Basic Copyright Vocabulary

Assignment of copyright - Like a sale of copyright, usually made in return for a lump sum payment of a share of the income produced by the work. For example, in the case of a music publishing agreement, a transfer of ownership of the song copyright from the songwriter to the music publisher is made in return for the promises the publisher makes in the music publishing agreement regarding advance and periodic payment of royalties to the author. In addition to assignment of an entire copyright, an author may also assign only part of a copyright. The copyright statute requires that the transfer of ownership of any copyright be made in a written document signed by the person assigning ownership of the copyright to someone else; no verbal assignment of copyright is possible. Anyone who acquires any right of copyright by assignment can, in turn, sell that right to someone else unless the written assignment of copyright provides otherwise. An assignment of copyright may also be referred to as a "transfer" of copyright. Assignment of copyright is one of three ways that ownership of rights in copyright is transferred to someone besides the author of the copyrighted work; the other two are license and work-for-hire.**

Berne Convention - The Convention for the Protection of Literary and Artistic Works, signed in Berne, Switzerland on September 9, 1886, and all acts, protocols, and revisions thereto. A work is a "Berne Convention work" if:

1. in the case of an unpublished work, one or more of the authors is a national of a nation adhering to the Berne Convention, or in the case of a published work, one or more of the authors is a national of a nation adhering to the Berne Convention on the date of the first publication;
2. the work was first published in a nation adhering to the Berne Convention, or was simultaneously first published in a nation adhering to the Berne Convention and in a foreign nation that does not adhere to the Berne Convention;
3. in the case of an audiovisual work - (a) if one or more of the authors is a legal entity, that author has its headquarters in a nation adhering to the Berne Convention; or (b) if one or more of the authors is an individual, that author is domiciled, or has his or her habitual residence in, a nation adhering to the Berne Convention;
4. in the case of a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, the building or other structure is located in a nation adhering to the Berne Convention; or
5. in the case of an architectural work embodied in a building, such building is erected in a country adhering to the Berne Convention.
For purposes of Paragraph 1, an author who is domiciled in or has his or her habitual residence in, a nation adhering to the Berne Convention is considered to be a national of that nation. For purposes of Paragraph 2, a work is considered to have been simultaneously published in two or more nations if its dates of publication are within thirty days of one another. **

Case law - Law that originates in the decisions of courts as opposed to written laws passed by state legislatures of the U.S. Congress, which are called "statues." **

Compilation - A work formed by the collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term "compilation" includes collective works. **

CONFU Guidelines - Established in September 1994, CONFU (Conference on Fair Use) is the venue for development of guidelines for Fair Use in the electronic environment. CONFU participants have been working toward development of guidelines for a number of areas including: interlibrary loan, electronic reserves, visual images, and distance education.

CONTU Guidelines - Non-binding, but commonly accepted, numerical specifications adopted by libraries and others to define practical limits to copying of copyrighted works under the doctrine of "fair use" as set forth in the new Copyright Act of October 19, 1976. These guidelines were developed by "CONTU," the "National Commission on New Technological Uses of Copyright Works," and were agreed to by the principal library, publisher, and author organizations prior to acceptance by House and Senate sub-committees working on the Copyright Act. Libraries generally base their limits on fair use photocopying on the CONTU Guidelines. [more information]

Consumer Broadband and Digital Promotion Act of 2002 - Introduced by Sen. Ernest Hollings, D-S.C., would give the entertainment and technology industries up to 18 months to agree to a technological standard that would halt the spread of unauthorized copying of digital video and audio. Makes it a criminal act to circumvent technology used to protect copyrights.

Copies - Material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed. **

Derivative work - An alternative version of a copyrighted work, i.e., an work "derived" from or based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other work of authorship is a derivative work. The right to prepare derivative works from a copyrighted work is one of the exclusive rights of copyright reserved to copyright owners in the U.S. copyright statute. **

DMCA/Digital Millennium Copyright Act - 1996 "comprehensive reform" of U.S. Copyright Law. Addresses copyright issues presented by emerging digital media environment. "Key among the topics included in the DMCA are provisions concerning the circumvention of copyright protection systems, fair use in a digital environment, and online service provider (OSP) liability (including details on safe harbors, damages, and "notice and takedown" practices.) [EDUCAUSE - "Current Issues"] [more information]

Fair use - A kind of public-policy exception to the usual standard for determining copyright infringement; that is, there is an infringing use of a copyrighted work but because of a countervailing public interest, that use is permitted and not called infringement. Any use that is deemed by law to be "fair" typically creates some social, cultural, or political benefit which outweighs any resulting harm to the copyright owner. The copyright statute identifies six purposes that will qualify a use as a possible fair use: criticism, comment, news reporting, teaching, scholarship, or research. Once any use of a copyrighted work has been proved to have been made for one of these six purposes, the use must be examined to determine whether it is indeed fair. The copyright statute lists four factors that courts must weigh in determining fair use; the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. **

First Sale Doctrine - The doctrine specified in Title 17, section 109 of the U.S. Code, - "Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord," in part, that " the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. " Libraries, which regularly purchase works and loan them to users, are clearly very dependent on First Sale.

Fixation - One of three statutory requirements for copyright protection; the other two are that the work must embody some "expression" of the author, rather than consisting only of an idea or ideas, and the work must be "original," that is, the work was not copied from another work. The U.S. copyright statute provides that the moment a work is "fixed" in any tangible form that allows the work to be perceived by the senses (with or without the aid of a mechanical device, such as a CD player or videocassette player), that work is automatically protected by copyright. A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is considered by the copyright statute to be "fixed" if a fixation of the work is being made simultaneously with its transmission. **

Intellectual property - Intangible property that is a product of the imagination, i.e. copyrights, trademarks, and patents. Although all three protect products of the human imagination, copyrights, trademarks, and patents are distinct but complimentary. Each is governed by a different federal law and the principles concerning ownership, registration, and infringement of each vary widely. **

Joint work - A work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. **

Patent - A patent is a monopoly granted by the U.S. Patent Office for a limited time to the creator of a new invention. A utility patent may be granted to a process; a machine; a manufacture; a composition of matter; or an improvement of an existing idea that falls into one of these categories. Utility patents endure twenty years after the application for a patent was filed. Plant patents are issued for new asexually or sexually reproducible plants and last seventeen years from the date of issue. Design patents are granted for ornamental designs used for nonfunctional aspects of manufactured items. A design patent lasts fourteen years from the date it is issued. **

Permission - A consent to use a work, usually by reprinting or reproducing it in some other work, such as the reproduction of photographs in a biography of the subject of the photographs. Permissions are actually non-exclusive licenses to use a work in a specified way. The owner of copyright in the materials sought to be used may or may not be compensated for the use.

Public domain - Primarily, works for which copyright protection has expired. The U.S. copyright statute is based on the assumption that creative people will be encouraged to be creative if they are given exclusive control for a period of time over the use of their works. After that control ends, the public benefits from the right to make unlimited use of the previously protected creations. When a work falls into the public domain the work has become available for fair use in any way by anyone. Besides works for which copyright protection has expired, the other major category of public domain works is works created by officers or employees of the U.S. government as part of their government jobs, which are in the public domain because the government has chosen not to claim copyright in works created at the taxpayers' expense. ** [more information]

Publication [including public display] - The distribution of copies or phonorecords to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purpose of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. To perform of 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 of display of a 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 at the same time or at different times. Because publication, in the context of copyright, can determine the expiration of the term of copyright for a work created as a work-for-hire or under a pseudonym, it can be very important to determine whether and when such a work has been published within the meaning of the copyright statute. **

Security Systems Standards and Certification Act (SSS) - Act would require that all future digital technologies include federally-mandated "digital rights management" (DRM) technologies [some form of copyright protection] in order to permit "content providers' to control/restrict how consumers can use digital content.

Statue of limitations - The period within which a lawsuit must be filed. The statute of limitations for copyright infringement suit instead of the money lost by the plaintiff as a result of an infringer's actions plus the actual amount by which the infringer profited from the use of the plaintiff's work. Because actual damages can be very difficult, time-consuming, expensive, or impossible to prove during infringement lawsuits, and because infringer often do not profit from their infringements, awards of statutory damages available under the copyright statute have been increased to permit awards up to $ 150,000, depending on the circumstances and the judgment of the court. **

Term of copyright - The period during which copyright protection endures for a copyrightable work. For any work created after December 31, 1977, copyright protection begins the moment the work is first fixed in tangible form, How long it last depends to a large extent on who created it and under what circumstances. Under ordinary circumstances, copyright protection lasts for the remainder of the life of the author of the work plus seventy years; if two or more authors jointly create a work, copyright protection will endure until seventy years after the last of the authors dies. If a work is created as a work-for-hire, anonymously, or under fictitious name, the term of copyright will be either one hundred and twenty years from the date the work was created or ninety-five years from the date is published, whichever period expires first. **

TEACH Act - The Technology, Education and Copyright Harmonization Act or TEACH Act was signed into law on November 2, 2002. It redefines the terms and conditions on which accredited, nonprofit educational institutions may use copyright protected materials in distance education including websites without permission from the copyright owner and without payment of royalties.

Trademark - A word or symbol used to identify a product or service in the marketplace. Rights in a trademark accrue only by use of the trademark in commerce and belong to the company that applies the mark to its products rather than to the person who creates the name or logo. A company gains rights in a trademark in direct proportion to the geographic scope and duration of its use of the mar; ordinarily, the company that uses a mark first gains rights in that mark superior to those of any other company that later uses it for the same product or services. Unauthorized use of a mark is infringement. **

Transfer of copyright - Another term for assignment of copyright ownership. A transfer of copyright ownership is an assignment, mortgage, or exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or any of the exclusive rights comprised in a copyright, whether or note it is limited in time or place of effect, but not including a nonexclusive license. **
Work made for hire - A work created by an independent contractor (a freelancer) if the work falls into one of nine categories of specially commissioned works named in the U.S. copyright statute and both the independent contractor and the person who commissions the creation of the work agree in writing that it is to be considered a work-for-hire, or a work that is created by an employee as part of his or her full-time job. Works-made-for-hire belong to the employers of the people who create them, and those employees are considered the authors of those works for copyright purposes from the inception of the works. (Work-for-hire is one of the three ways that ownership of rights in copyright are transferred to someone besides the author of the copyrighted work; the other two are assignment of copyright and license of copyright.) **

** Definition quoted in full from The Copyright Guide; a friendly guide to protecting and profiting from copyrights, rev. ed., by Lee Wilson, Allworth Press, 2000 . [Allworth Press: (212) 777-8395; http://www.allworth.com/]