Glossary created by Berkman Center team

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Making it possible for others to simultaneously experience a copyrighted work.

The right to perform a work publicly is one of the basic rights granted to a copyright holder. Public performance covers a wide range of activity, and the law addressing this tends to be quite complex and fact specific. Putting on a play, reading a book aloud to an audience, or playing a music recording at a club are all public performances.

The limits of the ability or right of a rightsholder to control public performances can under scrutiny in 2009 when, among other incidents, a representative of ASCAP, the American Society for Composers, Artists and Performers asserted his belief that ASCAP should be able to charge licensing fees for cell-phone ring-tones, since whenever the phone rang it was a “public performance” of the underlying musical work. Critics accused ASCAP of merely trying to get a piece of the lucrative ringtone market.

In another controversial episode, The Authors Guild of America asserted that the text-to-speech function of the Amazon Kindle e-book reader constituted a public performance when it was activated, since the book was “read” aloud. Although Amazon asserted that the text-to-speech function was completely legal, it nevertheless acquiesced to authors’ demands by making the function work on a title by title basis. Some publishers immediately chose to disable that function for their e-books. Both Amazon’s actions and those of the publishers drew heavy criticism from disabled persons’ rights groups.

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Broadly, any infringement of copyright by copying, or copyright-related theft.

Despite the images it may evoke of ocean-going bearded villains with swords, when it comes to copyright law, piracy is a catch-all term, used to describe many different sorts of copyright infringement, and all types of illegal copying.

Some analysts have pointed to and criticized a semantic trend from using piracy to describe only large-scale copying for commercial gain to using, to describe any unauthorized of copying.

But, the fact remains that common usage uses the term piracy to describe not only organizations making hundreds of thousands of counterfeit DVDs, but also to describe peer-to-peer file sharing and at-home, individual personal copying, which may or may not be fair use, depending on who is doing the analysis.

The content industry sees illegal copying as a very serious threat, which may account for their routine usage of such a loaded word, perhaps in an attempt to impute the traits of the very worst sorts of copying to all of it.

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The use of another’s work without citation or accreditation, with the intent of passing it off as one’s own.

Plagiarism is a type of copying, but is not necessarily copyright infringement. Therefore, it would be possible to have a situation in which use of someone else’s work was not a copyright infringement (the use was fair, the work was in the public domain, the user had permission) but was still plagiarism, because the user did not acknowledge the true author of the work in question. Although such a use would be legal, it would be unethical.

Copying and giving appropriate credit is not plagiarism, but could still be copyright infringement.

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Public Domain

The great mass of creative work to which no one holds copyright. The world’s common cultural resources and heritage.

In copyright law, the public domain can be thought of as those creative works to which everyone has access, and over which no one has exclusive control. Some works in the public domain were created prior to any formal legal system of copyright. Some works in the public domain were once under copyright, but the term of those copyrights has expired, allowing the work to pass into the public domain. The length of time before a work passes into the public domain depends on when a work was created, and the copyright regime in place at the time.

The public domain has been an issue in several recent copyright controversies, including the Google Book Search settlement and a German man who was uploading photographs of public domain artworks to Wikipedia

Dedication To

A creator can, if he or she wants to, choose to waive the copyright in his or her work by deliberately dedicating it to the public domain. Once this is done, the creator can no longer claim the privileges conferred by copyright, and any member of the public may make use of the work.

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Public Performance or Display

A copyrighted work is publicly displayed if the public has access to it.

The right to publicly display or perform a creative work is one of the fundamental rights granted to a copyright holder. A work is publicly displayed or performed if the public can view it. Whether the public has to pay is not an issue.

U.S. Copyright Act, Section 101 states:

“To perform or display a work “publicly” means (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

So, a painting on the wall of someone’s home is not publicly displayed, but a painting on the wall of City Hall is. When the work in question is an outdoor artwork, or a building, things can become difficult to determine. There is also the question of whether a search engine is publicly displaying works when it shows thumbnail images.

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