Saturday, 20 April 2024, 10:29 PM
Site: EIFL Virtual Learning Environment
Course: Copyright For Librarians (CFL)
Glossary: Glossary

“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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“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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“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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“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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“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-in 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.

“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:

  • DMCA
  • Notice and Takedown
  • Cease and Desist

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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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“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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“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:

  • DMCA
  • Glossary#Glossary#.22Notice_and_Takedown.E2.80.9D

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