Glossary
Glossary created by Berkman Center team
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“Sweat of the brow”"Sweat of the brow" refers to the effort put into something, and any value created as a result. If you work hard at something, you sweat. Some translations of the book of Genesis in the Christian Bible or Jewish Pentateuch have God telling Adam that as part of Adam's punishment, he will have to produce his food by the “sweat of his brow”. In copyright law, the logic runs as follows: someone who has invested a great deal of time and energy in producing something needs to be protected, otherwise someone else can take it (by copying) and reap all of the benefit with none of the labor. This is the “labor theory” of property, historically associated with John Locke. However, most copyright regimes do not grant copyright in something simply because it is the result of hard work. There is typically an originality requirement as well. The United States has explicitly rejected the sweat of the brow theory, in the case Feist Publications v Rural Telephone, which dealt with the partial copying of a telephone directory. That being said, the EU grants protection in factual databases on what is essentially a “sweat of the brow” theory. See also:
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“Three-step Test”The Berne Convention’s Three-Step Test describes the criteria by which a participating country can have its own unique limits or statutory exemptions on copyright law without violating the terms of the Convention. The three steps come originally from Article 9(2) of the Berne Convention, which reads: “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” This language can be broken out into the following three steps. 1) The exemptions must be for special cases or types of creative work only; 2) The exemptions allowed must not conflict with the “normal’ exploitation of the work that copyright usually makes possible, and; 3) the exemptions must not unreasonably prejudice the legitimate interests of the author. This language has since been exported -- with important modifications -- to a number of other international copyright treaties, including the TRIPS agreement, several WIPO treaties, and the EU Copyright Directive. The wide range of contemporary interpretations of the three-step test is discussed in Module 2: The International Framework. See also:
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“Three-Strikes” LawsA law where the third offense results in more serious penalties. A “three-strikes” law is a reference to baseball, where it is “three strikes and you are out”. Such laws have stronger penalties following a third infraction. In the copyright context, three strikes laws are copyright enforcement statutes where an Internet user’s Internet access can be summarily cut off after three accusations of copyright infringement. While strongly supported by the content industry and institutional rights-holders, these laws have come under a great deal of criticism from Internet users, advocacy groups, Internet service providers and libraries for heavily favoring content providers and rights-holders over the public. This is because these laws penalize users based on accusations ( received complaints about a user), not proven infringement, so there is a strong sense of “guilty until proven innocent”. Further the procedures for making an accusation are highly streamlined, whereas the procedures for challenging them are difficult. Such laws have been proposed or passed in France, South Korea, New Zealand and Canada, among others, although some have failed to pass or been struck down. See also:
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