Glossary created by Berkman Center team

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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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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.

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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 their permissiveness, and 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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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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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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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.

See also:

  • Fair Use
  • Right of Adaptation
  • Idea / Expression Dichotomy

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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.

See also:

  • "Cease and Desist" Letter
  • Circumvention
  • DRM
  • TPM
  • WIPO

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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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