Glossary created by Berkman Center team

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First Sale doctrine

The 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.

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Reduction 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.

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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.

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Free trade agreement

A 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.

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