Glossary created by Berkman Center team
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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.
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.”
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.
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 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 infringment 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.
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.
A contributory infringer has knowledge of the related direct infringement, i.e. that it is taking place; and must make 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.
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).
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.
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.
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.
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.
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.
See Blanket License.
See Compulsory 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.
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.
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.
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.