Glossary

Copyrights protect original creative works, granting creators exclusive rights to control their use and distribution. This legal framework covers a wide range of expressions, from books and music to art and software, providing economic incentives for innovation and creativity.

Understanding copyrights is crucial for international consultants advising small and medium-sized enterprises. It impacts how businesses create, use, and monetize intellectual property, affecting everything from product development to marketing strategies in the global marketplace.

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  • Exclusive legal right granted to the creator of an original work
  • Protects the expression of ideas in a tangible form (writings, music, art, etc.)
  • Automatically attained when a work is created and fixed in a tangible medium
  • Provides the copyright owner with a bundle of exclusive rights to control the use and distribution of their work
  • Covers a wide range of creative works including literary, musical, dramatic, and artistic works
  • Protects the expression of ideas, not the ideas themselves
  • Requires a minimal degree of creativity and originality
  • Does not protect facts, ideas, systems, or methods of operation
  • Limited duration of protection, typically the life of the author plus a certain number of years
  • Copyright protects original creative expressions (books, music, films)
  • Patents protect inventions and discoveries (machines, processes, compositions)
  • Trademarks protect words, phrases, symbols, or designs identifying the source of goods or services (brand names, logos)
  • Trade secrets protect confidential business information that provides a competitive advantage (formulas, client lists)

Author as default owner

  • The creator of a work is typically the default owner of the copyright
  • Automatic ownership upon creation and fixation of the work in a tangible form
  • No registration or notice required for ownership to vest in the author
  • Author can transfer ownership through written agreement or assignment

Works made for hire

  • Exception to the default ownership rule for works created by employees within the scope of their employment
  • Employer is considered the author and owns the copyright in works made for hire
  • Certain commissioned works can also be designated as works made for hire through written agreement (contributions to collective works, translations, instructional texts)

Joint authorship of works

  • Works created by two or more authors with the intention of merging their contributions into a single work
  • Each joint author holds an equal, undivided interest in the entire work
  • Joint authors are co-owners of the copyright and can independently exploit the work, subject to accounting to other joint authors for profits
  • Contributions must be independently copyrightable and not just ideas or feedback

Benefits of registration

  • Establishes a public record of the copyright claim
  • Prerequisite for filing an infringement lawsuit in the U.S.
  • Allows for statutory damages and attorney's fees if registered prior to infringement or within 3 months of publication
  • Provides prima facie evidence of validity if registered within 5 years of publication

Registration requirements

  • Completed application form identifying the work, author, and claimant
  • Nonrefundable filing fee paid to the U.S. Copyright Office
  • Deposit copies of the work being registered (typically two complete copies for published works)
  • Registration can be done online through the Electronic Copyright Office (eCO) system
  • Consists of the © symbol (or word "Copyright"), the year of first publication, and the name of the copyright owner (e.g., © 2023 John Doe)
  • No longer required for works published after March 1, 1989, but still provides benefits
  • Informs the public that the work is protected by copyright
  • Identifies the copyright owner for potential licensees or users
  • Eliminates a defense of innocent infringement in some cases

Right to reproduce the work

  • Making copies or phonorecords of the copyrighted work
  • Includes the right to make digital copies and store them electronically
  • Extends to temporary copies made in the RAM of a computer

Right to create derivative works

  • Preparing adaptations, translations, or other works based on the original copyrighted work
  • Examples include sequels, movie adaptations, musical arrangements
  • Derivative works are separately copyrightable but require permission from the original copyright owner

Right to distribute copies

  • Selling, renting, leasing, or lending physical copies of the work to the public
  • Includes the right of first publication and determining how the work is distributed
  • Applies to digital distribution of copies through downloads or

Right to perform the work publicly

  • Performing literary, musical, dramatic, or choreographic works in a public space or transmitting them to the public
  • Includes live performances and digital audio transmissions of sound recordings
  • Applies to public performances in person and through digital means (streaming)

Right to display the work publicly

  • Showing a copy of the work directly or through a device in a public space
  • Includes displaying literary, musical, dramatic, choreographic, pictorial, graphic, or sculptural works
  • Applies to displaying a physical copy or transmitting a display to the public (website images)

Definition of infringement

  • Violation of any of the exclusive rights granted to the copyright owner
  • Includes copying, distributing, performing, or displaying the work without permission
  • Does not require intent or knowledge, but innocent infringement may affect damages

Common types of infringement

  • Literal copying of the entire work or substantial portions of it
  • Creating unauthorized derivative works based on the original
  • Distributing or selling copies of the work without permission
  • Performing or displaying the work publicly without a license

Contributory vs vicarious infringement

  • Contributory infringement is knowingly inducing, causing, or materially contributing to infringing conduct
  • Vicarious infringement is profiting from infringing activity while having the right and ability to control it
  • Both extend liability beyond the direct infringer to third parties

Consequences of infringement

  • Injunctions to stop the infringing activity and prevent future infringement
  • Monetary damages, including actual damages and any additional profits of the infringer
  • Statutory damages of up to $150,000 per work for willful infringement
  • Attorney's fees and costs may be awarded to the prevailing party

Fair use doctrine

Four factors of fair use

  1. Purpose and character of the use (commercial vs. nonprofit, transformative vs. verbatim)
  2. Nature of the copyrighted work (factual vs. creative, published vs. unpublished)
  3. Amount and substantiality of the portion used in relation to the whole work
  4. Effect of the use upon the potential market for or value of the copyrighted work

Transformative use considerations

  • Uses that add new expression, meaning, or message to the original work
  • Parody, criticism, commentary, and news reporting are often considered transformative
  • Transformative uses are more likely to be deemed

Fair use in different industries

  • Education: Copying for teaching, scholarship, or research purposes
  • Music: Sampling, parody, and cover versions of songs
  • Film and video: Clips used for criticism, commentary, or documentary purposes
  • Software: Reverse engineering for interoperability or security testing

Berne Convention basics

  • International agreement governing copyright protection across member countries
  • Establishes minimum standards for copyright protection and eliminates formalities
  • Principle of national treatment: Works from member countries receive the same protection as domestic works
  • Provides for automatic protection without the need for registration or notice
  • Each country has its own copyright laws that may provide additional or different protections
  • Some countries have moral rights (attribution and integrity) in addition to economic rights
  • Duration of copyright protection varies, with many countries adopting life of the author plus 50 or 70 years
  • Exceptions and limitations to copyright, such as fair use or fair dealing, differ among countries
  • Enforcing copyrights across borders can be challenging due to differences in laws and procedures
  • International treaties () provide a framework for enforcement and dispute resolution
  • Copyright owners can seek remedies through local courts in the country where infringement occurs
  • Online infringement can be addressed through takedown notices and cooperation with internet service providers

Licensing copyrighted works

Exclusive vs non-exclusive licenses

  • Exclusive license grants the licensee the sole right to use the work, excluding even the copyright owner
  • Non-exclusive license allows multiple licensees to use the work simultaneously
  • Exclusive licenses must be in writing and signed by the copyright owner

Licensing agreement essentials

  • Scope of rights granted (reproduction, distribution, performance, display)
  • Territory and duration of the license
  • Royalty payments and other compensation
  • Termination provisions and consequences of breach
  • Warranties and indemnification clauses

Royalties and other considerations

  • Royalties are payments made to the copyright owner for the use of their work
  • Can be based on a percentage of sales, a flat fee per unit, or a lump sum payment
  • Other considerations include advances, minimum guarantees, and audit rights
  • Royalty rates vary depending on the industry, type of work, and market conditions
  • For works created after January 1, 1978, copyright lasts for the life of the author plus 70 years
  • For anonymous works, pseudonymous works, or works made for hire, copyright lasts 95 years from publication or 120 years from creation, whichever is shorter
  • Works created before 1978 may have different terms based on prior copyright laws

Public domain works

  • Works that are no longer protected by copyright and can be freely used without permission
  • Includes works whose copyright term has expired, works published before 1923, and works dedicated to the by their creators
  • U.S. government works are also in the public domain and can be used freely
  • For works published before 1978, copyright had to be renewed after an initial 28-year term to receive the full protection
  • If not renewed, works entered the public domain after the first 28 years
  • Renewal is no longer required for works created after January 1, 1978, as they have a single term of protection

DMCA safe harbor provisions

  • Limits liability of online service providers for copyright infringement by their users
  • Requires providers to implement notice-and-takedown procedures for infringing content
  • Providers must designate an agent to receive infringement notifications
  • Exempts providers from liability for automatic processes, caching, and linking

DMCA takedown notices

  • Formal requests sent by copyright owners to service providers to remove infringing content
  • Must include identification of the copyrighted work, infringing material, and the complaining party
  • Providers must promptly remove the content and notify the alleged infringer
  • Counter-notices can be filed by users to contest the removal and have content restored

Anti-circumvention rules

  • Prohibits circumventing technological measures that control access to copyrighted works
  • Bans manufacturing or trafficking in devices or services primarily designed for circumvention
  • Provides exemptions for certain uses (security testing, accessibility, archiving)
  • Criminal penalties for willful circumvention for commercial gain

Copyrights in the digital age

  • Ease of copying and distributing digital content without permission
  • Difficulty in identifying and locating infringers across borders
  • Balancing copyright protection with fair use and free speech online
  • Adapting copyright laws to new technologies and platforms

Streaming and other technologies

  • Streaming platforms (Netflix, Spotify) have changed how content is consumed and licensed
  • Legal issues around unauthorized streaming and stream-ripping
  • Blockchain technology and its potential impact on copyright management and royalty distribution
  • Artificial intelligence and machine learning in creating and analyzing copyrighted works
  • Need for international harmonization and cooperation in enforcing copyrights
  • Balancing interests of creators, users, and intermediaries in the digital environment
  • Addressing orphan works and out-of-print works through licensing and digitization efforts
  • Adapting copyright exceptions and limitations to facilitate innovation and creativity

Key Terms to Review (18)

Berne Convention: The Berne Convention for the Protection of Literary and Artistic Works is an international agreement that governs copyright protection across member countries. It establishes the principle that works are protected in all member states without the need for formal registration, promoting the rights of authors and creators globally. This convention plays a crucial role in ensuring that copyright laws are harmonized internationally, protecting the rights of creators in an increasingly interconnected world.
Cease and desist letter: A cease and desist letter is a formal document sent to an individual or organization to stop allegedly infringing on rights, typically involving trademark or copyright violations. This letter serves as a warning that legal action may follow if the recipient does not comply with the request to cease the infringing activities. It is a critical tool used by rights holders to protect their intellectual property and enforce their rights.
Copyright assignment: Copyright assignment is the legal process through which a copyright owner transfers their rights in a work to another party. This transfer can be partial or complete, allowing the assignee to exercise various rights such as reproduction, distribution, and public performance of the copyrighted material. Understanding copyright assignment is crucial for individuals and businesses involved in creative industries, as it affects ownership and control over original works.
Digital rights management: Digital rights management (DRM) refers to a set of technologies and practices designed to control the use of digital content and devices after purchase. DRM aims to protect the intellectual property rights of creators and distributors by preventing unauthorized copying, sharing, and distribution of digital media. It encompasses various techniques like encryption, licensing agreements, and access controls to ensure that digital products are used in accordance with copyright laws.
Distribution rights: Distribution rights refer to the legal permissions granted to a party to distribute a copyrighted work, allowing them to sell, lease, or otherwise disseminate that work to the public. These rights are crucial for protecting the interests of creators and copyright holders, as they determine who can profit from the work and under what conditions. The scope of distribution rights can vary significantly, including exclusive or non-exclusive rights, territorial limitations, and specific formats of distribution.
Fair use: Fair use is a legal doctrine that allows limited use of copyrighted material without acquiring permission from the rights holders. This concept is essential in balancing the interests of copyright owners with the public's need to access and utilize creative works for purposes like education, commentary, and criticism. Understanding fair use helps navigate intellectual property rights while allowing for innovation and discourse.
File sharing: File sharing is the practice of distributing or providing access to digital files, such as documents, music, and videos, over the internet or a network. This process can be done through various methods, including peer-to-peer networks, cloud storage services, and file transfer protocols. While file sharing facilitates easy access and collaboration, it raises significant concerns regarding copyright infringement and the unauthorized distribution of protected materials.
Injunction: An injunction is a legal order issued by a court that compels an individual or entity to do or refrain from doing specific actions. In the context of copyrights, injunctions are critical in protecting the rights of creators by preventing unauthorized use or distribution of their copyrighted works. They serve as an important remedy for copyright infringement, allowing courts to stop harmful actions before they cause irreparable damage to the rights holder.
James Boyle: James Boyle is a prominent legal scholar and professor known for his work on intellectual property law, particularly in the context of copyright and the public domain. He has significantly influenced the debate surrounding the balance between protecting creators' rights and ensuring access to knowledge and culture, arguing for a more open approach to intellectual property.
Lawrence Lessig: Lawrence Lessig is a prominent legal scholar and activist known for his work on copyright law, digital culture, and the impact of technology on society. He is a strong advocate for the reform of copyright laws to promote creativity and innovation, particularly in the context of digital media, where traditional copyright frameworks can hinder the free exchange of ideas and content.
Literary works: Literary works refer to original creations of written, spoken, or sung expression that convey ideas, stories, emotions, or concepts through the use of language. These works can take various forms including novels, poems, plays, essays, and articles, and are protected by copyright laws to ensure that the creators maintain exclusive rights to their use and distribution. Copyright provides authors with legal recognition and the ability to control how their works are reproduced and shared.
Musical works: Musical works refer to original compositions of music, including both the melody and harmony, which can be expressed in various forms such as songs, symphonies, or instrumental pieces. These works are protected under copyright law, allowing the creator to control how their music is used and ensuring they receive recognition and compensation for their artistry. The concept of musical works encompasses not just the notes on a page but also the underlying creative expression and the rights associated with it.
Notice of Copyright: A notice of copyright is a statement placed on a work to inform the public that the work is protected by copyright law. This notice typically includes the word 'Copyright,' the year of first publication, and the name of the copyright owner. It serves not only as a warning against unauthorized use but also helps establish the copyright owner's rights and can influence legal disputes regarding ownership and infringement.
Public domain: Public domain refers to a body of creative works that are not protected by copyright and are free for anyone to use, modify, and distribute without seeking permission. This status typically applies to works whose copyright has expired, works created by the government, or works not meeting the criteria for copyright protection. Understanding public domain is essential as it allows for the use of cultural and educational resources without legal restrictions.
Reproduction rights: Reproduction rights refer to the legal permissions granted to an individual or entity to reproduce, distribute, or display a work that is protected under copyright law. This term is closely tied to copyright, as it governs how original works can be used by others without infringing on the creator's intellectual property rights. Understanding reproduction rights is essential for navigating the legal landscape surrounding creative works, particularly in fields like publishing, music, and digital media.
Software licensing: Software licensing is a legal framework that grants users permission to use, modify, and distribute software while outlining the limitations and conditions associated with its use. This concept is crucial for protecting the rights of software developers and ensuring that users comply with the specified terms. Licensing agreements can vary widely, impacting how software is accessed and shared in different contexts.
Streaming services: Streaming services are online platforms that allow users to access and consume multimedia content such as music, movies, and TV shows over the internet without the need for downloading. These services have transformed the way content is distributed and consumed, providing instant access to a vast library of media. They often operate on a subscription model and must navigate complex copyright laws to distribute content legally.
TRIPS Agreement: The TRIPS Agreement, or Trade-Related Aspects of Intellectual Property Rights, is a comprehensive international treaty administered by the World Trade Organization that sets minimum standards for the protection of intellectual property rights across member countries. It covers a wide range of intellectual property areas, including patents, trademarks, copyrights, and licensing practices, aiming to balance the interests of creators and users while fostering innovation and creativity on a global scale.
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