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Glossary created by Berkman Center team



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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, they can inform the host, who 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 and lengthy 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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A

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:

  • Work-For-Hire
  • Open Access

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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.”

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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.

See also:

  • Moral Rights
  • Right of Integrity
  • Right of Withdrawal
  • Right of Attribution

B

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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C

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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