Glossary created by Berkman Center team

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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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The act of avoiding, breaking or otherwise bypassing protections on digital content and technology.

Many digital or electronic resources, including online databases, software and more, come with built-in protections which in theory prevent illegal copying or impermissible uses. For example, DVDs may have a “region code” embedded in their data that prevents them from being played on DVD players from different parts of the world. Likewise, software may have added code, or encryption, which prevents it from being copied.

Although these technological barriers may arguably help to protect illegal copying or use of content, they can also get in the way of legitimate uses, such as playing a DVD on a Linux-based player, or making an archival copy of software. A user who wants to do these things will therefore have to circumvent, or break, the protection measures. However, this is illegal to do in many countries.

Notably, in the United States, Section 1201 of the Digital Millennium Copyright Act (1998) specifically forbids circumvention of technological protection measures, and even makes it illegal to sell or own anything that facilitates circumvention.

Laws like Section 1201 are controversial, because from one perspective, the protections a law like this facilitates are parallel to, and can last longer than, those offered by copyright. This arguably defeats the purpose of copyright law’s limited duration protections, violates copyright’s implicit bargain with the public and harms the public domain.

See also:

  • Technological Protection Measures
  • Right of Access
  • DMCA

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The International Confederation of Societies of Authors and Composers. CISAC is an organization composed of numerous national preforming rights societies.

According to its website, CISAC “works towards increased recognition and protection of creators’ rights. CISAC was founded in 1926 and is a non-governmental, non-profit organisation. Its headquarters are in Paris, with regional offices in Budapest, Buenos Aires, Johannesburg and Singapore. . . . . As of June 2008, CISAC numbers 225 authors’ societies from 118 countries and indirectly represents more than 2.5 million creators within all the artistic repertoires: music, drama, literature, audio-visual, graphic and visual arts.”

Civil Law

A legal system in which the law is based almost exclusively on legislation.

Such a system is as opposed to a common law system (based on tradition and court decisions) or a religious law system. Civil law regimes tend to be either inspired by or directly descended from Roman legal systems.

According to Wikipedia, “The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. It is the most prevalent and oldest surviving legal system in the world.”

Most of Europe and its former colonies have civil law-based legal systems, many of which hearken back to the Napoleonic Code.

This version of civil law is not to be confused with the sort that occurs in the civil law / criminal law distinction, in, among others, U.S. law.

See also:

  • Common Law
  • Religious Legal System

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Collective Rights Management Organization/Society

An organization that controls the economic rights to a large number of creative works.

Also known as “collecting society” or a "copyright collective.”

A collective rights management organization or society most often deals with the rights to music and text. These groups lower the transaction costs of acquiring rights, and make it easy for would-be users of copyrighted works to get permission to do so. With a collective rights group, there need only be one set of negotiations and one fee paid, regardless of how many different works are used. Compare having to find and negotiate with the rights-holders for one hundred different songs with negotiating a single contract.

While groups like this undoubtedly solve a market problem, criticisms leveled against them include that they do not channel enough of the fees they receive to the actual artists, and that they seek to unfairly charge for uses over which they should not have control. Also, most notably, there are no collective rights groups managing the rights to sound recordings, which has led to much controversy over sampling.

Some collective rights management organizations include:

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Collective work

A creative work that represents the creative input of more than one author.

When two or more people share the copyright in a work they are referred to as “joint authors” A movie is a classic example of a collective work, involving as it does the efforts of hundreds, if not thousands, of people. Nevertheless, the rights to collective works are usually held by only one, or at most a few, people. In the case of a movie, most of the people working on it are treated, by their contract, as employees, rather than as joint authors.

Common Law

A legal system based primarily on custom and the precedent of court decisions.

International legal systems tend to fall into one of three categories. Typically found within countries that have some historical connection with the United Kingdom or the former British Empire ,“common law” systems have a legal system based primarily on custom -- the precedent set by court decisions (“case law”) , in contrast to civil law systems or religious law systems.

See also:

  • Civil Law
  • Religious Legal System

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This term refers to both the property that is owned by the community in general and the social regime for governing usage of that resource.

Some historical commons were truly open to all, but some were governed by rules that limited access. However, despite what might seem like a complete lack of any rules for governing the maintenance and usage of a commons, they were historically at the center of a complex web of social norms, and were well-monitored and maintained.

In the late 1960s a school of thought emerged whcih claimed that any real commons would quickly be over-exploited by an economically rational user, and that only private ownership could successfully manage societal resources.

Although this idea was quickly and widely accepted, it has been challenged in recent years for misstating the facts surrounding historical commons, as well as for overlooking the real problems that can arise from complex webs of private ownership, a problem Michael Heller has called “the tragedy of the anti-commons.”

With respect to copyright, the commons is the enormous body of creative work to which all of society has access. Some is historical, some is contemporary. Everyone having access to them does not necessarily mean that no one holds copyright in the works that make up the commons. Some works are in the public domain, which means that not only can anyone access them and make use of them, but that no one has the right to restrict their usage in anyway. On the other hand, works existing under regimes such as Creative Commons, or the GPL license , as well as so-called “Open Access” journals, are examples of copyright-controlled information that is nonetheless part of the commons. For example, the works of Shakespeare, or a culture’s folktales, are part of the commons, as is any modern work which its author has dedicated to the public domain. Further, any work to which anyone has access, but for which the usages are restricted (usually with respect to keeping further uses of the work open to access) are still considered part of the commons.

See also:

  • Public Domain

Other resources:


A work that gathers together other previously existing copyrighted works or facts.

For example, an anthology of stories is a compilation. A recording that brought together songs from a wide variety of artists, such as a soundtrack album, would be a compilation. A database is also a compilation, of facts rather than creative works. In many jurisdictions, it is possible to hold a separate copyright in a compilation that is independent of any copyright in the works that make it up, as long as there is sufficient creativity in the selection and arrangement of the works. It is also possible to hold copyright in a database, based on the selection and arrangement of its factual elements, or alternatively, based on the effort that went into creating it.

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Compulsory License

A license for use of copyrighted material that is mandated by law to be made available to everyone on an equal basis, usually in exchange for the payment of a set fee.

From the user’s perspective, it is a use for which the user does not need to seek permission. That is, the rights-holder may not refuse to grant the license to the user. The rights-holder still has the right to whatever revenue comes from the use, but has no rights of control.

Such licenses are always non-exclusive, since anyone can obtain one, and the fees that are paid to the rights-holder for them are usually set by statute. An example of a compulsory license is the so-called “mechanical license” under U.S. law for recording a new version of an existing song. Once a song has been released to the public, any other artist may record a version of it, and must pay a set fee (currently 2.5 cents per copy) to the rights-holder of that song.

This is not the only example of a compulsory license. There is a wide variety, whose nature and terms depend on the laws of the country in question, and the nature of the work. Compulsory licensing schemes exist for music, text, pharmaceuticals and more.

Recently, some copyright scholars and activists have proposed that the solution to the perceived problem of peer-to-peer filesharing will be some sort of compulsory licensing scheme. Filesharing would become legal, but artists would get paid, most likely out of a fund created by levying taxes on recordable media and associated technologies.

Other resources:

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