Glossary
Glossary created by Berkman Center team
Special | A | B | C | D | E | F | G | H | I | J | K | L | M | N | O | P | Q | R | S | T | U | V | W | X | Y | Z | ALL
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Due diligenceDue 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. Other resources:
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eIFLA 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 LimitationsThe 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-basedRule-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 Chaffee Amendment in U.S. Copyright law that exempts the making of copies for the disabled is an example of a rule-based exception. Guideline-basedA 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 exceptionsLibraries 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. PreservationLibraries 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. LoaningUnder 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. ResearchLibraries 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. Other resources:
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First Sale doctrineThe 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. Other resources:
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FixationReduction 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, and plays an important role in that of other countries as well. 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 dance choreography, stand-up comedy, recipes, or the performance of live music. U.S. law has a specific statutory exception 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. Perhaps surprisingly, some 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”. Other countries with no fixation requirement include Sweden, Japan, Spain and France, among others. The Berne Convention does not require fixation, although a country may do so in its internal copyright laws without violating the Convention. Other resources:
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Formalities (legal)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. Other resources: | |
Free trade agreementA 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. Other resources: | |
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GNU-GPL licenseThe 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:
A program is free software if users have all of these freedoms. Other resources: | |
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HADOPIA 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. Other resources:
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