirement, it is the fixing that changes an idea into a copyrightable work.

The fixation requirement can lead to some interesting results for creative art form that do not normally record or otherwise fix their expression, such as choreography, stand-up comedy, recipes, or the performance of live music. U.S. law has a specific statutory provision mandating that performers of live music still hold rights in it even if they are not recording it, and that others cannot record the performance without their permission.

Most jurisdictions do not have a fixation requirement, choosing instead to vest copyright in a work using other criteria. For example, Swiss law requires only that a work have “individual character”.

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Free trade agreement

A free-trade agreement (or FTA) is a treaty between two or more countries that establishes trade guidelines so that trade between participating countries is theoretically unrestricted by tariffs.

Often, such agreements include copyright-related clauses.

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GNU-GPL license

The GNU-GPL license is an open source software license.

One of the most well known symbols of the free software movement, which is sometimes called FOSS, for “Free open source software”. GNU is an open source operating system, upwardly compatible with Unix.

Richard Stallman started working on GNU at MIT in 1984, and founded the Free Software Foundation in 1985 to help his efforts. When GNU was incorporated with the Linux kernel, the combination became the GNU/Linux system, now found in various different software distributions.

GPL stands for “General Public License”. GPL licenses must contain what are referred to as the ”four freedoms”, which are:

The freedom to run the program, for any purpose (freedom 0).

The freedom to study how the program works, and change it to make it do what you wish (freedom 1). Access to the source code is a precondition for this.

The freedom to redistribute copies so you can help your neighbor (freedom 2).

The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this.

A program is free software if users have all of these freedoms.

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HADOPI

A slang term for recent French legislation [2008-09] designed to regulate Internet usage in accordance with existing French copyright law.

“HADOPI” is an acronym referring to the name of the French government agency that would be created by the bill, the High Authority for Copyright Protection and Dissemination of Works on the Internet.

The HADOPI law was the subject of intense lobbying, both for and against it, and became notorious for its so-called “three strikes provision” and for the fact that in its original form, it provided that an Internet user could be sanctioned after having only been accused of copyright infringement. Although the law eventually passed, the French high court later stuck down this part of the bill as unconstitutional. Soon afterwards, techophile enthusiasts demonstrated that it would be technologically feasible to disguise Internet usage in a way that would call the laws basic effectiveness into question.

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(legal) Formalities

The ritual or formulaic observances that must take place in certain jurisdictions before a work can qualify for copyright protections, or before suit can be filed.

For example, although the U.S. officially abandoned formalities with its 1976 Copyright Act,it is still the case that a work acquires copyright at the moment of creation, but the work must be officially registered with the copyright office before suit can be filed for infringement. At other times in copyright’s history, copyright was conferred at creation, for a period of years, and could then be explicitly renewed for a second period when the first one expired.

The Berne Convention explicitly forbids formalities. Article 5, Section 2 reads:

“The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.”

However, some copyright scholars and activists believe that copyright is actually too easy to acquire and sustain, resulting in, among others, the orphan works problem. These people advocate for at least some formalities for copyright, most often having to do with renewal, so that a work whose rights-holder failed to renew copyright would fall into the public domain.

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Idea / Expression Dichotomy

The concept that ideas cannot be copyrighted, but their particular expression can.

The idea / expression dichotomy is fundamental in copyright law. For example, the particular text of Stephenie Meyer’s “Twilight” series of vampire novels is protected by copyright, but the idea of a girl falling in love with a vampire cannot be protected.

While this may seem obvious or self-evident, the line between the two is not always so easy to find, and aggressive rights-holders continue to try to push the limits of to what they can claim copyright. For example, in the U.S. case Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., Inc., the holder of the rights to the intellectual property making up the James Bond character successfully sued an automobile company for an advertisement they had aired. MGM claimed that the ad’s content was sufficiently similar to or evocative of, James Bond, that it had infringed, although no actual copying took place.

'In U.S. law, idea / expression is usually held up, along with fair use, as a “safety valve” that prevents the monopolies granted by copyright from interfering with public policy, freedom of speech, and more.

Under certain circumstances, courts have held that there are a limited number of ways in which to express a particular idea (such as the rules for lotteries or sweepstakes) and that therefore, no copyright can be held in those materials. This is known as the “merger” doctrine.

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IFLA

International Federation of Library Associations and Institutions

According to the IFLA website, “The International Federation of Library Associations and Institutions (IFLA) is the leading international body representing the interests of library and information services and their users. It is the global voice of the library and information profession.”

IFRRO

The International Federation of Reproduction Rights Organisations

“The International Federation of Reproduction Rights Organisations (IFRRO) is an independent organisation established on the basis of the fundamental international copyright principles embodied in the Berne and Universal Copyright Conventions. Its purpose is to facilitate, on an international basis, the collective management of reproduction and other rights relevant to copyrighted works through the co-operation of national Reproduction Rights Organisations (RROs). Collective or centralised rights management is preferable where individual exercise of rights is impractical.

Through its members, IFRRO supports creators and publishers alike and provides internationally a common platform for them to foster the establishment of appropriate legal frameworks for the protection and use of their works.

IFRRO works to increase on an international basis the lawful use of text and image based copyright works and to eliminate unauthorised copying by promoting efficient Collective Management of rights through RROs to complement creators' and publishers' own activities.”

Other resources:

IFRRO website

Incentives

The aspects of copyright law designed to motivate creators to create.

Copyright law grants to the rights-holder, for a limited time, a monopoly over uses of the copyrighted work. Since monopolies are usually considered inefficient, the justification for doing this is usually described as providing the necessary incentives to creators to get them to create. That is, without the incentive of being able to benefit economically by exploiting control of the work, why would an artist create? This is often called the economic theory of creator incentives, or something similar. The assumption is that there is a net gain for society. For example, the Copyright clause of the U.S. Constitution reads “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The incentive driven view of copyright and creation has come under some criticism for failing to take into account the many different motivations artists have for creating their work, some of which are not financial at all. Other critics point out that even if incentive theory is accurate, extremely long copyright terms do not increase the economic or monetary value of copyright, arguing against term extensions.

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Intellectual Effort

Literally, an effort of the mind, as opposed to a physical effort. The phrase is often synonymous with “creativity”.

In copyright law, this concept is important because not everything qualifies for copyright protection. Most importantly, simply having spent a lot of time and energy on something is not usually enough to qualify for copyright. However, in recent legislation, databases of facts have received protection solely by virtue of the effort that went into them.

Each jurisdiction has a different set of criteria as to what may receive copyright. The U.S. requires that the work be the result of creative input, but has a very low threshold for creativity. The U.S. also requires that the work be fixed in a tangible form. Italian law, for example, states things a little differently, and states that a work must involve an intellectual effort and possess creative character.

See also:

"Sweat of the Brow"

Infringement

Violation without justification or excuse of one or more of the exclusive rights in a work granted by copyright law.

For example, if a copy of a book, song, or computer program is made, or a song or play performed without permission, the copyright in that work has been infringed. What sort of infringement has taken place depends on the level of knowledge and involvement of the infringer.

Direct

Direct infringement takes place when a person who is not the rightsholder performs or engages in one of the activities that the copyright holder has the exclusive right to perform.

Direct infringement is the most common kind of infringement and takes place whenever a user violates any of the rights granted to a copyright holder.

“A plaintiff must meet two requirements to establish a prima facie case of copyright infringement: (1) ownership of the allegedly infringed material and (2) violation by the alleged infringer of at least one of the exclusive rights granted to copyright holders.” -- LGS Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150, 1156 (9th Cir. 1996)

For example, if a copy has been made without permission, that is direct infringement.

Indirect /secondary

These are two types of of infringement that take place in conjunction with direct infringement.

NOTE: There can be no indirect or secondary infringement without a concurrent act of direct infringement. An act qualifies as a particular type of infringement according to the knowledge, intent and abilities of the infringer.

Contributory

A contributory infringer has knowledge of the related direct infringement and makes a material contribution to it in some way.

Examples of contributory infringement would be a CD factory owner who knows that his machines are being used to make illegal copies of protected works, or someone who provides software tools for cracking encryption regimes.

Vicarious

A vicarious infringer is one who, while not deliberately encouraging or materially contributing to the direct infringement, has the right and ability to control or prevent infringement, and benefits from it, even if he or she does not realize the infringement is taking place.

Vicarious infringment is roughly akin to “you should have known infringement was taking place, and done something about it.

A club owner who hires performers who then play protected works without permission to do so, and without the owner’s knowledge, is vicariously infringing. The owner herself is not infringing, or helping the performer to do so, but she could make sure of the performer’s licensing, and she is indirectly profiting from the infringement because of the revenues from patrons of the club. Another example would be someone who runs an outdoor market, renting stalls to vendors. If a particular vendor is selling infringing goods, the market owner is vicariously infringing. (For a classic example in US law, see Fonovisa Inc. v. Cherry Auction, Inc., 847 F.Supp. 1492 (E.D. Cal. 1994).

Inducement

The idea that someone might not only make the means of infringement possible, but might encourage others to infringe, even if the inducer is not profiting, either directly or indirectly.

Inducement was perhaps made most famous by the US case M.G.M. v Grokster. In the Grokster case, the court found Grokster liable for indirect infringement, because it had actively induced others to directly infringed, regardless of any substantial non-infringing use of the Grokster technology. This was in contrast to the Sony v Betamax decision in the 1080’s which found video recorders non-infringing because they could be used in non-infringing ways, and because Sony had not encouraged infringing uses.

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Lex loci delicti

Literally, "the law of the place of the wrongdoing"

The full term is lex loci delicti commissi.

This concept comes up when discussing a tort or crime that takes place in multiple legal jurisdictions. In such a scenario, a court will have to decide which jurisdiction's laws apply. Lex loci delicti refers to the laws that apply in the place where the crime, copyright infringment for our purposes, was actually committed, rather than where the rightsholder lives, or where the right to the work were first received, etc.

See also:

Choice of Laws

Other resources:

Wikipedia article on Lex loci delicti

License

A license is a form of contract whereby a rights-holder grants permission to a person or entity to make use of a copyrighted work in some way.

Licenses can be quite specific, granting permission for only one particular kind of use, and for a limited time, or they can be comprehensive. They may be open source, or restrictive. They may or may not be transferable to others. Licenses have always been part of copyright law, but have come to greater prominence recently with their extensive use in conjunction with computer software.

Model License

A license that does not refer to any particular copyrighted work, or to specific parties, but is instead presented as an example of the license in general.

The model license can then be modified according to circumstances. For example, Creative Commons, which offers six different types of license, makes model versions of each available.

Blanket License

See Blanket License.

Compulsory License

See Compulsory License.

Institutional License

A license granted to an institution, such as a library or school, rather than an individual.

An institutional license’s terms are predicated on the idea that the institution will be serving many different users, under a wide variety of circumstances, and that from a transaction costs perspective, it is far more efficient for all concerned to negotiate terms only once. For example, most, if not all, universities have institutional licensing agreements with the various collective management agencies for the performance of musical works. Many libraries, whether public or academic, have institutional subscriptions to commercial or academic databases, under which any patron of the library may access the database without having to negotiate personal access.

Individual License

An individual license is a license granted to a single person.

Individual licenses can be negotiated for any sort of copyrighted work, but are probably most often seen in the software context, where before using purchased software, a user must agree to the licensing terms.

(non) Exclusive License

An exclusive license is one granted to the holder only.

If a license is exclusive, it means that no other similar license will be granted. For example, a rights-holder in the United States might grant an exclusive license to someone in Germany to be the sole distributor of the copyrighted work in Germany, or vice versa. A non-exclusive license is just the opposite. A person with such a license knows that many others may have been granted the exact same rights. For example, when a person purchases software, he knows that he is not the only one who has eben granted permission to use that software.

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Material breach (of a contract)

A violation of a contract serious enough that the person harmed may compel performance and collect damages, and/or terminate the contract.

A contract is fundamentally a list of terms to which the parties have agreed – things each party has agreed to do or not do. However, no contract, no matter how complex or carefully written, can foresee every possible eventuality. Therefore, it will sometimes happen that a party to a contract will violate one or more of the contract’s terms. Sometimes the breach will be deliberate, sometimes accidental, sometimes driven by circumstance. The question that arises, in the case of a breach, is what will be done about the violation.

Typically, minor violations of a contract mean only that the person harmed by the violation can collect only actual damages. If the breach is sufficiently immaterial these damages may well be zero.

However, substantial violations, which are also known as material breaches, are a different story. They are material breaches because the breached clauses fundamentally matter to the contract. Such breaches typically mean that the injured party can legally compel performance of the contract in addition to collecting damages. Of course, a particular contract may contain specific provisions for what will happen in the case of a material breach.

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Monopoly

A monopoly is exclusive control over a particular resource.

A copyright in a particular work can usefully be conceived of as a monopoly over that work and its uses, albeit for a limited time.

Economic theory typically sees most monopolies as inefficient uses of resources. These inefficiencies are harm to the public good. This harm is justified in copyright law by claiming that the incentives a monopoly provides to would-be creators balance it out. However, this view of things is being challenged more and more in recent years by critics who feel that copyright terms are too long, or that creators have motivations other than monetary reward.

See also:

Other resources:

Moral Rights

Broadly speaking, the set of rights in a work that give control over the existence or fate of a work, rather than over its economic exploitation.

Moral rights (a translation of the French concept “droit moral”) in a creative work are the corollary to the economic rights. They represent the rights in a work that are inherent in its status as a creative work and in its relationship with its creator. While they are statutorily reinforced, they typically are thought of as existing on their own. That is, they are much closer to being “natural” rights. Perhaps because of the nature of the rights, they are more often associated with visual works, such as painting or sculpture, than with “informational” works, such as texts.

The Berne Convention explicitly recognizes moral rights, but U.S. law does not officially recognize moral rights, which is an ongoing source of tension between U.S. law and that of other Berne Convention members. The U.S, maintains that its laws have sufficient provisions in place, such as the Visual Artists Rights Act, to accommodate moral rights.

Article 6bis (1) of the Berne convention reads:

“ (1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

The enumeration of moral rights varies from country to country, but they are most often listed as:

The right of paternity -- to claim authorship (or disclaim it, in the event of unauthorized change).

The right of integrity -- to approve of or object to any modification, distortion or change to the work.

The right of withdrawal -- to remove a work from the public sphere at will.

The right of release -- the right to control when a work is seen by the public.

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Mortenson Center

The Mortenson Center for International Library Programs

The Center was founded in 1991 at the University of Illinois at Urbana-Champagne.

According to its website, “The Mortenson Center and the Mortenson Distinguished Professorship seek to strengthen international ties among libraries and librarians, regardless of geographic location or access to technology.”

Individuals at the Mortenson Center participated in the initial testing of this curriculum.

Neighboring Rights

The rights of people who have participated in the creation of a copyrighted work, but who did not “write” it, and for a variety of reasons do not normally qualify for traditional forms of copyright.

Neighboring rights are copyrights that exist adjacent to more traditional author’s copyrights and are granted to a few specific categories of person. The term most often refers to. Examples might include the sound engineers at a recording studio, the performers of a musical composition, or a broadcast organization.

Neighboring rights as such do not exist in all copyright law systems. Some jurisdictions subsume them within “copyright” in general without treating them as any different.

As just one example, the Rome Convention explicitly addresses the rights of performers and producers of sound recordings.

See also:

Rome Convention

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Open Access

Open access is a term describing an information resource that is open to all.

It also refers to a movement within the academic community dedicated to making scholarly research more accessible, rather than hidden behind a price or permission barriers.

“Open access” journals are not necessarily free, since they may charge a fee for maintenance costs, or to compensate authors, but typically an open access resource is free to all to read and use. Journals that ask for some payment are sometimes called “hybrid” access journals.

Harvard University recently adopted a policy where all of its faculty are permitted and encouraged to make their research available as open access. The U.S. National Institutes of Health has an open access policy requiring all research conducted with public funding to make its results open access, at least after a short interval of exclusivity.

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“Opt-in”

When a person must choose to do something, rather than it happening automatically.

Opt-in describes the default state any situation in which a user or participant has a choice of whether to do something or not, and where the default state is “not”. That is, a person must explicitly and consciously choose to take part. If no action is taken, the person will not participate, agree to terms, etc.

“Opt-out”

When a person must choose to not do something, otherwise it will happen automatically.

Opt-out describes the default state in any situation in which a user or participant has a choice of whether to do something or not, and the default state prior to any user involvement or active decision is “doing it”.

That is, unless the user consciously and deliberately decides to not agree, or participate, and chooses "no", the assumption going forward is that he or she agrees to the conditions proposed.

Original expression

Original expression refers to a creator’s original, copyrightable, creative work.

This is in contrast to any later derivative works, other later work that in some way incorporates the original work, or work that isn’t original at all. Expression that is not original cannot qualify for copyright.

Other resources:

Sri Lankan academic article: "A right to original expression: the role of copyright law in modern industry"

Orphan works

Orphan works are creative works that are still under copyright protection, but for which it is either impossible or prohibitively difficult to identify the copyright holder.

This is most often a problem with photographs on the Internet, but arises with other types of works as well. Since the works are under copyright, permission is need to use them, but since the rights-holder cannot be found, no permission can be obtained. This puts these works into a sort of limbo. People want to make use of them, but usually won’t for fear of liability, and the works cannot pass into the public domain until the term of their copyright expires.

The settlement with the Author’s Guild in the Google Book Search lawsuit contains controversial provisions for orphan works, although it does not refer to them by that term. These terms are the subject of much debate and opposition worldwide.

Orphan works legislation has also been proposed at several different times in the U.S. Congress.

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"Notice and Takedown”

“Notice and takedown” refers to the particular sort of cease and desist letter associated with the U.S. Digital Millennium Copyright Act.

An Internet entity ( such as YouTube), upon receiving notice that it is hosting or otherwise making available a copyrighted work, can avoid liability for infringement by immediately taking down the copy of the work in question.

These notices are often criticized because their process strongly preferences rightsholders, who can effectively shut down any and all uses of their work, whether fair, permissible or not, since most posters will not bother to challenge a takedown notice with a counternotice.

Counternotice

The response to a DMCA takedown notice.

A counternotice is the action taken by the person who originally posted the work that was taken down under a DMCA Section 512 “notice and takedown”. If the poster believes that the work was used legitimately, he or she can inform the host, who is then are required to put it back up and notify the alleged rightsholder that the copyright has been challenged.

The process for challenging takedowns with a counterntice is much more time-consuming than that for a takedown itself, leading some to criticize the system as unfairly favoring alleged rights-holders, creating a legal avenue for private censorship of speech, and confronting Internet hosting sites with skewed incentives.

“Putback”

When a website that took content down in response to a DMCA takedown notice puts it back up after receiving a counternotice.

“Putback” refers to when an Internet content host, such as YouTube, having received a “notice and takedown” and then a “counternotice”, puts the possibly infringing content back online, pending a review of its copyright status.

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Perform

Making it possible for others to simultaneously experience a copyrighted work.

The right to perform a work publicly is one of the basic rights granted to a copyright holder. Public performance covers a wide range of activity, and the law addressing this tends to be quite complex and fact specific. Putting on a play, reading a book aloud to an audience, or playing a music recording at a club are all public performances.

The limits of the ability or right of a rightsholder to control public performances can under scrutiny in 2009 when, among other incidents, a representative of ASCAP, the American Society for Composers, Artists and Performers asserted his belief that ASCAP should be able to charge licensing fees for cell-phone ring-tones, since whenever the phone rang it was a “public performance” of the underlying musical work. Critics accused ASCAP of merely trying to get a piece of the lucrative ringtone market.

In another controversial episode, The Authors Guild of America asserted that the text-to-speech function of the Amazon Kindle e-book reader constituted a public performance when it was activated, since the book was “read” aloud. Although Amazon asserted that the text-to-speech function was completely legal, it nevertheless acquiesced to authors’ demands by making the function work on a title by title basis. Some publishers immediately chose to disable that function for their e-books. Both Amazon’s actions and those of the publishers drew heavy criticism from disabled persons’ rights groups.

Other resources:

Piracy

Broadly, any infringement of copyright by copying, or copyright-related theft.

Despite the images it may evoke of ocean-going bearded villains with swords, when it comes to copyright law, piracy is a catch-all term, used to describe many different sorts of copyright infringement and all types of illegal copying.

Some analysts have pointed to and criticized a semantic trend from using piracy to describe only large-scale copying for commercial gain to using, to describe any unauthorized of copying.

But, the fact remains that common usage uses the term piracy to describe not only organizations making hundreds of thousands of counterfeit DVDs, but also to describe peer-to-peer file sharing and at-home, individual personal copying, which may or may not be fair use, depending on who is doing the analysis.

The content industry sees illegal copying as a very serious threat, which may account for their routine usage of such a loaded word, perhaps in an attempt to impute the traits of the very worst sorts of copying to all of it.

Other resources

Plagiarism

The use of another’s work without citation or accreditation, with the intent of passing it off as one’s own.

Plagiarism is a type of copying, but is not necessarily copyright infringement. Therefore, it would be possible to have a situation in which use of someone else’s work was not a copyright infringement (the use was fair, the work was in the public domain, the user had permission) but was still plagiarism, because the user did not acknowledge the true author of the work in question. Although such a use would be legal, it would be unethical.

Copying and giving appropriate credit is not plagiarism, but could still be copyright infringement.

Other resources:

Public Domain

The great mass of creative work to which no one holds copyright. The world’s common cultural resources and heritage.

In copyright law, the public domain can be thought of as those creative works to which everyone has access, and over which no one has exclusive control. Some works in the public domain were created prior to any formal legal system of copyright. Some works in the public domain were once under copyright, but the term of those copyrights has expired, allowing the work to pass into the public domain. The length of time before a work passes into the public domain depends on when a work was created, and the copyright regime in place at the time.

The public domain has been an issue in several recent copyright controversies, including the Google Book Search settlement and a German man who was uploading photographs of public domain artworks to Wikipedia

Dedication To

A creator can, if he or she wants to, choose to waive the copyright in his or her work by deliberately dedicating it to the public domain. Once this is done, the creator can no longer claim the privileges conferred by copyright, and any member of the public may make use of the work.

Other resources:

Public Performance or Display

A copyrighted work is publicly displayed if the public has access to it.

The right to publicly display or perform a creative work is one of the fundamental rights granted to a copyright holder. A work is publicly displayed or performed if the public can view it. Whether the public has to pay is not an issue.

U.S. Copyright Act, Section 101 states:

“To perform or display a work “publicly” means (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

So, a painting on the wall of someone’s home is not publicly displayed, but a painting on the wall of City Hall is. When the work in question is an outdoor artwork, or a building, things can become difficult to determine. There is also the question of whether a search engine is publicly displaying works when it shows thumbnail images.

Other resources:

Registration

Formally obtaining copyright protections for a creative work by notifying the copyright office that it exists.

In U.S. copyright law, although a creative work receives copyright at the moment it is fixed in a tangible form, a copyright holder cannot file suit against an alleged infringer without officially registering the work with the copyright office.

The Berne Convention does not require registration, or any other official formalities.

See also:

Formalities

Other resources:

Relief

What a court grants a rightsholder who has won an infringement lawsuit.

When a copyright lawsuit is resolved in favor of the rightsholder, a court will then grant them relief -- relief from the harm which they have suffered as a result of the infringement

Injunctive

Injunctive relief occurs when a court issues an injunction or a restraining order against an infringer.

The injunction might order that infringing content be removed from display, or that extant illegal copies be collected and destroyed, or whatever measures the court finds appropriate.

Statutory

Statutory relief is relief according whatever provisions for relief exist explicitly in statute.

These could include damage awards, criminal punishment or more.

Religious Legal System

A religious legal system is one where the law is based on the tenets of a particular religion.

Some religious legal systems exist on their own, while some exist in conjunction with another legal system. Sharia, the system of religiously inspired Islamic law, is an example of a religious legal system, as are Hindu law and Halakha or Jewish law.

See also:

Other resources:

Rights

The rights a creator, copyright holder, the public or member of the public has as a result of copyright.

Copyright grants its holder various exclusive rights as part of its limited time monopoly. These rights can be usefully divided into economic rights and moral rights. In addition, as part of the copyright “bargain” the public gains certain rights in a copyrighted work as well. A list of these rights follows.

Right of Integrity

The right to prevent the destruction or defacement of a creative work, or to object to any changes made to a creative work

Most often seen in the context of a painting or sculpture. For example, the rights to a piece of art on display.

Right of Attribution

The right to be known as the creator of a particular creative work, to be given appropriate credit for one’s creations, and not to be blamed for things one did not create.

Right of Disclosure

The right to determine when and if a work shall be made public.

Right of Reproduction

The right to make copies of a work.

Right of Adaptation

The right to make derivative works.

Right of Distribution

The right to sell, export or import a work or copies of a work.

Right of Public Performance and Display

The right to perform or display a work in public.

Right of Withdrawal

The right to withdraw a work from the public sphere.

Most commonly seen with artworks of which only a single copy exists but also sometimes seen as a right to purchase extant copies of a creative work at a reduced rate. For example, a book a writer no longer wants on the market.

Right of Access

The right of the public to have access to a published copyrighted work.

This particular right is actually not a right of the copyright holder, but rather of the public. In return for granting the creator the various copyrights, arguably at the expense of the public, the public gains access to the work.

Other resources:

Rome Convention

The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations

The Rome Convention is an international copyright agreement specifically addressing the rights of three groups. These groups are: performers, the producers of sound recordings, and the broadcasters of broadcasts, all of whom receive protection for their efforts, especially against acts to which they have not consented, like being recorded. First done in 1961, the convention attempts to offer specific protection for creative work that might otherwise not qualify for copyright, usually because of its transitory nature.

See also:

Neighboring Rights

Other resources:

“Safe Harbors”

A clearly defined set of circumstances or actions with respect to a particular law that shield the actor from liability.

A law with safe harbors says “These things will make you liable, but if you do “this”, then you are guaranteed to be safe". Safe harbors play an important role in areas of the law that are primarily governed by guidelines (which ultimately need to be interpreted by a court) , rather than rules. Since many people may lack the resources or legal sophistication to know or find out if their behavior is legal, a safe harbor provides certainty.

In the context of copyright law, although it is also used as a generic term for the limits of “safe” activity”, safe harbors are most often encountered with respect to Section 512 of the United States’ Digital Millennium Copyright Act, “Limitations on liability relating to material online”, which describes various ways in which Internet content providers can ensure that they will avoid liability for the behavior of their users and patrons. The most important of these is the “notice and takedown” proceeding.

Note: “Safe harbor” may also refer to a U.S. – EU agreement regarding the safety and privacy of personal data and databases.

See also:

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Statutory Exemption

An exemption to copyright law protections explicitly written into statute.

While a particular behavior might be infringing under the general description of copyright, it is specifically exempted, usually for public policy reasons. For example, copying books without the express permission of the rights-holder is a violation of copyright. However, making copies expressly for the purpose of providing the disabled with access to the book is exempted by statute. Therefore, such behavior is not infringing.

Other statutory exemptions include copying for certain academic uses, especially instructional activities, copying for archival purposes or to deal with broken or obsolete technology, distance education, and more.

The Berne Convention places some limits on what statutory exemptions a country can have in its national legislation with its three-step test, saying “"[i]t shall be a matter for legislation in the countries of the Union to permit the reproduction of such [literary and artistic] works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author".

See also:

Berne Convention

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Statute of Limitations

A statute of limitations is a law that limits how long a person can wait to bring a legal action after a law is broken.

When the time limit specified by the statute of limitations has run out, or “tolled”, any future legal action is said to be "barred". For example, if the statute of limitations for a particular crime is 10 years, it is generally not possible to prosecute for that crime twelve years after it took place.

With respect to copyright law, the statute of limitations will describe how long after an act of infringement a rights-holder can wait to bring a suit. It will also limit the number of infringing acts for which the rights holder may seek damages. The length of the time limit varies between jurisdictions, and the exact nature of the limits varies as well.

For instance, in the United States, there is a three year statute of limitations for copyright violations, although this is a generic limit, not specific to copyright. This three year clock begins on the date of the most recent infringing act. However, some courts treat this as a “rolling” three years, meaning that a rights holder can only seek damages for acts within the three years prior to bringing suit. Other courts have held that even if the infringing began more than three years prior to the suit, if the infringement was ongoing, and at least one act was within the last three years, the rights holder may seek damages for all of the infringing acts.

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“Sweat of the brow”

"Sweat of the brow" refers to the effort put into something, and any value created as a result.

If you work hard at something, you sweat. Some translations of the book of Genesis in the Christian Bible or Jewish Pentateuch have God telling Adam that as part of Adam's punishment, he will have to produce his food by the “sweat of his brow”.

In copyright law, the logic runs as follows: someone who has invested a great deal of time and energy in producing something needs to be protected, otherwise someone else can take it (by copying) and reap all of the benefit with none of the labor.

This is the “labor theory” of property, historically associated with John Locke. However, most copyright regimes do not grant copyright in something simply because it is the result of hard work. There is typically an originality requirement as well. The United States has explicitly rejected the sweat of the brow theory, in the case Feist Publications v Rural Telephone, which dealt with the partial copying of a telephone directory.

That being said, the EU grants protection in factual databases on what is essentially a “sweat of the brow” theory.

See also:

Intellectual Effort

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Tangible Medium

The physical form that a copyrighted work may take.

U.S copyright law requires that a creative work be fixed in a “tangible medium” before it qualifies for copyright, in contrast with the law of some other countries, which confer copyright at the moment of conception.

The tangibility requirement has led to some problems with protection for types of works that are not normally “fixed”, such as dance, stand-up comedy, live musical performances, and more. It has also been the subject of much discussion with respect to computers, computer displays and computer memory, in terms of when a program or a program’s output is “fixed” or not. Some of these issues have been addressed with targeted legislation.

See also:

Fixation

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“Three-Strikes” Laws

A law where the third offense results in more serious penalties.

A “three-strikes” law is a reference to baseball, where it is “three strikes and you are out”. Such laws have stronger penalties following a third infraction. In the copyright context, three strikes laws are copyright enforcement statutes where an Internet user’s Internet access can be summarily cut off after three accusations of copyright infringement.

While strongly supported by the content industry and institutional rights-holders, these laws have come under a great deal of criticism from Internet users, advocacy groups, Internet service providers and libraries for heavily favoring content providers and rights-holders over the public. This is because these laws penalize users based on accusations ( received complaints about a user), not proven infringement, so there is a strong sense of “guilty until proven innocent”. Further the procedures for making an accusation are highly streamlined, whereas the procedures for challenging them are difficult. Such laws have been proposed or passed in France, South Korea, New Zealand and Canada, among others, although some have failed to pass or been struck down.

See also:

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“Three-step Test”

The Berne Convention’s Three-Step Test describes the criteria by which a participating country can have its own unique limits or statutory exemptions on copyright law without violating the terms of the Convention.

The three steps come originally from Article 9(2) of the Berne Convention, which reads:

“It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”

This language can be broken out into the following three steps.

1) The exemptions must be for special cases or types of creative work only;

2) The exemptions allowed must not conflict with the “normal’ exploitation of the work that copyright usually makes possible, and;

3) the exemptions must not unreasonably prejudice the legitimate interests of the author.

This language has since been exported -- with important modifications -- to a number of other international copyright treaties, including the TRIPS agreement, several WIPO treaties, and the EU Copyright Directive. The wide range of contemporary interpretations of the three-step test is discussed in Module 2: The International Framework.

See also:

Statutory Exemption

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TPM – Technological Protection Measures

Technological protection measures, or “TPM” are security measures added to digital technology and content by content providers in order to restrict and control access and exert greater control over the uses of the content they sell.

TPM is a broader term than “DRM", which really refers only to software-encoded protections. TPM is potentially both software and hardware based. Measures could include requiring passwords, filtering software, censor chips in computers, monitoring/ surveillance technology, (semi-)autonomous software tools and more. Regionally coded DVDs and DVD players are one example of a TPM. Other examples are Microsoft’s “Trusted Computing” and the “feature” of Apple’s iTunes that permits users to transfer a song to only five different computers.

While ostensibly aimed only at infringing users, TPM techniques often have negative impact on legitimate users, both with respect to legal uses and to privacy concerns. However, under at least U.S. law, it is illegal both to circumvent any technological protection measure and to possess anything that makes circumvention possible. The potentially sweeping nature of TPMs has led some to argue that TPMs make it possible for a rights-holder to not only enforce their copyright, but to exert control over a work that exceeds the limits of what copyright law permits.

See also:

DRM

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Transferability (of rights)

The feature of copyrights that makes it possible for one rightsholder to transfer ownership of the rights to another person.

One of the basic characteristics of property is that it can be transferred to others, whether by sale, gift, or something else. Copyrights are no different. While a creator initially holds copyright in his or her creative work, those rights can be transferred to another person or entity, who can then transfer them again, etc. For example, recording artists frequently transfer the copyright in their songs to a records company. Michael Jackson famously owned the rights to all of the Beatles’ music.

The various rights that “copyright” subsumes can be transferred as a block, but more often are transferred or sold one at a time, some times to different people.

TRIPS

The Agreement on Trade Related Aspects of Intellectual Property Rights

TRIPS is an international agreement on property rights that came into effect in 1995.

The World Trade Organization’s website describes TRIPS as “to date, the most comprehensive multilateral agreement on intellectual property.” and states that:

“The areas of intellectual property that it covers are: copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations); trademarks including service marks; geographical indications including appellations of origin; industrial designs; patents including the protection of new varieties of plants; the layout-designs of integrated circuits; and undisclosed information including trade secrets and test data.”

The three main features of TRIPS are its sections on standards, enforcement, and dispute settlement. In a way, it is an umbrella agreement, since it requires that its participants agree to and uphold the tenets of several other agreements, treaties and conventions. These are the main conventions of the WIPO, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic in their most recent versions.

See also:

Other resources:

UNESCO

The United Nations Educational, Scientific and Cultural Organization

UNESCO was founded in 1945. According to its website it “ functions as a laboratory of ideas and a standard-setter to forge universal agreements on emerging ethical issues.

The Universal Copyright Convention of 1952 was adopted under UNESCO’s auspices.

Other Resources

United Kingdom’s Chartered Institute of Library and Information Professionals (CILIP)

CILIP: the Chartered Institute of Library and Information Professionals is the leading professional body for librarians, information specialists and knowledge managers.

According to its website, "CILIP forms a community of around 36,000 people engaged in library and information work, of whom approximately 21,000 are CILIP members and about 15,000 are regular customers of CILIP Enterprises. CILIP speaks out on behalf of the profession to the media, government and decision makers. CILIP provides practical support for members throughout their entire careers, helpingthem with their academic education, professional qualifications, job hunting and continuing professional development.”

Universal Copyright Convention (or UCC)

The UCC, which came into effect in 1955, represents an alternative to the Berne Convention.

It was designed by UNESCO to provide a form of multilateral copyright protection for countries what wanted such a thing, but which disagreed with some or all of the Berne Convention. These countries include the United States and Russia as well as much of Latin America and the former USSR.

Its opening section states:

"The Contracting States, Moved by the desire to ensure in all countries copyright protection of literary, scientific and artistic works, Convinced that a system of copyright protection appropriate to all nations of the world and expressed in a universal convention, additional to, and without impairing international systems already in force, will, ensure respect for the rights of the individual and encourage the development of literature, the sciences and the arts, Persuaded that such a universal copyright system will facilitate a wider dissemination of works of the human mind and increase international under-standing, Have resolved to revise the Universal Copyright Convention as signed at Geneva on 6 September 1952 (hereinafter called `the 1952 Convention')"

All Berne Convention participants are also UCC members. Additionally, the UCC’s Article 17 explicitly states that none of its provisions are intended to conflict with the Berne Convention, making the UCC of limited importance today, since most countries are Berne members.

See also:

UNESCO

Other Resources

WIPO

WIPO is the World Intellectual Property Organization.

According to its website, WIPO "is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest. WIPO was established by the WIPO Convention in 1967 with a mandate from its Member States to promote the protection of IP throughout the world through cooperation among states and in collaboration with other international organizations. Its headquarters are in Geneva, Switzerland. The Director General is Francis Gurry. WIPO administers 24 different treaties, including the WIPO Convention, thirteen of which are intellectual property treaties.

Other resources:

WIPO Performances and Phonograms Treaty (WPPT)

A WIPO treaty that came into effect in 2002, explicitly addressing the rights of performers and producers of sound recordings.

WIPO's website states that:

“The Treaty deals with intellectual property rights of two kinds of beneficiaries: (i) performers (actors, singers, musicians, etc.), and (ii) producers of phonograms (the persons or legal entities who or which take the initiative and have the responsibility for the fixation of the sounds).

They are dealt with in the same instrument because most of the rights granted by the Treaty to performers are rights connected with their fixed, purely aural performances (which are the subject matter of phonograms).

As far as performers are concerned, the Treaty grants performers four kinds of economic rights in their performances fixed in phonograms (not in audiovisual fixations, such as motion pictures): (i) the right of reproduction, (ii) the right of distribution, (iii) the right of rental, and (iv) the right of making available."

See also:

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WTO – World Trade Organization

The WTO is an organization devoted to the rules of international trade.

According to its website, the WTO's "main function is to ensure that trade flows as smoothly, predictably and freely as possible."

The WTO is responsible for, among other things, the TRIPS agreement, which was the first time and place that copyright issues became a focus of an international trade agreement.

See also:

TRIPS

Other resources:

Work For Hire

A creative work that the creator has made at someone else’s request, usually for pay.

Work for hire is a concept from U.S. copyright law and exists in a few others as well. For example, if a person commissions a sculpture from an artist, and provides very specific requirements as to materials and appearance, the sculpture will probably be a work for hire, although the ultimate determination is fact specific.

The concept serves to clear up any confusion that might result when an employee creates a copyrightable work in the course of their employment. Under the “works made for hire” doctrine, the employer holds the copyright in such a situation.

It is this doctrine that ensures that, for example, the hundreds of people who work on the production of a motion picture do not have any claim to the copyright.

However, the nature of the employer/employee relationship can be complex and difficult to define, especially when it exists only for the duration of the work’s creation, or the work is created in an educational context.

Further complicating things, since the Berne Convention separately recognizes economic and moral rights, even a creator who has made a work for hire may still possess moral rights in that work.

See also:

Other resources:

Home

Introduction

Course Materials:

Module 1: Copyright and the Public Domain
Module 2: The International Framework
Module 3: The Scope of Copyright Law
Module 4: Rights, Exceptions, and Limitations
Module 5: Managing Rights
Module 6: Creative Approaches and Alternatives
Module 7: Enforcement
Module 8: Traditional Knowledge
Module 9: Activism
Glossary

The Rotisserie