Copyright for Librarians - User contributions [en]

Main Page

2012-01-18T14:33:52Z

Thackett:

__NOEDITSECTION__
{| style="border:0; margin: 0;" width="100%" cellspacing="4"

| valign="top" style="width:55%; padding:0; border:1px solid #ffcc00; margin-bottom:3px;" |

<div style="font-size: 105%; font-weight:bold; padding:0.4em; background-color:#ffffcc; border-bottom:1px solid #ffcc00; text-align: center;">Preface</div>
<div style="background:#ffffff; padding:0.2em 0.4em 0.2em 0.4em;">
{| style="border: 0; margin: 0;" cellpadding="3"
| valign="top" |
=== Objectives ===

Copyright for Librarians is a joint project of the [http://cyber.law.harvard.edu/ Berkman Center for Internet & Society] and [http://www.eifl.net/ Electronic Information for Libraries (EIFL)], a network of library consortia in 50 countries in Africa, Asia and Europe. The goal of the project is to provide librarians in developing and transitional countries information concerning copyright law. More specifically, it aspires to inform librarians concerning:
*copyright law in general
*the aspects of copyright law that most affect libraries
*how librarians in the future could most effectively participate in the processes by which copyright law is interpreted and shaped.

=== How to Use this Course ===

The course materials can be used in three different ways. First, they can provide the basis for a self-taught course. A librarian can read the modules in sequence or focus on the modules that address issues that interest him or her.

Second, the course materials can be used in a traditional classroom-based course. In such a setting, the instructor will determine the pace at which the materials are read and will select topics for discussion. The instructor may find useful the Assignments we have included in the modules, but will likely pose additional questions as well.

Third and finally, the materials can be used in a distance-learning course. An instructor will guide the inquiry, but the librarians taking the course will participate remotely through their computers. To assist the instructors in such settings, we have included a discussion tool, originally developed at the Berkman Center, known as the Rotisserie. A manual explaining to instructors how they might use the Rotisserie is available [http://cyber.law.harvard.edu/copyrightforlibrarians/How_to_prepare_a_Rotisserie_session here]. Instructions explaining to students how to sign up for and use the Rotisserie are available [http://cyber.law.harvard.edu/copyrightforlibrarians/Information_about_the_Rotisserie_Session here]. This system can be used to facilitate conversations among the students concerning the Assignments we have included in each module. Alternatively, an instructor could identify different questions for discussion.

=== Levels ===

Not all users will have the time or interest to read all of the materials contained in this curriculum. Recognizing this, we have arranged and marked the materials in ways that should assist instructors and users in deciding how deeply to explore this subject. Specifically, the materials are organized into five levels:

* Level 1 (appropriate for users who want a basic knowledge of how copyright law affects the work of librarians in developing and transitional countries): Read modules 1, 3-7. (In other words, skip the Introduction and modules 2, 8, and 9.)

* Level 2 (appropriate for users who are also interested in the theory underlying copyright law and in the international dimensions of copyright law): Read the Introduction and all of the modules.

* Level 3 (appropriate for use in a one-semester undergraduate course in this subject or for users who wish to obtain an in-depth understanding of the field and to see how legislatures and courts are struggling to refine and apply copyright law): Read all of the modules and, in addition, all of the documents marked with red links.

* Level 4 (appropriate for use in a graduate-level course in this subject): Read all of the modules and, in addition, all of the documents marked with red and green links.

* Level 5 (appropriate for a faculty member preparing to teach this subject): Read all of the modules and, in addition, all of the documents marked with red, green, and blue links.

===Off-Line Usage===

Some users will find it more convenient to use these materials off-line. They are provided for off-line use in two formats. First, the materials have been packaged as a [[Offline ISO|ISO]] that can be [[Offline ISO|written to a CD-ROM]] and viewed with any browser (such as [http://www.google.com/chrome Chrome], [http://www.mozilla.com/firefox/ Firefox], [http://www.microsoft.com/windows/internet-explorer/default.aspx Internet Explorer], [http://www.opera.com/ Opera], [http://www.apple.com/safari/download/ Safari], etc). Second, the materials have also been packaged as a [[Offline PDF|PDF]] document that can be [[Offline PDF|viewed and printed]] with any PDF viewer (such as [http://get.adobe.com/reader/ Adobe Acrobat], [http://gnome.org/projects/evince/ Evince], [http://www.ghostscript.com/ GhostScript], [http://en.wikipedia.org/wiki/Preview_(software) Preview], etc).

An effort has been made to include all links to relevant material in both the CD-ROM and printable versions. However, in order to access content that is external to the course materials contained on this site, an internet connection is necessary.

===Permissions===

The course materials prepared by the project are licenced under a [http://creativecommons.org/licenses/by/3.0/ Creative Commons Attribution license]. Librarians and the public at large are encouraged to use, distribute, translate, modify, and build upon these materials, provided that they give EIFL and the Berkman Center appropriate credit.

===Disclaimer===

This course does not offer legal advice. It provides general information concerning the principles that underlie the copyright system, and it indicates how various concrete problems are resolved in most countries. It cannot, however, provide reliable guidance concerning how a court in a specific country would respond to a specific set of facts. Thus, if you find yourself coming close to any of the legal boundaries described in these materials, you should consult a lawyer in your own jurisdiction.

===Help Us Improve the Course===

We hope to update and refine these materials periodically. To do so, we need help from users. Please let us know if a piece of information contained in a module is incorrect or out of date. If you have suggestions concerning either the content of the modules or the way in which the content is presented, we are eager to hear them. Finally, librarians are strongly encouraged to let us know how the issues addressed in the modules are handled in their home countries; we will try to include that information in future versions.

You can make these suggestions in either of two ways. First, if you would like your suggestion to be available to the public, please click on the "Discussion" tab at the top of the module page to which your suggestion is relevant. Second, you can simply email us at [mailto:cfl-feedback@cyber.law.harvard.edu cfl-feedback@cyber.law.harvard.edu].

We look forward to your contributions.

The EIFL and Berkman teams
|}

</div>

| valign="top" style="width:40%; padding:0; border:1px solid #ffcc00; margin-bottom:3px;" |

<div style="font-size: 105%; font-weight:bold; padding:0.4em; background-color:#ffffcc; border-bottom:1px solid #ffcc00; text-align: center;">Contents</div>
<div style="background:#ffffff; padding:0.2em 0.4em 0.2em 0.4em;">
{| style="border: 0; margin: 0;" cellpadding="3"
| valign="top" |

'''[[Introduction]]'''

'''Course Materials:'''
* '''[[Module 1: Copyright and the Public Domain]]'''
* '''[[Module 2: The International Framework]]'''
* '''[[Module 3: The Scope of Copyright Law]]'''
* '''[[Module 4: Rights, Exceptions, and Limitations]]'''
* '''[[Module 5: Managing Rights]]'''
* '''[[Module 6: Creative Approaches and Alternatives]]'''
* '''[[Module 7: Enforcement]]'''
* '''[[Module 8: Traditional Knowledge]]'''
* '''[[Module 9: Activism]]'''
* '''[[Glossary]]'''
'''[[Contributors]]'''

'''The Rotisserie'''
* for students: '''[[Information about the Rotisserie Session]]'''
* for instructors: '''[[How to prepare a Rotisserie session]]'''

</div>

Glossary

2011-10-11T11:07:27Z

Thackett:

==Academic Exception==

'''Academic exception is the exception for teachers and academics to the general rule that employers hold copyright in the creative works produced by their employees in the course of their employment.'''

Unlike the a work-for-hire situtation, academics typically retain the copyrights in the scholarly work they produce, and may retain, sell or assign those copyrights, or dedicate them to the public domain, at their discretion.

''See also:''

* [[Glossary#Work_For_Hire|Work-For-Hire]]
* [[Glossary#Open_Access|Open Access]]

''Other resources:''

* [http://www.editlib.org/p/29269 A scholarly paper on the academic exception] [Canadian, access required]
* [http://www.sloan-c.org/publications/view/v1n1/CIP2.htm A brief discussion of the academic exception]
* [http://chronicle.com/article/Harvard-Faculty-Adopts/40447 An article on Harvard’s open access policy]

==“Actual Knowledge”==

'''Having direct knowledge (as opposed to merely having reason to believe) that copyright infringement is occurring.'''

Some copyright laws require web hosts to remove content from their servers if they posses "actual knowledge" that the content infringes copyright. Under such laws the hosts may become liable if they do not remove the content.

For example, Section 512(c) of the U.S. Digital Millenium Copyright Act reads:

“(c) Information Residing on Systems or Networks At Direction of Users.
(1) In general. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider
(A)
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

''See also:''

* [[Glossary#DMCA|DMCA]]
* [[Glossary#.E2.80.9CSafe_Harbors.E2.80.9D|Safe Harbors]]

''Other resources:''

* [http://www.keytlaw.com/Copyrights/dmca.htm Legal information website's page "You are here: Home Copyright Law Claims of Copyright Infringement under the DMCA Web Site Owners: How to Protect Yourself from Claims of Copyright Infringement for Users' Conduct"]
* [http://www.ipinfoblog.com/archives/intellectual-property-good-faith-in-dmca-takedown-notice-should-mean-simple-honesty.html Law professor David Nimmer's article "'Good faith' in DMCA take-down notice should mean simple honesty"]
* [http://www.wipo.int/edocs/mdocs/mdocs/en/osp_lia/osp_lia_2.doc WIPO Document" "A look back at the notice-takedown provisions of the U.S. Digital Millenium Copyright Act one year after enactment"]
* [http://jiplp.oxfordjournals.org/cgi/content/full/4/4/243 Law review article "Fair use and a takedown notice under the Digital Millennium Copyright Act" (requires subscription)].
* [http://www.benedict.com/digital/Internet/DMCA/DMCA-SafeHarbor.aspx Copyright website's article "Digital Millennium Copyright Act -- Safe Harbor Provisions"]

==American Library Association (“ALA”) Code of Ethics==

'''The voluntary code of ethics adopted by the American Library Association to govern the work of librarians.'''

The code makes “known to the profession and to the general public the ethical principles that guide the work of librarians, other professionals providing information services, library trustees and library staffs.” Its tenets “provide a framework; they cannot and do not dictate conduct to cover particular situations.”

''Other resources:''

* [http://www.ala.org/ala/aboutala/offices/oif/statementspols/codeofethics/codeethics.cfm Text of the code]

==Anti-Counterfeiting Trade Agreement (“ACTA”) Proposal (2007)==

'''A proposed multi-lateral trade agreement that is designed to better enforce intellectual property rights by combating the perceived increasing threat of counterfeiting.'''

This counterfeiting in question can be of physical goods and copyrighted works, as well as digital and Internet-based materials and technologies. Specific details of the Agreement’s content are still mostly a secret, and some countries, including the United States, restrict access to it on the basis of national security. The Agreement is generally understood to supersede or bypass UN, WIPO and TRIPS guidelines, and would, among other things, make all peer-to-peer filesharing illegal, regardless of content.

''Other resources:''

*[http://cryptome.org/acta/acta-proposal-2007.pdf Text of ACTA discussion paper]
*[http://arstechnica.com/tech-policy/news/2010/02/world-get-ready-for-the-dmca-actas-internet-chapter-leaks.ars ARSTechnica page on ACTA]
*[http://sites.google.com/site/actadigitalchapter/acta_digital_chapter.pdf?attredirects=1 Google download of treaty text]
*[http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement Wikipedia article on ACTA]
*[http://www.eff.org/issues/acta Electronic Frontier Foundation page on ACTA]
*[http://www.publicknowledge.org/issues/acta Public Knowledge page on ACTA]
*[http://www.ip-watch.org/weblog/2009/04/14/the-acta-threat-to-the-future-of-wipo/ Intellectual Property watch article on ACTA by Canadian law professor]

==Assignment==

'''The means by which ownership of a copyright is transferred to another person or entity.'''

For example, musicians often assign the copyright to their music to their publisher or record company as part of their contract, although this is not a requirement.

''Other resources:''

* [http://www.copyright.gov/help/faq/faq-assignment.html U.S. copyright office FAQ’s on “assignment”]
* [http://www.proz.com/kudoz/german_to_english/law:_contracts/1104341-wahrnehmungsvertrag.html German word for “Assignment” and explanation of same]
* [http://wiki.answers.com/Q/What_is_an_assignment_of_intellectual_property Wikianswers page on “assignment”]
* [http://agreements.realdealdocs.com/IP-Intellectual-Property-License-Assignment-Agreement/ Sample IP license agreements]
* [http://www.articlesbase.com/law-articles/what-are-intellectual-property-assignment-and-license-agreements-586467.html Short article on assignment and licensing]

==Author==

'''The original creator of a work.'''

While the word “author” is used in common vernacular to identify the person who wrote something, such as a book, paper, or article, the term "author" is used in copyright law to identify the creator of any work. Thus, a sculptor, artist or photographer would be considered the "author" of his or her work.

If a copyright is assigned or transferred to a second person or entity, that person does not become the author, merely the new rights-holder. The original author always retains that status or description, and in some legal regimes, has certain rights that cannot be assigned, altered, or renounced.

In countries that recognize the [[Glossary#Work_For_Hire|work-for-hire]] doctrine, the employer can be considered the "author" of the work.

''See also:''

* [[Glossary#Moral_Rights|Moral Rights]]
* [[Glossary#Right_of_Integrity|Right of Integrity]]
* [[Glossary#Right_of_Withdrawal|Right of Withdrawal]]
* [[Glossary#Right_of_Attribution|Right of Attribution]]

==Berne Convention for the Protection of Literary and Artistic Works==

'''The Berne Convention is an international copyright agreement that was first adopted and implemented in 1886. Its intent was to harmonize copyright law across national borders. There are currently 164 member countries.'''

[http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works According to Wikipedia], “The Berne Convention was revised in Paris in 1896 and in Berlin in 1908, completed in Berne in 1914, revised in Rome in 1928, in Brussels in 1948, in Stockholm in 1967 and in Paris in 1971, and was amended in 1979. The UK signed in 1887 but did not implement large parts of it until 100 years later with the passage of the Copyright, Designs and Patents Act of 1988.”''

The Berne Convention is currently active, and is administered by the [[Glossary#WIPO|World Intellectual Property Organization (“WIPO”)]].

While the convention grants authors an array of rights, the most important aspect of the Berne Convention is that countries must grant an author that is a citizen of another member country the same protections it offers its own citizens, in addition to any rights that the convention itself grants. That is to say, a French citizen’s work in Poland or Morocco automatically enjoys the same protections that the work of a Polish or Moroccan citizen would.

''Other resources:''

* [http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works Wikipedia article on the Berne convention]
* [http://en.wikipedia.org/wiki/Berne_Convention_Implementation_Act_of_1988 Wikipedia article on the Berne convention Implementation Act of 1988]
* [http://www.law.cornell.edu/treaties/berne/overview.html Text of the Berne Convention]
* [http://www.copyrightservice.co.uk/copyright/p08_berne_convention UK resource on Berne Convention]
* [http://www.britannica.com/EBchecked/topic/62482/Berne-Convention Britannica article on the Convention]

==Bilateral Agreements==

'''A bilateral agreement is an agreement or treaty made directly between two countries.'''

This is in contrast to a “multilateral” agreement or international agreement such as the [[Glossary#Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works|Berne Convention]] or [[Glossary#TRIPS|TRIPS]]. While some bilateral agreements deal exclusively with copyright, copyright provisions may be inserted in to other, larger treaties, such as peace treaties or economic treaties.

In a bilateral agreement, an author from one country can claim copyright protections in the other country. Such agreements are often used to create copyright protections or provisions that are more stringent, or more generous, than would be possible in a broadly multinational agreement.

A Berne Convention member country may enter into bilateral agreements as long as the provisions of those agreements meet the minimum standards of the Berne Convention. For instance, although it is a member of the Berne Convention, the TRIPS Agreement, and other multilateral agreements, the United States has bilateral agreements with many different countries.

''Other resources''

* [http://www.bilaterals.org/rubrique.php3?id_rubrique=60 A website devoted to international bilateral intellectual property agreements]
* [http://www.eff.org/issues/ftaa EFF article on Free Trade Agreement of the Americas]
* [http://en.wikipedia.org/wiki/Bilateral_copyright_agreements_of_the_United_States Wikipedia article on US bilateral agreements]
* [http://gos.sbc.edu/e/esserman.html Text of speech about U.S & Vietnam bilateral agreement]

==Blanket license==

'''A blanket license allows a user to engage in certain uses of a large number of works under preset terms, without individual negotiation.'''

In the copyright context, such a license addresses all of a defined group of copyrighted works. It “covers” all of the relevant works like a blanket. In this way, it makes it easier to negotiate for the use of a work by making it possible to only make a deal once rather than entering into many separate agreements.

Usually, such licenses are granted and managed by collective rights management groups, which control access to thousands, or even millions, of copyrighted works.

''See also:''
* [[Glossary#Collective_Rights_Management_Organization.2FSociety|Collective Rights Management Organizations]]

''Other resources:''

* [http://www.ascap.com/licensing/termsdefined.html ASCAP definitions page]
* [http://www.aimp.org/forums/1,2/Blanket_license Assoc. of Independent Music Publishers definition of blanket license.]
* [http://www.copyright.com/ Webpage of US Copyright Clearance Center]
* [http://www.accesscopyright.ca/ Webpage of Canadian copyright clearance entity]
* [http://www.eff.org/wp/better-way-forward-voluntary-collective-licensing-music-file-sharing EFF page on on collective licensing for music]

==“Browsewrap”==

'''“Browsewrap” is a slang term for a contract governing access to or use of content on a website that does not require the website user to click on a button or otherwise take action to expressly manifest consent to the terms of the agreemen. Typically, the Internet user is considered to have agreed to the terms of the browsewrap agreement by accessing or “browsing” the website.'''

The terms of a browsewrap agreement governing access to a website are not always prominently displayed to the Internet user, and instead are often listed on a separate page that can only be accessed by clicking a link at the bottom of the screen. For this reason, some commentators question whether browsewrap agreements create enforceable contracts.

''See also:''
*[[Glossary#.E2.80.9CClickwrap.E2.80.9D_or_.22Click-on.22|Clickwrap]]

''Other Resources''

* [http://en.wikipedia.org/wiki/Browse_wrap Wikipedia entry on “Browsewrap”]
* [http://faculty.law.wayne.edu/Weinberg/law-in-cyberspace/2008-click_wrap.html US law school assignment on “wrap” licenses.]
* [http://www.cptech.org/ecom/ucita/licenses/browsewrap.html Examples of “browsewrap” licenses]
* [http://www.internetlibrary.com/topics/browse-wrap_agree.cfm Technical legal analysis of recent US case involving “browsewrap”]
* [http://technollama.blogspot.com/2007/09/browse-wrap-agreements-boosted-by-us.html Blog post analyzing a “browsewrap” case]
* [http://law.bepress.com/expresso/eps/1885/ Academic paper on “browsewrap” agreements]
* [http://www.zvulony.com/browse_wrap.html Canadian lawyer discusses “browsewrap” agreements]
* [http://works.bepress.com/cgi/viewcontent.cgi?article=1005&context=samster Academic paper discussing enforceability of “browsewrap” agreements]

==“Cease-and-desist” letter==

'''A letter sent to an alleged copyright infringer or the entity hosting allegedly infringing material, requesting that certain activities be ceased or that access to the allegedly infringing material be disabled.'''

With respect to Internet content, a cease and desist letter can take the form of a [[Glossary#.22Notice_and_Takedown.E2.80.9D|"takedown notice.”]]

'Under the U.S. copyright legislation known as the [[Glossary#DMCA|Digital Millenium Copyright Act]], a copyright holder who believes that a website is infringing the holder’s copyright, usually by hosting protected material without permission, can send a cease-and-desist letter to the entity hosting the material. The website will not be held liable if it immediately takes down the allegedly infringing work upon receipt of the takedown notice. There are procedures under which the person who posted the content can challenge a takedown notice, and have access to the restored.

''Other resources:''
* [http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act Wikipedia entry on DMCA]
* [http://www.free-legal-document.com/copyright-cease-and-desist.html A sample cease and desist letter]
* [http://www.chillingeffects.org/ Chilling Effects - a website devoted to the suppression or censorship of online speech]
* [http://www.techdirt.com/articles/20090726/0341395658.shtml Technology website article on “cease and desist” letters]
* [http://www.citmedialaw.org/blog/2009/inter-newspaper-cease-and-desist-letter-my-trip-buffet-wrong Citizen Media Law Project discussion of a particular cease and desist letter]
* [http://www.scribd.com/doc/2526821/Notice-of-Copyright-Infringement-and-Demand-to-Cease-and-Desist Scribd posting of various cease and desist letters]

==CISAC==

'''The International Confederation of Societies of Authors and Composers. CISAC is an organization composed of numerous national preforming rights societies.'''

According to [http://www.cisac.org its website], CISAC “works towards increased recognition and protection of creators’ rights. CISAC was founded in 1926 and is a non-governmental, non-profit organisation. Its headquarters are in Paris, with regional offices in Budapest, Buenos Aires, Johannesburg and Singapore. . . . . As of June 2008, CISAC numbers 225 authors’ societies from 118 countries and indirectly represents more than 2.5 million creators within all the artistic repertoires: music, drama, literature, audio-visual, graphic and visual arts.”

==“Clickwrap” or "Click-on"==

'''Clickwrap or Click-on is a license agreement for a website or software to which the user agrees by clicking on a button or link.'''

''Once the user clicks on the “I accept” or “I agree” button or link, thereby accepting the license, he or she can access the copyrighted material, and is bound by the terms of the licensing agreement. An “End-User Licensing Agreement” or “EULA” is a classic example of a “clickwrap” agreement. Since the user has no choice except to accept the licensing contract in order to access the content or program, in recent years, both courts and public opinion have begun to perceive these sorts of agreements as at least potentially oppressive.''

See also “shrinkwrap contract," “contract of adhesion”

'''Other Resources'''

* [http://en.wikipedia.org/wiki/Clickwrap Wikipedia article on “clickwrap”]
* [http://cyber.law.harvard.edu/metaschool/fisher/contract/cases/procd.htm Decision from seminal U.S. case on “clickwrap”, ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)]
* [http://www.akamarketing.com/click-wrap-shrink-wrap-contracts.html Article analyzing license types]
* [http://www.wired.com/politics/law/commentary/circuitcourt/2007/08/circuitcourt_0801 An article on why such licenses are coming under criticism]

==Choice of Laws==

'''The doctrine by which a court or other tribunal determines which country’s or jurisdiction’s laws will apply to a particular case or claim.'''

In any legal dispute that crosses political borders, whether domestic or international, there is a question of which laws will apply to the dispute. Such cross-border disputes are increasingly common in the Internet era. For instance, if an Internet user in Italy accesses a server in Sweden, and downloads a copy of a song by a U.S. recording artist, what laws should apply? Where should the trial be held?

A court hearing a suit like this will review the facts and decide what location makes the most sense for the trial, and will also decide which jurisdiction’s laws should apply. It is possible, when writing a contract, to specify what laws will govern in the event of a dispute. Occassionally, the laws of more than one country or jurisdiction might apply to different issues or claims in the same litigation.

''Other resources:''

* [http://en.wikipedia.org/wiki/Choice_of_law Wikipedia article on choice of law]
* [http://www.megalaw.com/top/conflictoflaws.php Site of “choice of laws” resources]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=958854 An academic article entitled "An Overview of Choice of Law, Jurisdiction and Foreign Judgment Enforcement in IP Disputes"]
* [http://www.scribd.com/doc/239477/Conflict-of-Laws-and-Choice-of-Law US law review article: "Conflict of Laws and Choice of Law"]

==Circumvention==

'''The act of avoiding, breaking or otherwise bypassing protections on digital content and technology.'''

Many digital or electronic resources, including online databases, software and more, come with built-in protections which in theory prevent illegal copying or impermissible uses. For example, DVDs may have a “region code” embedded in their data that prevents them from being played on DVD players from different parts of the world. Likewise, software may have added code, or encryption, which prevents it from being copied.

Although these technological barriers may arguably help to protect illegal copying or use of content, they can also get in the way of legitimate uses, such as playing a DVD on a Linux-based player, or making an archival copy of software. A user who wants to do these things will therefore have to circumvent, or break, the protection measures. However, this is illegal to do in many countries.

Notably, in the United States, Section 1201 of the Digital Millennium Copyright Act (1998) specifically forbids circumvention of technological protection measures, and even makes it illegal to sell or own anything that facilitates circumvention.

Laws like Section 1201 are controversial, because from one perspective, the protections a law like this facilitates are parallel to, and can last longer than, those offered by copyright. This arguably defeats the purpose of copyright law’s limited duration protections, violates copyright’s implicit bargain with the public and harms the public domain.

''See also:''

* [[Glossary#TPM_.E2.80.93_Technological_Protection_Measures|Technological Protection Measures]]
* [[Glossary#Right_of_Access|Right of Access]]
* [[Glossary#DMCA|DMCA]]

''Other resources:''

* [http://www.chillingeffects.org/anticircumvention/ Chilling Effects website on anticircumvention]
* [http://en.wikipedia.org/wiki/Anti-circumvention Wikipedia article on aticircumvention]
* [http://www.copyright.gov/1201/ U.S. Government's website on copyright]
* [http://www.sciencemag.org/cgi/content/abstract/293/5537/2028 Abstract of academic paper on anticircumvention]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=320961 An academic paper: “Anti-circumvention Misuse”]
* [http://blogs.law.harvard.edu/ugasser/2004/11/30/eu-anti-circumvention-laws/ Berkman Center resource on anticircumvention]
* [http://books.google.com/books?id=I9L6AAFtxH0C&pg=PA71&lpg=PA71&dq=anti-circumvention++EU&source=bl&ots=4unbi1jd9k&sig=oqoQK3Q1iqyqEdCpTzvkUxxZ1CE&hl=en&ei=rwp1SvGoJaSltgeRjeWWCQ&sa=X&oi=book_result&ct=result&resnum=6#v=onepage&q=anti-circumvention%20%20EU&f=false Google Book excerpt from EU Digital Copyright Law and the End-User]
* [http://ansuz.sooke.bc.ca/lawpoli/copyright/geistbook/2_04_Geist.pdf PDF of Canadian law professor Michael Geist's article “Anti-circumvention Legislation and Competition Policy”]
* [http://portal.acm.org/citation.cfm?id=1314276.1314284 Academic article: “Protecting fair use from digital rights management in China”]

==Copyright==

'''The set of rights granted to the author of a creative work that govern certain third party uses of the work.'''

These rights vary from country to country, although there is substantial international harmonization. They can typically be divided into economic rights and so-called “moral” rights.

With respect to the economic rights, they essentially represent a temporary monopoly over the creative work in question. In theory, this monopoly control is supposed to incentivize and reward creator, convincing them to create more. However, when the term of copyright ends, the work belongs to the public. The public’s gains from the creation of new works is thought to compensate for the inefficiencies that a monopoly represents. Economic rights are truly “property” in that they can be sold, assigned, inherited, divided up, and more.

With respect to “moral” rights, these belong to the author at the moment of creation, and cannot usually be transferred to anyone else.

''See also:''
* [[Glossary#Rights|Rights]]

''Other resources:''

* [http://www.copyright.gov/help/faq/faq-general.html#what US Government’s copyright website]
* [http://www.eucopyright.org/ EU’s copyright website]
* [http://ec.europa.eu/internal_market/copyright/index_en.htm EU internal markets copyright website]
* [http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/Home Canadian Intellectual Property Office website]
* [http://www.eucopyright.com/ Private website devoted to EU copyright law]
* [http://www.chinaiprlaw.com/english/laws/laws10.htm Copy of Chinese copyright law (English)]
* [http://www.cric.or.jp/cric_e/clj/index.html Copy of Japan’s copyright law (English)]

==Common Law==

'''A legal system based primarily on custom and the precedent of court decisions.'''

International legal systems tend to fall into one of three categories. Typically found within countries that have some historical connection with the United Kingdom or the former British Empire ,“common law” systems have a legal system based primarily on custom -- the precedent set by court decisions (“case law”) , in contrast to civil law systems or religious law systems.

''See also:''

* [[Glossary#Civil_Law|Civil Law]]
* [[Glossary#Religious_Legal_System|Religious Legal System]]

''Other resources:''

* [http://en.wikipedia.org/wiki/Common_law Wikipedia Article on the “common law”]
* [http://books.google.com/books?id=xXouAAAAIAAJ&dq=common+law&printsec=frontcover&source=bl&ots=8XbPPUS3Vd&sig=Oa5KoDXWXQdGWWri9ojJKCziJgc&hl=en&ei=Og91StPgC6WutgecttWWCQ&sa=X&oi=book_result&ct=result&resnum=3#v=onepage&q=&f=false Google Book, The Common Law by O.W. Holmes]
* [http://www.britannica.com/EBchecked/topic/128386/common-law Britannica article on the “common law”]

==Collective Rights Management Organization/Society==

'''An organization that controls the economic rights to a large number of creative works.'''

Also known as “collecting society” or a "copyright collective.”

A collective rights management organization or society most often deals with the rights to music and text. These groups lower the transaction costs of acquiring rights, and make it easy for would-be users of copyrighted works to get permission to do so. With a collective rights group, there need only be one set of negotiations and one fee paid, regardless of how many different works are used. Compare having to find and negotiate with the rights-holders for one hundred different songs with negotiating a single contract.

While groups like this undoubtedly solve a market problem, criticisms leveled against them include that they do not channel enough of the fees they receive to the actual artists, and that they seek to unfairly charge for uses over which they should not have control. Also, most notably, there are no collective rights groups managing the rights to sound recordings, which has led to much controversy over sampling.

Some collective rights management organizations include:

* [http://www.ascap.com/index.aspx ASCAP (United States)]
* [http://www.cisac.org/ CISAC (International)]
* [http://www.soundexchange.com/ SoundExchange (United States)]
* [http://www.harryfox.com/index.jsp Harry Fox Agency (United States)]
* [http://www.gesac.org GESAC (European Union)]
* [http://www.agicoa.org/ AGICOA website (International)]
* [http://www.biem.org/ BIEM (International)]
* [http://www.cepic.org/issues/2007/12/statement_collective_rights_management_2000 CEPIC (European Union)]
* [https://www.ige.ch/en/ IGE (Switzerland)]

''Other resources:''

* [http://www.eifl.net/cps/sections/services/eifl-ip/issues/handbook/collective-rights EIFL handbook on Collective rights]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=998328 Academic paper “Economic Functions of Collecting Societies - Collective Rights Management in the Light of Transaction Cost - and Information Economics”]
* [http://www.slideshare.net/paulkeller/creative-commons-collective-rights-management-presentation Dutch slide presentation on collective rights and Creative Commons]

==Compulsory License==

'''A license for use of copyrighted material that is mandated by law to be made available to everyone on an equal basis, usually in exchange for the payment of a set fee.'''

From the user’s perspective, it is a use for which the user does not need to seek permission. That is, the rights-holder may not refuse to grant the license to the user. The rights-holder still has the right to whatever revenue comes from the use, but has no rights of control.

Such licenses are always non-exclusive, since anyone can obtain one, and the fees that are paid to the rights-holder for them are usually set by statute. An example of a compulsory license is the so-called “mechanical license” under U.S. law for recording a new version of an existing song. Once a song has been released to the public, any other artist may record a version of it, and must pay a set fee (currently 2.5 cents per copy) to the rights-holder of that song.

This is not the only example of a compulsory license. There is a wide variety, whose nature and terms depend on the laws of the country in question, and the nature of the work. Compulsory licensing schemes exist for music, text, pharmaceuticals and more.

Recently, some copyright scholars and activists have proposed that the solution to the perceived problem of peer-to-peer filesharing will be some sort of compulsory licensing scheme. Filesharing would become legal, but artists would get paid, most likely out of a fund created by levying taxes on recordable media and associated technologies.

'''Other resources:'''

* [http://en.wikipedia.org/wiki/Compulsory_license Wikipedia article on compulsory licenses]
* [http://www.copyright.gov/circs/circ73.pdf US Government PDF on compulsory licenses]
* [http://www.cptech.org/ip/health/cl/ Website with list of resources on compulsory licensing (English)]
* [http://lawmeme.research.yale.edu/modules.php?name=News&file=print&sid=1241 Academic blog on compulsory licensing, with links to other posts]
* [http://www.wto.org/english/tratop_e/TRIPs_e/public_health_faq_e.htm WTO website]
* [http://www.cato.org/pubs/pas/pa508.pdf Robert Merges of the Cato Institute's analysis of compulsory licensing (English, US) academic, English]
* [http://jiplp.oxfordjournals.org/cgi/content/extract/2/5/324 Academic article “Compulsory licensing of IP rights: Has EC competition law reached a clear and rational analysis following the IMS judgment and the Microsoft decision?]

==Civil Law==

'''A legal system in which the law is based almost exclusively on legislation.'''

Such a system is as opposed to a common law system (based on tradition and court decisions) or a religious law system. Civil law regimes tend to be either inspired by or directly descended from Roman legal systems.

[http://en.wikipedia.org/wiki/Civil_law_%28legal_system%29 According to Wikipedia], “The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. It is the most prevalent and oldest surviving legal system in the world.”

Most of Europe and its former colonies have civil law-based legal systems, many of which hearken back to the [http://en.wikipedia.org/wiki/Code_Napoleon Napoleonic Code.]

This version of civil law is not to be confused with the sort that occurs in the civil law / criminal law distinction, in, among others, U.S. law.

''See also:''

* [[Glossary#Common_Law|Common Law]]
* [[Glossary#Religious_Legal_System|Religious Legal System]]

'''Other resources:'''

* [http://en.wikipedia.org/wiki/Civil_law_%28legal_system%29 Wikipedia Article on Civil Law]
* [http://www.britannica.com/EBchecked/topic/119262/civil-law Britannica article on Civil Law]
* [http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf PDF “A Primer on the Civil Law System” (academic)]
* [http://iuscivile.com/ List of resources on Civil Law]

==Commons==

'''This term refers to both the property that is owned by the community in general and the social regime for governing usage of that resource.'''

Some historical commons were truly open to all, but some were governed by rules that limited access. However, despite what might seem like a complete lack of any rules for governing the maintenance and usage of a commons, they were historically at the center of a complex web of social norms, and were well-monitored and maintained.

In the late 1960s a school of thought emerged whcih claimed that any real commons would quickly be over-exploited by an economically rational user, and that only private ownership could successfully manage societal resources.

Although this idea was quickly and widely accepted, it has been challenged in recent years for misstating the facts surrounding historical commons, as well as for overlooking the real problems that can arise from complex webs of private ownership, a problem [http://en.wikipedia.org/wiki/Michael_Heller_%28law_professor%29 Michael Heller] has called “the tragedy of the anti-commons.”

With respect to copyright, the commons is the enormous body of creative work to which all of society has access. Some is historical, some is contemporary. Everyone having access to them does not necessarily mean that no one holds copyright in the works that make up the commons. Some works are in the public domain, which means that not only can anyone access them and make use of them, but that no one has the right to restrict their usage in anyway. On the other hand, works existing under regimes such as Creative Commons, or the GPL license , as well as so-called “Open Access” journals, are examples of copyright-controlled information that is nonetheless part of the commons. For example, the works of Shakespeare, or a culture’s folktales, are part of the commons, as is any modern work which its author has dedicated to the public domain. Further, any work to which anyone has access, but for which the usages are restricted (usually with respect to keeping further uses of the work open to access) are still considered part of the commons.

''See also:''

* [[Glossary#Public_Domain|Public Domain]]

'''Other resources:'''

* [http://www.garretthardinsociety.org/articles/art_tragedy_of_the_commons.html Garret Hardin’s seminal 1968 article on “Tragedy of the Commons”]
* [http://en.wikipedia.org/wiki/Tragedy_of_the_commons Wikipedia article on "tragedy of the commons"]
* [http://www.youtube.com/watch?v=L8gAMFTAt2M Garrett Hardin interview]
* [http://www.flickr.com/commons?phpsessid=ea7b4da468f5935f24b65f41dbfc356f Flickr’s archive of photos in the commons. a public photography archive]
* [http://yupnet.org/boyle/ The Public Domain: Enclosing the Commons of the Mind by James Boyle]
* [http://www.gridlockeconomy.com/ Michael Heller’s website]
* [http://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/4445/Suber_Creating_041004.pdf?sequence=1 Academic article "Creating An Intellectual commons Through Open Access" by Peter Suber]

==Compilation==

'''A work that gathers together other previously existing copyrighted works or facts.'''

For example, an anthology of stories is a compilation. A recording that brought together songs from a wide variety of artists, such as a soundtrack album, would be a compilation. A database is also a compilation, of facts rather than creative works. In many jurisdictions, it is possible to hold a separate copyright in a compilation that is independent of any copyright in the works that make it up, as long as there is sufficient creativity in the selection and arrangement of the works. It is also possible to hold copyright in a database, based on the selection and arrangement of its factual elements, or alternatively, based on the effort that went into creating it.

''Other resources:''

* [http://www.copyright.gov/title17/92chap1.html#103 U.S. Law on compilations]
* [http://www.pddoc.com/copyright/compilation.htm US legal resources on compilations (English, US)]
* [http://www.bitlaw.com/copyright/database.html Legal website's page on databases (English, US)]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1299012 Australian law review article “Compilation Copyright: A Matter Calling for 'a Certain...Sobriety'"]
* [http://www.internetlibrary.com/topics/copyright_compilatio.cfm A list of compilation cases]
* [http://books.google.com/books?id=_s_e_YhjQsQC&pg=PA8&lpg=PA8&dq=compilation+copyright&source=bl&ots=RCOegs1pN-&sig=1PLYa0lf1nmycbNcJ5l20UWgqvo&hl=en&ei=LyJ2SqHBJOattgfhyt2WCQ&sa=X&oi=book_result&ct=result&resnum=6#v=onepage&q=compilation%20copyright&f=true Google Book excerpt: Kennneth Crews on compilations]
* [http://www.law.cornell.edu/copyright/cases/499_US_340.htm Text of ''Feist v Rural Telephone'', the seminal U.S. case on copyright in compilations]

==CONFU==

'''An abbreviation of the “Conference on Fair Use.”'''

The Conference on Fair Use was a series of meetings held in the United States in the mid to late 1990s. The purpose of CONFU was to have a meaningful discussion about “fair use” in an increasingly digital age, especially for academics and librarians. However, due in large part to fundamental disagreements among the various represented interest groups, the meetings failed to achieve any meaningful consensus.

''See also:''

*[[Glossary#.E2.80.9CFair_Use.E2.80.9D|Fair Use]]

''Other resources:''

* [http://www.uspto.gov/web/offices/dcom/olia/confu/report.htm Text of CONFU report ]
* [http://www.utsystem.edu/OGC/IntellectualProperty/confu.htm CONFU page from University of Texas’ copyright guidelines. (English, US)]
* [http://www.utsystem.edu/OGC/IntellectualProperty/imagguid.htm University of Texas guidelines about use of images]
* [http://www.arl.org/pp/ppcopyright/copyresources/confu-main.shtml Association of Research libraries resource on CONFU]

== Counterfeiting ==

'''Counterfeiting is the practice of making illegal copies of something and then attempting to pass the copies off as the real thing.'''

Almost anything can be copied, whether currency, material goods, or intellectual property. A counterfeiter hopes to take advantage of any positive reputation that the original enjoys without having to invest time and resources in creating it. Counterfeits damage the original by competing with it in the marketplace and by hurting the original’s reputation.

''Other resources:''

* [http://www.gonzagaip.org/blog/?p=8 IP Law organization analysis of French court ruling about counterfeiting]

==Course Pack==

'''A collection of documents put together by a teacher as a resource for students in a particular course or class.'''

Often, teachers with a specific curriculum in mind will wish to assemble their own materials rather than teach from a particular textbook. As a corollary to this, a teacher creating a curriculum drawing on a wide range of resources may wish to simply provide her students with only the materials they need, rather than requiring them to purchase many books, often at great cost, each of which will contain only a small piece of the curriculum, and the majority of the contents of which will be superfluous.

Of course, creating such a “course pack” necessitates the copying of the relevant works, implicating copyright law. Such copying may or may not fall under fair use, fair dealing, or other exceptions to copyright, depending on the circumstances and the jurisdiction. There have been two seminal cases in the United States dealing with course packs and copyright, both of which were resolved against the universities in question. It is noteworthy, though, that each of those cases involved a for-profit copying service.

''Other resources:''

* [http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-a.html Stanford Fair Use Center on course packs]
*[http://www.law.cornell.edu/copyright/cases/99_F3d_1381.htm Text of ''Princeton Univ. v. Michigan Document Servs.'', 99 F.3d 1381 (6th Cir. 1996).)]
* [http://www.bc.edu/bc_org/avp/cas/comm/free_speech/basicbooks.html Text of ''Basic Books Inc. v. Kinko's Graphics Corp.'', 758 F.Supp. 1522 (S.D. N.Y. 1991).)]
* [http://www.universityreaders.com/coursepack/ Professional course pack service]
* [http://everybodyslibraries.com/2008/04/16/coursepack-sharing-an-idea-whose-time-has-come/ Article on course packs.]
* [http://www.aaup.org/AAUP/pubsres/academe/2001/JF/Feat/nels.htm Article on course packs from American Assoc. of University Publishers]
* [http://distance.uaf.edu/archives/bookstore/subbookstore/coursepack-request.php A distance learning organization’s course pack request form]
* [http://www.mcgilldaily.com/article/2987-course-packs-could-go-online- Canadian article on using course packs online]

==Creative Commons==
''' “Creative Commons is a nonprofit corporation dedicated to making it easier for people to share and build upon the work of others, consistent with the rules of copyright.”'''

The above definition comes from the Creative Commons website. The organization was founded in 2001 by, among others, Harvard Professor Lawrence Lessig. Its goal was to provide simple, easy to understand and use copyright licenses that would allow creators to share their work with the world under terms they were comfortable with, so people can share, remix, and/or use them commercially, rather than the default terms offered by statute. Currently, Creative Commons offers 6 different licenses (in 50 countries and counting), whose features vary according to their permissiveness, and the uses they allow. The existence and terms of these special licenses are communicated to users by employing both the Creative Commons name and a series of icons that suggest the specific terms of the license.

A 2008 U.S. case, ''Jacobsen v. Katzer'', concerning later usage of software licensed under a license similar in style and intent to those offered by Creative Commons held that the license was a valid one, and that violating it terms constituted copyright infringement. The ruling greatly strengthened the enforceability of such agreements, helping their use to be perceived as more mainstream and legitimate.

''Other resources:''

* [http://creativecommons.org/ Creative Commons’ website]
* [http://cyberlaw.stanford.edu/packet/200810/breach-conditions-free-and-open-source-software-licenses-may-constitut Stanford Fair Use site on the ''Jacobsen v. Katzer'' case above]
* [http://www.klgates.com/newsstand/Detail.aspx?publication=4876 US law firm analyzes legal implications of ''Jacobsen v. Katzer'']

==Collective work==

'''A creative work that represents the creative input of more than one author.'''

When two or more people share the copyright in a work they are referred to as “joint authors” A movie is a classic example of a collective work, involving as it does the efforts of hundreds, if not thousands, of people. Nevertheless, the rights to collective works are usually held by only one, or at most a few, people. In the case of a movie, most of the people working on it are treated, by their contract, as employees, rather than as joint authors.

==Damages==

'''The money given to a copyright holder to compensate him or her for the harm caused by infringement.'''

Whenever the copyright in a work is infringed, there is at least the theoretical possibility that the legal holder of the copyright has been harmed in some way. If the rights-holder sues the infringer and wins, a court may award damages to the rights holder as way of compensating them for any damage that has been done. A rights-holder may seek actual or statutory monetary damages,depending on which she thinks are more valuable, or easier to determine, or an injunction compelling the defendant to cease the infringing activities.

====Actual Damages====

'''Actual damages represent the true cost of the harm suffered as a result of the infringement.'''

For example, if it were possible to determine exactly how many sales had been lost as a result of an act or acts of infringement, it would be possible to calculate actual damages. One thousand sales lost, at a profit of ten euros a sale = ten thousand euros damages. In practice, it can be very difficult to accurately calculate actual damages. When this is true, statutory damage provisions will frequently be used instead.

====Statutory Damages====

'''Statutory damages are damages where the amount of money a rights-holder may collect as damages is set by statutes.'''

Many legal regimes contain provisions for statutory damages. For example, in US law, 17 USCA 504(c) states that “Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.” For willful infringement, the amount can go up to $150,000!

''Other resources:''

* [http://www.minterellison.com/public/connect/Internet/Home/Legal+Insights/Newsletters/Previous+Newsletters/A-D-Damages+for+moral+rights+infringements Australian law firm’s analysis of case where artist is awarded damages for moral rights]
* [http://www.vlaa.org/assets/documents/VARA.pdf PDF of "An Artist’s Guide to VARA"]
* [http://en.wikipedia.org/wiki/Visual_Artists_Rights_Act Wikipedia article on VARA]
* [http://www.artslaw.org/vara.htm IP lawyer discusses VARA]
* [http://www.law.uconn.edu/homes/swilf/ip/statutes/vara.htm Text of VARA]
* [http://www.truefresco.org/2008/04/renowned-muralist-kent-twitche.html Article discussing an artist’s lawsuit over desecration]

==Database==

'''A database is a collection of data on a particular topic or topics, usually searchable, aggregated into one place.'''

Databases have an unusual relationship with copyright. The creator of a database can hold copyright in the database, but only in certain aspects of it, because the contents of a database are either facts, in which case they aren’t copyrightable at all, or they are non-factual, but therefore already under copyright, and controlled by different rights-holders. However, a lot of work can go into creating a database, and some jurisdictions recognize and protect that labor.

For example, in the U.S., the copyright in databases is colloquially known as “thin” ( as opposed to "thick") and is only in the selection and arrangement of the materials. On the other hand, in the European union, databases receive 15 years of protection to protect the investment of time, money and resources on the part of the database creator.

''See also:''

*[[Glossary#Compilation|Compilation]]

''Other resources:''

* [http://books.google.com/books?id=6bFgLrNke40C&pg=PA110&lpg=PA110&dq=assignment+of+copyright+EU&source=bl&ots=TfawTWnsyT&sig=So4Tf4U_ArceAf1AtsstC4y8Vmc&hl=en&ei=K0lySsLGK47oMZCiobEM&sa=X&oi=book_result&ct=result&resnum=5#v=onepage&q=&f=false Google Books Entry Legal Protection of Databases by Mark J. Davison]
* [http://ec.europa.eu/internal_market/copyright/prot-databases/prot-databases_en.htm EU’s webpage on database and their protection]
* [http://www.unc.edu/courses/2006spring/law/357c/001/projects/dougf/node5.html American law professor Lolly Gasaway’s paper on databases]
* [http://www.copyright.gov/docs/regstat092303.html Testimony to US government on database protection act]
* [http://www.copyright.gov/reports/dbase.html US Copyright Office’s report on legal protection for databases]
* [http://www.codata.org/codata/codata02/03invited/Tabuchi/Tabuchi_CODATA_ejournal.pdf PDF of WIPO report on effects of international legal protection for databases]

==Datamining==

'''The practice of sifting through large quantities of data, often in a database, to identify and make use of the patterns and details that emerge.'''

For example, consumer goods corporations mine the data generated by frequent shopper cards in order to better target advertisements. The company Google mines the data generated by the searches it performs to more accurately perform subsequent searches and to effectively target the advertisements that are alongside. Scientists mine the data generated by large-scale surveys of natural phenomena, whether astronomical observations or genetic codes.

Depending on the sort of data being mined, privacy issues can become a very real and important concern.

''Other resources:''

* [http://en.wikipedia.org/wiki/Data_mining Wikipedia article on data mining]
* [http://en.wikipedia.org/wiki/Cross_Industry_Standard_Process_for_Data_Mining Wikipedia article on data mining standards]
* [http://www.anderson.ucla.edu/faculty/jason.frand/teacher/technologies/palace/datamining.htm Article “What is Data mining?"]
* [http://www.dhs.gov/xlibrary/assets/privacy/privacy_rpt_datamining_200812.pdf PDF of US Legislature report on data mining]
* [http://www.allacademic.com/meta/p_mla_apa_research_citation/2/5/3/9/3/p253934_index.html Article “The Policy Tools of Securitization: Data Mining, EU Foreign and Interior Policies”]
* [http://ieeexplore.ieee.org/xpl/freeabs_all.jsp?arnumber=4053016 Report from the Sixth International Conference on Data Mining-Copyright]

==Derivative work==

'''A derivative work is one that adapts or modifies an existing work, drawing on that work for its substance and general material.'''

A film based on a novel is a derivative work of that novel. An action figure based on a character from an original film is a derivative work of the film.

A derivative work may or may not be copyrightable on its own, depending on how much original material it contains, and whether permissions were granted for the copied material. The U.S. copyright office says “To be copyrightable, a derivative work must be different enough from the original to be regarded as a new work or must contain a substantial amount of new material.”

For example, Alfred Bester’s novel'' The Stars My Destination ''is inspired by and modeled after Dumas’'' The Count of Monte Cristo. ''It is arguably a derivative work of that older novel. However, Bester's book clearly has sufficient original material to qualify for copyright protection on its own, and further, is original enough that it would not infringe copyright in Dumas’ book, were that book still protected by copyright. On the other hand, an independent screenwriter's new screenplay featuring the "Rocky" character made famous by Sylvester Stallone was found to be clearly a derivative work, in which no copyright could be had.

''See also: ''

* [[Glossary#.E2.80.9CFair_Use.E2.80.9D|Fair Use]]
* [[Glossary#Right_of_Adaptation|Right of Adaptation]]
* [[Glossary#Idea_.2F_Expression_Dichotomy|Idea / Expression Dichotomy]]

''Other resources:''

* [http://www.chillingeffects.org/derivative/ Chilling Effects webpage on derivative works]
* [http://www.chillingeffects.org/derivative/faq.cgi Chilling Effects FAQ on derivative works]
* [http://www.linuxjournal.com/article/6366 Computer industry article on derivative works]
* [http://www.copyright.gov/circs/circ14.pdf US Government circular on derivative works]
* [http://en.wikipedia.org/wiki/Derivative_work Wikipedia article on derivative works]
* [http://www.altlaw.org/v1/cases/1081598 Text of seminal US court decision on derivative works, ''Lee vs. A.R.T.'']

==DMCA==

'''The DMCA is the short name for the Digital Millennium Copyright Act.'''

The DMCA is copyright legislation that was passed in the United States in 1998. Its intended purposes were to bring U.S.copyright law more into harmony with international norms and to address many of the new concerns that digital technology and file-sharing raised. The DMCA contains the now-notorious anti-circumvention provisions, which made it illegal, even for a legitimate user, to avoid, break or disable any technological measures protecting content. It also created what are known as “safe harbors”, descriptions of behavior where Internet service providers could be certain they would not be legally liable for the actions of their users.

''See also:''

* [[Glossary#.E2.80.9CCease-and-desist.E2.80.9D_letter|"Cease and Desist" Letter]]
* [[Glossary#Circumvention|Circumvention]]
* [[Glossary#DRM|DRM]]
* [[Glossary#TPM_.E2.80.93_Technological_Protection_Measures|TPM]]
* [[Glossary#WIPO|WIPO]]

''Other resources:''

* [http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281: Text of the DMCA]
* [http://www.copyright.gov/legislation/dmca.pdf US Copyright Office’s explanation of the DMCA]
* [http://www.eff.org/issues/dmca EFF webpage on DMCA]
* [http://www.gseis.ucla.edu/iclp/wipo1.htm Text of WIPO treaty to which the DMCA responded]
* [http://www.chillingeffects.org/dmca512/faq.cgi Chilling Effects FAQs on DMCA]
* [http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act Wikipedia Article on DMCA]
* [http://news.cnet.com/2010-1071-825335.html News editorial on DMCA]
* [http://secondlife.com/corporate/dmca.php Second Life white paper on DMCA take-down notices]

==DRM==

'''DRM, or “Digital Rights Management” is a catch-all term for any technological measures, usually but not always software-based, that are put in place to protect copyrighted content.'''

DRM usually works by restricting access to the content in some way. DRM applies to all would-be users of the content, event those who have purchased it, or the right to access it, legally. Most DRM techniques are also easily circumvented by a technically adept and/or determined user. Therefore, DRM has the net effect of inconveniencing legitimate users, sometimes seriously, and being a minor inconvenience at best for professional criminal users. Additionally, certain forms of DRM can raise serious privacy concerns, as well as call into question the very idea of “ownership” of digital information.

For these reasons, DRM has been heavily criticized, and there may be a trend in the content industry away from its use. For example, after many complaints from users, iTunes and Amazon now offer DRM-free music downloads, and most of the major record labels have given up on DRM for digital music. However, the Recording Industry Of America, and the Motion Picture Industry of America have both said that they see DRM being part of their business models for the foreseeable future.

''Other resources:''

* [http://en.wikipedia.org/wiki/Digital_rights_management Wikipedia article on DRM]
* [http://mashable.com/2008/01/04/drm-officially-dead-as-even-sony-bmg-drops-it/ Article discussing DRM and its prospects]
* [http://news.cnet.com/8301-10784_3-9939189-7.html News article on DRM in music industry]
* [http://www.almaden.ibm.com/cs/people/hongxia-jin/DRM2009/ Webpage for international workshop on DRM]
* [http://www.eff.org/issues/drm EFF webpage on DRM]
* [http://en.wikipedia.org/wiki/Sony_BMG_CD_copy_protection_scandal Wikipedia article on Sony’s rootkit scandal]
* [http://www.npr.org/templates/story/story.php?storyId=102605547 US’s National Public Radio story on DRM]
* [http://www.techcrunch.com/2008/01/04/europe-wants-to-force-drm-interoperability/ Article on European DRM interoperability]

==Due diligence==

'''Due diligence refers to the level of effort someone must make in order to have fulfilled their legal duties in a particular situation.'''

It is the standard of care that person must exercise. In the copyright context, the term is most often encountered with respect to the necessary efforts a would-be user of content must make to locate the holder of the rights in a particular piece of content. This has become an important concept recently with respect to so-called ”orphan works” and the Google Book Search project.

''Other resources:''

* [http://en.wikipedia.org/wiki/Due_diligence Wikipedia article on due diligence]
* [http://www.panix.com/~checker/ccddc.htm An economist’s article on copyright reform]
* [http://www.legalmatch.com/law-library/article/due-diligence-for-copyright.html Short legal article on due diligence]
* [http://www.chinalawinsight.com/2009/02/articles/intellectual-property/copyright-due-diligence-investigations-in-china-legal-entity-work-or-occupational-work/ Chinese website’s analysis on due diligence in Chinese copyright law]
* [http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00245 Text of testimony to US Senate, concerning orphan works]
* [http://www.publicknowledge.org/issues/ow Public Knowledge’s page on orphan works]
* [http://www.copyright.gov/orphan/ US Copyright Office webpage on orphan works]

==Economic Rights==

'''The rights associated with copyright that allow the rights holder to exercise control over use of the work for economic benefit.'''

Economic rights include, among others, the right to make and sell copies, to perform the work publicly, and to prepare derivative works.

==EIFL==

'''A nonprofit organization that advocates for access to library resources across the world.'''

According to [http://www.eifl.net EIFL's website:]

''“EIFL is a not for profit organisation that supports and advocates for the wide availability of electronic resources by library users in transitional and developing countries.''

''"EIFL’s core activities are negotiating affordable subscriptions on a multi-country consortial basis, supporting national library consortia and maintaining a global knowledge sharing and capacity building network in related areas, such as open access publishing, intellectual property rights, open source software for libraries and the creation of institutional repositories of local content.

''The EIFL vision is to provide leadership and be a strong international advocate for expanded availability of electronic resources and to enhance the skills base of EIFL's library consortia, so that they are at the leading edge of developments. EIFL’s mission is to: (1) assist in the building of strong national consortia; (2) be the premier multi-country negotiator for securing affordable commercial electronic information services; (3) provide strong advocacy and support for the development and accessibility of local digital resources; (4) provide an effective central advisory and capacity building program in open access publishing, copyright and free and open source software for libraries (5) leverage multi-national expertise and resources to fulfill this mission; (6) provide top quality educational and consulting services; (7) be an advocate for the adoption and advancement of effective information distribution models; and (8) develop model partnerships with global funding agencies, foundations, consortial groups, and content providers.”''

==Exceptions and Limitations==

'''The exceptions and limitations to the otherwise exclusive rights of a copyright holder.'''

While copyright is usually conceptualized as the granting of a monopoly for a limited period of time, there are nearly always exceptions and limitations to the otherwise exclusive rights of a copyright holder. These can be statutory or customary, and represent uses for which a user need not get permission, or for which fees are preset, or something else that places limits on the monopoly of the copyright holder. These exceptions and limitations are often driven by public policy concerns.

“Fair use” in U.S. law and “fair dealing” in some other parts of the world, are classic examples of doctrines that place a limitation on the copyright holder’s monopoly. Any form of compulsory licensing would be another. Some exceptions are directed at particular classes of user, such as the exceptions pertaining to making copies for the disabled.

====Rule-based====

Rule-based exceptions are those whose qualities are described in specific detail, so that a particular use either does or does not qualify as an exception.

The Chaffee Amendment in U.S. Copyright law that exempts the making of copies for the disabled is an example of a rule-based exception.

====Guideline-based====

A guideline-based exception or limitation is one that sets forth one or more factors to consider when determining whether a particular use is fair, rather than hard and fast bright-line rules.

Any particular use must be evaluated on an individual basis to determine if it qualifies for the exception. For example, the “fair use” doctrine in U.S. law, which lists four non-exhaustive factors and partial list of suggested fair uses, is a guideline-based exception.

====Library exceptions====

Libraries are often treated as a special sub-class of users of copyrighted material because of the public nature of their mission and the strong public policy arguments in their favor. As such, they enjoy a unique set of exceptions and limits on copyright law in many countries. While the copyright law concerning libraries varies from country to country, there are some near-universal general exceptions for libraries.

====Preservation====

Libraries are frequently permitted to make copies of works in order to preserve them, or for archival purposes, without violating the copyright in those works.

This is in line with the traditional role of libraries as repositories of knowledge.

====Loaning====

Under certain circumstances, libraries are permitted to make copies of copyrighted works for the purpose of loaning them to patrons or to other libraries without violating the copyright in those works.

====Research====

Libraries are often permitted to make copies of copyrighted works for research purposes (whether their own or that of their patrons) without violating the copyright in those works.

''Other resources:''

* [http://en.wikipedia.org/wiki/Limitations_and_exceptions_to_copyright Wikipedia article on limitations and exceptions]
* [http://www.copyright.gov/1201/ US Copyright Office’s Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works]
* [http://www.resourceshelf.com/2009/05/27/statement-of-principles-on-copyright-exceptions-and-limitations-for-libraries-and-archives/ International Federation of Library Associations Statement of Principles on exceptions and limitations]
* [http://wiki.ocwconsortium.org/index.php?title=Copyright_Exceptions_and_Limitations Open Courseware Consortium’s wiki on exceptions and limitations]
* [http://www.ifrro.org/upload/documents/WIPO%20SCCR%20Joint%20Position%20_1029%202008_%20EN.pdf PDF of IFRRO's joint position on exceptions and limitations – statement to WIPO]
* [http://www.ifla.org/en/publications/statement-of-principles-on-copyright-exceptions-and-limitations-for-libraries-and-archi IFLA Statement of Principles on Copyright Exceptions and Limitations for Libraries and Archives]
* [http://lawprofessors.typepad.com/law_librarian_blog/2009/05/drm-and-copyright-exceptions-for-libraries-empirical-assessment-of-article-64-of-the-information-soc.html Law professors’ blog analysis “DRM and Copyright Exceptions for Libraries: Empirical Assessment of Article 6(4) of the Information Society Directive”]
* [http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192 WIPO study on exceptions]
* [http://www.eifl.net/cps/sections/news/press-area/2008-10-29 eIFL press release on exceptions and limitations]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1415012 Kenneth Crews study on limitations and exceptions]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1415012 Copyright Alliance Statement on exceptions and limitation]

==“Fair Use”==

'''A tenet of U.S. copyright law that describes the circumstances under which one can sometimes make use of protected works without first getting permission or paying the rights holder.'''

Fair use is a tenet of U.S. copyright law, found in 17 U.S.C. section 107. It is often referred to as a “safety valve” for free speech, and is one of the two aspects of U.S. copyright law that help to prevent copyright’s monopoly from interfering with freedom of speech, another important U.S. right enshrined in the U.S. Constitution. (The other aspect of U.S. copyright law that seeks to balance the copyright monopoly against the public's interest in free speech is the idea/expression dichotomy.)

Fair use is a set of guidelines, rather than a rule, and is evaluated on a case-by-case basis according to four non-exclusive factors. These are:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit 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;

The effect of the use upon the potential market for, or value of, the copyrighted work .

Because of its status as a "safety valve" for speech, fair use is often called upon or relied on by content users attempting to assert their rights under copyright law. However, because fair use is not clearly defined and can be hard to interpret, and because a copyright lawsuit can be extremely expensive, many users are scared or reluctant to rely on fair use when they use copyrighted works. This, in turn, has led to an effort by some groups to “reclaim fair use” for the public, and prevent what author Lewis Hyde has called “the third enclosure” of the common, that of the mind.

''Other resources:''
* [http://www.copyright.gov/fls/fl102.html US Copyright Office page on fair use]
* [http://www.law.cornell.edu/uscode/17/107.shtml Text of US law on fair use]
* [http://fairuse.stanford.edu/ Stanford University Libraries’ Fair Use page]
* [http://www.centerforsocialmedia.org/resources/fair_use/ Center for Social Media’s fair use section]
* [http://w2.eff.org/IP/eff_fair_use_faq.php EFF page on fair use]
* [http://cyber.law.harvard.edu/research/freedomtoteach Berkman Webpage for “Freedom To Teach” about fair use in teaching]
* [http://www.nytimes.com/2008/11/16/magazine/16hyde-t.html?partner=permalink&exprod=permalink NY Times article on Freedom to Teach founder Lewis Hyde]
* [http://en.wikipedia.org/wiki/Fair_use Wikipedia article on fair use]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=875384 Academic paper on fair use "Google Book Search: Fair Use, Fair Dealing and the Case for Intermediary Copying"]

==“Fair Dealing”==

'''The term used in the United Kingdom and other Commonwealth nations to describe the circumstances under which one can use copyrighted works without payments or permission.'''

Somewhat similar to the concept of “fair use” in the United States, “fair dealing” is found in many common law jurisdictions, such as Canada, Australia, New Zealand and others. Unlike fair use, which is a set of guidelines, fair dealing in most countries is limited specific categories of use. If a particular use falls into one of these categories, a court will ascertain whether, on balance, it should be considered "fair." It is usually considered somewhat more predictable but also somewhat less flexible than the concept of “fair use” employed in the United States.

''Other resources:''

*[http://www.copyright.org.au/pdf/acc/infosheets_pdf/g079.pdf Australian Copyright Council document on fair dealing]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=875384 Academic paper "Google Book Search: Fair Use, Fair Dealing and the Case for Intermediary Copying"]
* [http://www.economicexpert.com/a/Fair:dealing.htmlAustralian analysis of fair dealing]
*[http://www.ukoln.ac.uk/services/elib/papers/pa/fair/ UK fair dealing guidelines]
* [http://davidakin.blogware.com/blog/_archives/2009/7/31/4274099.html Canadian blog analysis of fair dealing]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1014404 Academic paper "Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use"]
* [http://www.myitlawyer.com/2009/fair-dealing-exceptions-in-uk-copyright-law/ Lawyer’s discussion of UK fair dealing]
* [http://en.wikipedia.org/wiki/Fair_dealing Wikipedia article on fair dealing]

==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.

''Other resources:''

* [http://en.wikipedia.org/wiki/First-sale_doctrine Wikipedia article on first sale]
* [http://en.wikipedia.org/wiki/Exhaustion_of_rights Wikipedia article on exhaustion of rights]
* [http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/Exhaustion%20of%20rights%20article.htm Canadian discussion of exhaustion of rights]
* [http://williampatry.blogspot.com/2005/05/is-there-hole-in-first-sale-doctrine.html William Patry blog entry on first sale and possible exceptions]
* [http://www.bc.edu/bc_org/avp/law/st_org/iptf/headlines/content/1998040801.html US law journal article discussing US Supreme Court decision on first sale]
* [http://cyber.law.harvard.edu/media/uploads/81/iTunesWhitePaper0604.pdf PDF of Berkman Center paper on first sale and iTunes]
* [http://www2.warwick.ac.uk/fac/soc/law/elj/eslj/issues/volume2/number2/papadopoulos.pdf Article on first sale doctrine in international intellectual property law]
* [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML EU directive referencing first sale]
* [http://books.google.com/books?id=LvRRvXBIi8MC&pg=PA50&lpg=PA50&dq=first+sale+doctrine+WIPO&source=bl&ots=V9cyaBflUR&sig=Z8H_gM2A8BAZEmLSDRC9g6BMZQc&hl=en&ei=gxt3SojMKIKntgfr4M2WCQ&sa=X&oi=book_result&ct=result&resnum=6#v=onepage&q=&f=false Google Book: WIPO guide on the licensing of copyright and related rights]

==Fixation==

'''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.

''Other resources:''

* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1010937 US law review article "To Fix, or Not to Fix: Copyright's Fixation Requirement and the Rights of Theatrical Collaborators"]
* [http://en.wikipedia.org/wiki/Canadian_copyright_law#Fixation Wikipedia article on Canadian fixation requirements]
* [http://www.copyright.gov/title17/92chap11.html Text of US law on fixation: 17 USCA 1101]
* [http://books.google.com/books?id=hI8kN17SrEsC&pg=PA169&lpg=PA169&dq=copyright+fixation&source=bl&ots=RF48eIxcrK&sig=36ACkVr6WqJbnnw5DDsHCvDoQwc&hl=en&ei=hR53SsipEpyntgfjodGWCQ&sa=X&oi=book_result&ct=result&resnum=9#v=onepage&q=copyright%20fixation&f=false Google Book excerpt: from Principles of Intellectual Property Law by Catherine Colston]
* [http://books.google.com/books?id=MIIOdtjZLCkC&pg=PA144&lpg=PA144&dq=copyright+fixation&source=bl&ots=Jthqw8uLaY&sig=rwyzzz8JlMC3wYAnQhHdmyKLE4Q&hl=en&ei=CCB3SqHJH6KltgeNzOGWCQ&sa=X&oi=book_result&ct=result&resnum=2#v=onepage&q=copyright%20fixation&f=false Google Book excerpt: Research Handbook on Future of EU Copyright by Estelle Derclaye]
* [http://www.gillhams.com/dictionary/368.cfm English law firm’s explanation of fixation]

==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.

''Other resources:''

* [http://www.trade.gov/fta/index.asp Webpage with list of resources on FTAs]
* [http://www.export.gov/fta/ US government website on FTAs]

==GNU-GPL license==

'''The GNU-GPL license is an open source software license.'''

One of the most well known symbols of the free software movement, which is sometimes called FOSS, for “Free open source software”. GNU is an open source operating system, upwardly compatible with Unix.

Richard Stallman started working on GNU at MIT in 1984, and founded the Free Software Foundation in 1985 to help his efforts. When GNU was incorporated with the Linux kernel, the combination became the GNU/Linux system, now found in various different software distributions.

GPL stands for “General Public License”. GPL licenses must contain what are referred to as the ”four freedoms”, which are:

* The freedom to run the program, for any purpose (freedom 0).

* The freedom to study how the program works, and change it to make it do what you wish (freedom 1). Access to the source code is a precondition for this.

* The freedom to redistribute copies so you can help your neighbor (freedom 2).

* The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this.

A program is free software if users have all of these freedoms.

''Other resources:''

* [http://www.gnu.org/copyleft/gpl.html GNU’s webpage on GPL licenses]
* [http://creativecommons.org/licenses/GPL/2.0/ Creative Commons webpage on GPL]
* [http://www.opensource.org/licenses/gpl-license.php Opensource’s page on GPL]
* [http://www.linux.org/info/gnu.html Linux.org’s page on GNU]
* [http://en.wikipedia.org/wiki/GNU_General_Public_License Wikipedia article on GNU/GPL]

==HADOPI==

'''A slang term for recent French legislation [2008-09] designed to regulate Internet usage in accordance with existing French copyright law.'''

“HADOPI” is an acronym referring to the name of the French government agency that would be created by the bill, the High Authority for Copyright Protection and Dissemination of Works on the Internet.

The HADOPI law was the subject of intense lobbying, both for and against it, and became notorious for its so-called “three strikes provision” and for the fact that in its original form, it provided that an Internet user could be sanctioned after having only been ''accused'' of copyright infringement. Although the law eventually passed, the French high court later stuck down this part of the bill as unconstitutional. Soon afterwards, techophile enthusiasts demonstrated that it would be technologically feasible to disguise Internet usage in a way that would call the laws basic effectiveness into question.

''Other resources:''

* [http://en.wikipedia.org/wiki/HADOPI_law Wikipedia article on HADOPI]
* [http://www.eff.org/deeplinks/2009/06/three-strikes-dead-in-france EFF discussion of French “three-strikes”]
* [http://fr.wikipedia.org/wiki/Loi_Cr%C3%A9ation_et_Internet French Wikipedia article on the HADOPI law]
* [http://www.betanews.com/article/French-Assembly-passes-three-strikes-HADOPI-law/1242172150 News article on HADOPI law]
* [http://torrentfreak.com/hackers-undermine-piracy-evidence-with-hadopi-router-090709/ Article on possible flaws in HADOPI’s provisions]
* [http://www.maitre-eolas.fr/post/2009/06/18/1452-hadopi-2-le-gouvernement-envisage-le-recours-a-l-ordonnance-penale French article on HADOPI]
* [http://www.flickr.com/photos/st3f4n/3522802951/ Flickr page discussing HADOPI]
* [http://www.ip-watch.org/weblog/2009/07/21/entangled-in-amendments-hadopi-2-hits-summer-break/ IP-Watch article on HADOPI]
* [http://wendy.seltzer.org/blog/archives/2009/06/12/hadopi-3-strikes-law-gets-its-own-strike.html Wendy Seltzer on HADOPI]
* [http://recordingindustryvspeople.blogspot.com/2009/06/french-3-strikes-law-hadopi-ruled.html US Lawyer specializing in music copyright and P2P filesharing discusses HADOPI]

==(legal) Formalities==

'''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.

''Other resources:''

* [http://www.bitlaw.com/copyright/formalities.html Article on formalities]
* [http://itlaw.wikia.com/wiki/Copyright_formalities Legal wiki’s page on formalities]
* [http://www.laboratorium.net/archive/2009/01/02/an_informal_rant_about_formalities US law professor James Grimmelmann discusses formalities]
* [http://nymusiccopyright.org/copyright/formalities Web page on formalities]
* [http://www.eric.ed.gov/ERICWebPortal/custom/portlets/recordDetails/detailmini.jsp?_nfpb=true&_&ERICExtSearch_SearchValue_0=ED291401&ERICExtSearch_SearchType_0=no&accno=ED291401 Cost benefit analysis of US copyright formalities]
* [http://cyberlaw.stanford.edu/node/5688 Stanford Center For Internet and Society’s discussion of Canadian formalities]

==Idea / Expression Dichotomy==

'''The concept that ideas cannot be copyrighted, but their particular expression can.'''

The idea / expression dichotomy is fundamental in copyright law. For example, the particular text of Stephenie Meyer’s “Twilight” series of vampire novels is protected by copyright, but the idea of a girl falling in love with a vampire cannot be protected.

While this may seem obvious or self-evident, the line between the two is not always so easy to find, and aggressive rights-holders continue to try to push the limits of to what they can claim copyright. For example, in the U.S. case Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., Inc., the holder of the rights to the intellectual property making up the James Bond character successfully sued an automobile company for an advertisement they had aired. MGM claimed that the ad’s content was sufficiently similar to or evocative of, James Bond, that it had infringed, although no actual copying took place.

'In U.S. law, idea / expression is usually held up, along with fair use, as a “safety valve” that prevents the monopolies granted by copyright from interfering with public policy, freedom of speech, and more.

Under certain circumstances, courts have held that there are a limited number of ways in which to express a particular idea (such as the rules for lotteries or sweepstakes) and that therefore, no copyright can be held in those materials. This is known as the “merger” doctrine.

''Other resources:''

* [http://en.wikipedia.org/wiki/Idea-expression_divide Wikipedia article on idea/expression]
* [http://www.edwardsamuels.com/copyright/beyond/articles/ideapt1-20.htm US law review article: "The Idea-Expression dichotomy in copyright law]
* [http://www.techdirt.com/articles/20090629/0317365399.shtml Technology blog article on idea/expression]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=418685 Canadian law review article "A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law"]
* [http://books.google.com/books?id=Vu5n-ARorC0C&pg=PA20&lpg=PA20&dq=idea+expression+dichotomy&source=bll&ots=PaIFoQa1-v&sig=zLHpSQLKGOgqxAR5vdqr78e1e1g&hl=en&ei=7Uh4SsSlBpyltgeWvN2WCQ&sa=X&oi=book_result&ct=result&resnum=11#v=onepage&q=idea%20expression%20di&f=false Google Book excerpt on idea/expression from "Copyright Exceptions: the digital divide" by Robert Burrell and Alison Coleman]
* [http://www2.bc.edu/~yen/FirstAmendPer.html US law review article "A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in A Work's Total Concept and Feel"]
* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=471&invol=539 Text of US Supreme court case discussing idea/expression - Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539]

==IFLA ==

'''International Federation of Library Associations and Institutions'''

According to the [http://ifla.org IFLA website], “The International Federation of Library Associations and Institutions (IFLA) is the leading international body representing the interests of library and information services and their users. It is the global voice of the library and information profession.”

==IFRRO==

'''The International Federation of Reproduction Rights Organisations'''

“The International Federation of Reproduction Rights Organisations (IFRRO) is an independent organisation established on the basis of the fundamental international copyright principles embodied in the Berne and Universal Copyright Conventions. Its purpose is to facilitate, on an international basis, the collective management of reproduction and other rights relevant to copyrighted works through the co-operation of national Reproduction Rights Organisations (RROs). Collective or centralised rights management is preferable where individual exercise of rights is impractical.

IFRRO through its members supports creators and publishers alike and provides internationally a common platform for them to foster the establishment of appropriate legal frameworks for the protection and use of their works.

IFRRO works to increase on an international basis the lawful use of text and image based copyright works and to eliminate unauthorised copying by promoting efficient Collective Management of rights through RROs to complement creators' and publishers' own activities.”

''Other resources:''

* [http://www.ifrro.org/ IFRRO website]

==Incentives==

'''The aspects of copyright law designed to motivate creators to create.'''

Copyright law grants to the rights-holder, for a limited time, a monopoly over uses of the copyrighted work. Since monopolies are usually considered inefficient, the justification for doing this is usually described as providing the necessary incentives to creators to get them to create. That is, without the incentive of being able to benefit economically by exploiting control of the work, why would an artist create? This is often called the economic theory of creator incentives, or something similar. The assumption is that there is a net gain for society. For example, the Copyright clause of the U.S. Constitution reads “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The incentive driven view of copyright and creation has come under some criticism for failing to take into account the many different motivations artists have for creating their work, some of which are not financial at all. Other critics point out that even if incentive theory is accurate, extremely long copyright terms do not increase the economic or monetary value of copyright, arguing against term extensions.

''Other resources:''

* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=876910 US law review article "The Internet, Creativity and Copyright Incentives"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1134035 US law review article "The Pope's Copyright? Aligning Incentives with Reality by Using Creative Motivation to Shape Copyright Protection"]
* [http://www.harvardlawreview.org/issues/122/april09/balganesh.shtml US law review article "Foreseeability and Copyright Incentives"]
* [http://madisonian.net/2007/08/09/ipsc-at-depaul-loren-on-copyrights-needless-incentives/ US legal academic blog entry discussing paper from #3 above]
* [http://www.paulschwartz.net/pdf/SchwartzFINAL.pdf US law review article "Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property"]
* [http://www.law.cornell.edu/supct/pdf/01-618P.ZD1 US Supreme court Justice Breyer's dissenting opinion in ''Eldred v. Ashcroft'']
* [http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/constitutionality.html Affidavit of Dean of the School of Information Management and Systems at the University of California, Berkeley, in ''Eldred v. Ashcroft'']
* [http://williampatry.blogspot.com/2008/05/forseeability-and-copyright-incentives.html One of many blog entries on incentives from renowned US copyright legal scholar William Patry]

==Intellectual Effort==

'''Literally, an effort of the mind, as opposed to a physical effort. The phrase is often synonymous with “creativity”.'''

In copyright law, this concept is important because not everything qualifies for copyright protection. Most importantly, simply having spent a lot of time and energy on something is not usually enough to qualify for copyright. However, in recent legislation, databases of facts have received protection solely by virtue of the effort that went into them.

Each jurisdiction has a different set of criteria as to what may receive copyright. The U.S. requires that the work be the result of creative input, but has a very low threshold for creativity. The U.S. also requires that the work be fixed in a tangible form. Italian law, for example, states things a little differently, and states that a work must involve an intellectual effort and possess creative character.

''See also:''

* [[Glossary#.E2.80.9CSweat_of_the_brow.E2.80.9D|"Sweat of the Brow"]]

==Infringement==

'''Violation without justification or excuse of one or more of the exclusive rights in a work granted by copyright law.'''

For example, if a copy of a book, song, or computer program is made, or a song or play performed without permission, the copyright in that work has been infringed. What sort of infringement has taken place depends on the level of knowledge and involvement of the infringer.

====Direct====

'''Direct infringement takes place when a person who is not the rightsholder performs or engages in one of the activities that the copyright holder has the exclusive right to perform.'''

Direct infringment is the most common kind of infringement, and takes place whenever a user violates any of the rights granted to a copyright holder.

“A plaintiff must meet two requirements to establish a prima facie case of copyright infringement: (1) ownership of the allegedly infringed material and (2) violation by the alleged infringer of at least one of the exclusive rights granted to copyright holders.” -- LGS Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150, 1156 (9th Cir. 1996)

For example, if a copy has been made without permission, that is direct infringement.

====Indirect /secondary====

'''These are two types of of infringement that take place in conjunction with direct infringement. '''

NOTE: There can be no indirect or secondary infringement without a concurrent act of direct infringement. An act qualifies as a particular type of infringement according to the knowledge, intent and abilities of the infringer.

====Contributory====

'''A contributory infringer has knowledge of the related direct infringement, i.e. that it is taking place; and must make a material contribution to it in some way.'''

Examples of contributory infringement would be a CD factory owner who knows that his machines are being used to make illegal copies of protected works, or someone who provides software tools for cracking encryption regimes.

====Vicarious====

''' A vicarious infringer is one who, while not deliberately encouraging or materially contributing to the direct infringement, has the right and ability to control or prevent infringement, and benefits from it, even if he or she does not realize the infringement is taking place.'''

Vicarious infringment is roughly akin to “you should have known infringement was taking place, and done something about it.

A club owner who hires performers who then play protected works without permission to do so, and without the owner’s knowledge, is vicariously infringing. The owner herself is not infringing, or helping the performer to do so, but she could make sure of the performer’s licensing, and she is indirectly profiting from the infringement, because of the revenues from patrons of the club. Another example would be someone who runs an outdoor market, renting stalls to vendors. If a particular vendor is selling infringing goods, the market owner is vicariously infringing. (For a classic example in US law, see Fonovisa Inc. v. Cherry Auction, Inc., 847 F.Supp. 1492 (E.D. Cal. 1994).

====Inducement====

'''The idea that someone might not only make the means of infringement possible, but might encourage others to infringe, even if the inducer is not profiting, either directly or indirectly.'''

Inducement was perhaps made most famous by the US case ''M.G.M. v Grokster''. In the Grokster case, the court found Grokster liable for indirect infringement, because it had actively induced others to directly infringed, regardless of any substantial non-infringing use of the Grokster technology. This was in contrast to the Sony v Betamax decision in the 1080’s which found video recorders non-infringing because they could be used in non-infringing ways, and because Sony had not encouraged infringing uses.

''Other resources:''

* [http://www.chillingeffects.org/piracy/faq.cgi Chilling Effects webpage on "piracy"]
* [http://www.chillingeffects.org/dmca512/question.cgi?QuestionID=268 chilling Effects FAQ on DMCA Section 512]
* [http://www.quizlaw.com/copyrights/what_is_contributory_infringem_1.php "Law for non-lawyers" website's page on contributory infringement]
* [http://www.quizlaw.com/copyrights/what_is_vicarious_infringement.php "Law for non-lawyers" website's page on vicarious infringement]
* [http://itlaw.wikia.com/wiki/Vicarious_copyright_infringement Technology wiki on contributory infringement]
* [http://cyberlaw.stanford.edu/packets002913.shtml Stanford Center for Internet & Society's page discussing a US case on indirect infringement]
* [http://www.benedict.com/Digital/Internet/Fonovisa/Fonovisa.aspx Copyright website's discussion of Fonovisa v Cherry Auction]
* [http://www.allacademic.com//meta/p_mla_apa_research_citation/1/7/1/7/6/pages171767/p171767-1.php Academic paper: "The Inducement Theory in Post-Grokster: Arista Records v. Flea World; UMG v. Bertelsmann"]
* [http://www.yarbroughlaw.com/Publications/pubs%20patent4%20indirect%20infringement%20of%20copyright.htm US lawyer's discussion of indirect infringement]
* [http://en.wikipedia.org/wiki/Contributory_copyright_infringement Wikipedia article on copyright infringement]
* [http://digital-law-online.info/lpdi1.0/treatise14.html US copyright website's page on infringement]
* [http://www.ipo.org/AM/Template.cfm?Section=Copyright&Template=/CM/ContentDisplay.cfm&ContentID=17825 Chinese law review article (in English): "Analysis & Solution for Indirect Infringing Liability of Developers of P2P File Sharing Software"]
* [http://www.becker-posner-blog.com/archives/2005/07/grokster_file_s.html US law professors' blog entry on infringement and ''Grokster'']
* [http://www.legallanguage.com/legal-articles/clarida008/ Article on Internet-based contributory infringement]
* [http://works.bepress.com/jamie_gregorian/1/ Academic paper: "Grokster, BitTorrent, Copyright Infringement, and Inducement: How Modus Operandi Can Provide a Functional Standard for Future File-Sharing Cases"]
* [http://www.cdt.org/files/pdfs/20061010streamcast.pdf Center for Democracy & Technology�s initial ''Grokster'' analysis]
* [http://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,_Ltd. Wikipedia article on ''MGM v Grokster'' case]
* [http://www.foley.com/publications/pub_detail.aspx?pubid=3398 US law firm article: "The Grokster Inducement Test For Secondary Copyright Infringement Liability"]

==Lex loci delicti==
'''Literally, "the law of the place of the wrongdoing"

The full term is '' lex loci delicti commissi.''

This concept comes up when discussing a tort or crime that takes place in multiple legal jurisdictions. In such a scenario, a court will have to decide which jurisdiction's laws apply. ''Lex loci delicti'' refers to the laws that apply in the place where the crime, copyright infringment for our purposes, was actually committed, rather than where the rightsholder lives, or where the right to the work were first received, etc.

''See also:''

* [[Glossary#Choice_of_Laws|Choice of Laws]]

''Other resources:''

*[http://en.wikipedia.org/wiki/Lex_loci_delicti_commissi Wikipedia article on ''Lex loci delicti'']

==License==

'''A license is a form of contract whereby a rights-holder grants permission to a person or entity to make use of a copyrighted work in some way.'''

Licenses can be quite specific, granting permission for only one particular kind of use, and for a limited time, or they can be comprehensive. They may be open source, or restrictive. They may or may not be transferable to others. Licenses have always been part of copyright law, but have come to greater prominence recently with their extensive use in conjunction with computer software.

====Model License====

A license that does not refer to any particular copyrighted work, or to specific parties, but is instead presented as an example of the license in general.

The model license can then be modified according to circumstances. For example, Creative Commons, which offers six different types of license, makes model versions of each available.

====Blanket License====

See [[Glossary#Blanket_license|Blanket License]].

====Compulsory License====

See [[Glossary#Compulsory_License|Compulsory License]].

====Institutional License====

'''A license granted to an institution, such as a library or school, rather than an individual.'''

An institutional license’s terms are predicated on the idea that the institution will be serving many different users, under a wide variety of circumstances, and that from a transaction costs perspective, it is far more efficient for all concerned to negotiate terms only once. For example, most, if not all, universities have institutional licensing agreements with the various collective management agencies for the performance of musical works. Many libraries, whether public or academic, have institutional subscriptions to commercial or academic databases, under which any patron of the library may access the database without having to negotiate personal access.

====Individual License====

'''An individual license is a license granted to a single person.'''

Individual licenses can be negotiated for any sort of copyrighted work, but are probably most often seen in the software context, where before using purchased software, a user must agree to the licensing terms.

====(non) Exclusive License====

'''An exclusive license is one granted to the holder only.'''

If a license is exclusive, it means that no other similar license will be granted. For example, a rights-holder in the United States might grant an exclusive license to someone in Germany to be the sole distributor of the copyrighted work in Germany, or vice versa. A non-exclusive license is just the opposite. A person with such a license knows that many others may have been granted the exact same rights. For example, when a person purchases software, he knows that he is not the only one who has eben granted permission to use that software.

'''Other Resources'''

* [http://www.bitlaw.com/copyright/license.html Legal information website's page on licenses]
* [http://creativecommons.org/about/licenses Creative Commons' licenses page]
* [http://en.wikipedia.org/wiki/Category:Copyright_licenses Wikipedia meta-page on copyright licenses]
* [http://www.copyright.gov/circs/circ75.pdf US Government's publication on licenses]
* [http://www.ivanhoffman.com/transfer3.html US lawyer discusses the right to transfer copyright licenses]
* [http://www.techdirt.com/articles/20090628/1626125387.shtml Technology blog's discussion of licensing controversy]
* [http://en.wikipedia.org/wiki/Compulsory_license Wikipedia page on compulsory licenses]
* [http://www.copyright.gov/circs/circ73.pdf US Government's circular on compulsory licensing for phonorecords]
* [http://www.cptech.org/blogs/cl4copyright/ Blog devoted to compulsory licenses]
* [http://www.artistshousemusic.org/videos/explaining+the+compulsory+license+clause Video with US lawyer explaining compulsory licenses]
* [http://muse.jhu.edu/about/subscriptions/license_review.html An example of institutional license agreement]
* [http://www.lib.uconn.edu/copyright/modelagreements.html University of Connecticut Libraries' webpage on licenses]
* [http://www.eff.org/wp/better-way-forward-voluntary-collective-licensing-music-file-sharing EFF white paper on voluntary collective licensing]
* [http://w2.eff.org/share/legal.php EFF page on P2P filesharing and licensing]
* [http://bandfoundry.draftlight.net/resources/copyright/license_types.php Music blog's discussions of licensing in music]
* [http://thepcweb.com/?p=358 Computer sciences blog page on software licenses]

==Material breach (of a contract)==

'''A violation of a contract serious enough that the person harmed may compel performance and collect damages, and/or terminate the contract.'''

A contract is fundamentally a list of terms to which the parties have agreed – things each party has agreed to do or not do. However, no contract, no matter how complex or carefully written, can foresee every possible eventuality. Therefore, it will sometimes happen that a party to a contract will violate one or more of the contract’s terms. Sometimes the breach will be deliberate, sometimes accidental, sometimes driven by circumstance. The question that arises, in the case of a breach, is what will be done about the violation.

Typically, minor violations of a contract mean only that the person harmed by the violation can collect only actual damages. If the breach is sufficiently immaterial these damages may well be zero.

However, substantial violations, which are also known as material breaches, are a different story. They are material breaches because the breached clauses fundamentally matter to the contract. Such breaches typically mean that the injured party can legally compel performance of the contract in addition to collecting damages. Of course, a particular contract may contain specific provisions for what will happen in the case of a material breach.

''Other resources:''

* [http://en.wikipedia.org/wiki/Breach_of_contract Wikipedia article on breach of contract]
* [http://www.constructionbusinessowner.com/topics/law/understand-material-breach-of-contract.html Construction industry website's page on material breach]
* [http://www.chicagobusinesslitigationlawyerblog.com/2009/05/material_breach_of_contract_in.html Chicago law firm's discussion of Illinois court's material breach ruling]
* [http://research.lawyers.com/glossary/material-breach.html Lawyer.com's definition of material breach]

==Monopoly==

'''A monopoly is exclusive control over a particular resource.'''

A copyright in a particular work can usefully be conceived of as a monopoly over that work and its uses, albeit for a limited time.

Economic theory typically sees most monopolies as inefficient uses of resources. These inefficiencies are harm to the public good. This harm is justified in copyright law by claiming that the incentives a monopoly provides to would-be creators balance it out. However, this view of things is being challenged more and more in recent years by critics who feel that copyright terms are too long, or that creators have motivations other than monetary reward.

''See also:''

* [[Glossary#Incentives|Incentives]]
* [[Glossary#Commons|Commons]]

''Other resources:''

* [http://www.againstmonopoly.org/index.php?perm=593056000000001200 "Against Monopolies" page on copyright's 'Catch-22']
* [http://www.open-spaces.com/article-v2n1-loren.php Law review article "The Purpose of Copyright"]
* [http://www.newswise.com/articles/view/549822/ Article discussing economists' criticism of copyright monopolies]
* [http://www.hackvan.com/pub/stig/etext/fair-use/mocking-the-monopoly-of-copyright.txt Article: "Mocking the Monopoly of Copyright"]
* [http://books.google.com/books?id=209GwCq-ATgC&pg=PA118&lpg=PA118&dq=monopoly+in+copyright+law&source=bl&ots=JYihE-5gK7&sig=Ws93FguDmc79hJ1AMk_i-IUySfM&hl=en&ei=kmd4SsiCI4extgfGrdmWCQ&sa=X&oi=book_result&ct=result&resnum=6#v=onepage&q=&f=false Google Books excerpt: The Economics of copyright – Wendy Gordon &Richard Watt]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1123575 Academic article: "Natural Monopolies in Antitrust, Patent, and Copyright Law: The Essential Facilities, Reverse Doctrine of Equivalents, and Originality Doctrines as Triggers for a Compulsory Licensing Remedy"]

==Moral Rights==

'''Broadly speaking, the set of rights in a work that give control over the existence or fate of a work, rather than over its economic exploitation.'''

Moral rights (a translation of the French concept “droit moral”) in a creative work are the corollary to the economic rights. They represent the rights in a work that are inherent in its status as a creative work and in its relationship with its creator. While they are statutorily reinforced, they typically are thought of as existing on their own. That is, they are much closer to being “natural” rights. Perhaps because of the nature of the rights, they are more often associated with visual works, such as painting or sculpture, than with “informational” works, such as texts.

The Berne Convention explicitly recognizes moral rights, but U.S. law does not officially recognize moral rights, which is an ongoing source of tension between U.S. law and that of other Berne Convention members. The U.S, maintains that its laws have sufficient provisions in place, such as the Visual Artists Rights Act, to accommodate moral rights.

Article 6bis (1) of the Berne convention reads:

“ (1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

The enumeration of moral rights varies from country to country, but they are most often listed as:

* The right of paternity -- to claim authorship (or disclaim it, in the event of unauthorized change).

* The right of integrity -- to approve of or object to any modification, distortion or change to the work.

* The right of withdrawal -- to remove a work from the public sphere at will.

* The right of release -- the right to control when a work is seen by the public.

''Other resources:''

* [http://cyber.law.harvard.edu/property/library/moralprimer.html Berkman Center webpage "Moral Rights Basics"]
* [http://en.wikipedia.org/wiki/Moral_rights_(copyright_law) Wikpedia page on Moral Rights]
* [http://www.rbs2.com/moral.htm Essay; "Moral Rights of Authors in the USA"]
* [http://www.copyright.gov/reports/exsum.html US Government document "Waiver of Moral Rights in Visual Artworks"]
* [http://www.vlaa.org/assets/documents/VARA.pdf PDF "Artists Guide to the Visual Artists Rights Act: understanding your (limited) rights"]
* [http://www.californialawreview.org/articles/against-moral-rights US law review article: "Against Moral Rights"]
* [http://www.ariadne.ac.uk/issue4/copyright/ Essay: Moral Rights and the electronic library"]
* [http://copyright.columbia.edu/node/50 MP3 file "The Five Exclusive Rights and Moral Rights"]
* [http://www.allacademic.com/meta/p_mla_apa_research_citation/1/8/5/3/2/p185328_index.html Academic paper: "Authorship and the Debate on Moral Rights in the Digital Environment"]
* [http://www.austlii.edu.au/au/journals/ILB/2001/11.html Australian law review article: "Berne, Baby, Berne: The Berne Convention, Moral Rights and Indigenous Peoples’ Cultural Rights"]
* [http://www.infotoday.com/IT/jan02/ardito.htm Legal column: "Moral Rights for Authors and Artists "]
* [http://www.megalaw.com/top/copyright/copyrightmoral.php Large list of links to resources on Moral Rights]

==Mortenson Center==

'''The Mortenson Center for International Library Programs'''

The Center was founded in 1991 at the University of Illinois at Urbana-Champagne.

According to [http://www.library.illinois.edu/mortenson/ its website], “The Mortenson Center and the Mortenson Distinguished Professorship seek to strengthen international ties among libraries and librarians, regardless of geographic location or access to technology.”

Individuals at the Mortenson Center participated in the initial testing of this curriculum.

==Neighboring Rights==

'''The rights of people who have participated in the creation of a copyrighted work, but who did not “write” it, and for a variety of reasons do not normally qualify for traditional forms of copyright.'''

Neighboring rights are copyrights that exist adjacent to more traditional author’s copyrights, and are granted to a few specific categories of person. The term most often refers to. Examples might include the sound engineers at a recording studio, the performers of a musical composition, or a broadcast organization.

Neighboring rights as such do not exist in all copyright law systems. Some jurisdictions subsume them within “copyright” in general without treating them as any different.

As just one example, the Rome Convention explicitly addresses the rights of performers and producers of sound recordings.

''See also:''

*[[Glossary#Rome_Convention|Rome Convention]]

''Other resources:''

* [http://www.wipo.int/export/sites/www/tk/en/laws/pdf/tanzania_copyright_1999.pdf PDF of 1999 Tanzanian Copyright and Neighboring Rights Act]
* [http://www.esa.int/esaMI/Intellectual_Property_Rights/SEMQPQL26WD_0.html European Space agency's page on copyright and neighboring rights]
* [http://en.wikipedia.org/wiki/Related_rights Wikipedia article on "related rights"]
* [http://www.sunsonline.org/trade/areas/intellec/12230096.htm 1996 article "WIPO: Copyright, Neighboring Rights in the Digital Age"]
* [http://archive.ifla.org/III/clm/p1/ilp.htm IFL document "Limitations and Exceptions to Copyright and Neighbouring Rights in the Digital Environment: An International Library Perspective]
* [http://www.ccaaa.org/copyright.shtml CCAAA statement on copyright and neighboring rights at the 13th session of the Standing Committee on Copyright and Related Rights, WIPO, Geneva, 21st-23rd November 2005]
* [http://portal.unesco.org/culture/en/files/30671/11443368003faq_en.pdf/faq_en.pdf UNESCO: "Basic Notions About Copyright And Neighbouring Rights"]

==Open Access==

'''Open access is a term describing an information resource that is open to all.'''

It also refers to a movement within the academic community dedicated to making scholarly research more accessible, rather than hidden behind a price or permission barriers.

“Open access” journals are not necessarily free, since they may charge a fee for maintenance costs, or to compensate authors, but typically an open access resource is free to all to read and use. Journals that ask for some payment are sometimes called “hybrid” access journals.

Harvard University recently adopted a policy where all of its faculty are permitted and encouraged to make their research available as open access. The U.S. National Institutes of Health has an open access policy requiring all research conducted with public funding to make its results open access, at least after a short interval of exclusivity.

''Other resources:''
* [http://www.doaj.org/ A directory of open access journals]
* [http://www.biomedcentral.com BioMed Central, publisher of 198 peer-reviewed open access journals]
* [http://www.earlham.edu/~peters/fos/overview.htm Professor Peter Suber's Open Access overview]
* [http://www.plos.org/index.php Website of the Public Library of Science]
* [http://www.soros.org/openaccess/read.shtml The Budapest Open Access Initiative]
* [http://www.soros.org/ Webpage of Open Society Institute]
* [http://www.arl.org/sparc/openaccess/ Scholarly Publishing and Academic Resources Coalition's open access page]
* [http://en.wikipedia.org/wiki/Open_access Wikipedia Article on Open Access]
* [http://www.oapen.org/ Website for Open Access Publishing in European Networks]
* [http://chronicle.com/article/Harvard-Faculty-Adopts/40447 Article about Harvard university adopting open access policy]
* [http://blogs.law.harvard.edu/mediaberkman/2009/03/03/radio-berkman-open-accessories/ MP3 of RadioBerkman interview with Peter Suber]
* [http://freegovinfo.info/node/2531 Discussion of proposed US law limiting open access to research]
* [http://publicaccess.nih.gov/ US National Institutes of Health Open Access homepage]
* [http://cyber.law.harvard.edu/interactive/events/2008/03/suber video of Professor Peter Suber's presentation "What Can Universities Do to Promote Open Access?"]

==“Opt-in”==

'''When a person must choose to do something, rather than it happening automatically.'''

Opt-in describes the default state any situation in which a user or participant has a choice of whether to do something or not, and where the default state is “not”. That is, a person must explicitly and consciously choose to take part. If no action is taken, the person will'' '''not''' ''participate, agree to terms, etc.

==“Opt-out”==

'''When a person must choose to not do something, otherwise it will happen automatically.'''

Opt-in describes the default state in any situation in which a user or participant has a choice of whether to do something or not, and the default state prior to any user involvement or active decision is “doing it”.

That is, unless the user consciously and deliberately decides to not agree, or participate, and chooses "no", the assumption going forward is that he or she agrees to the conditions proposed.

==Original expression==

'''Original expression refers to a creator’s original, copyrightable, creative work.'''

This is in contrast to any later derivative works, other later work that in some way incorporates the original work, or work that isn’t original at all. Expression that is not original cannot qualify for copyright.

''Other resources:''

* [http://www.buildingipvalue.com/08_AP/226-228SudathPerera.pdf Sri Lankan academic article: "A right to original expression: the role of copyright law in modern industry"]

==Orphan works==

'''Orphan works are creative works that are still under copyright protection, but for which it is either impossible or prohibitively difficult to identify the copyright holder.'''

This is most often a problem with photographs on the Internet, but arises with other types of works as well. Since the works are under copyright, permission is need to use them, but since the rights-holder cannot be found, no permission can be obtained. This puts these works into a sort of limbo. People want to make use of them, but usually won’t for fear of liability, and the works cannot pass into the public domain until the term of their copyright expires.

The settlement with the Author’s Guild in the Google Book Search lawsuit contains controversial provisions for orphan works, although it does not refer to them by that term. These terms are the subject of much debate and opposition worldwide.

Orphan works legislation has also been proposed at several different times in the U.S. Congress.

''Other resources:''

* [http://www.copyright.gov/orphan/ US Register of Copyright's article: "The Importance of Orphan Works Legislation"]
* [http://www.copyright.gov/docs/regstat031308.html US Register of Copyright's statement to US Congress on orphan works]
* [http://www.wired.com/threatlevel/2008/09/orphan-works-co/ technology magazine article "‘Orphan Works’ Copyright Law Dies Quiet Death"]
* [http://blog.librarylaw.com/librarylaw/2009/04/google-book-settlement-orphan-works-and-foreign-works.html LibraryLaw blog post: "Google Book Settlement, orphan works, and foreign works"]
* [http://news.cnet.com/8301-1023_3-10300887-93.html News article "Google pushes for new law on orphan books"]
* [http://www.researchinformation.info/news/news_story.php?news_id=487 Article "Copyright law prevents access to millions of 'orphan works'"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263361 US law review article: "Recent Developments in US Copyright Law: Part I - 'Orphan' Works"]
* [http://www.law.duke.edu/cspd/pdf/cspdproposal.pdf "Orphan Works Analysis and Proposal" from the Center for the Study of the Public Domain. Duke Law School]
* [http://www.nytimes.com/2008/05/20/opinion/20lessig.html Lawrence Lessig op-ed piece on orphan works]
* [http://www.mileproject.eu/orphanworks Metadata Image Library Exploitation website's page on orphan works (EU)]
* [http://www.cepic.org/issues/industry_issues_downloads/2008/10/situation_orphan_works_eu CEPIC report: "The Situation of Orphan Works In Europe"]
* [http://www.cenl.org/docs/Report_Digital_Preservation_Orphan_Works_Out-of-Print_Works_Selected_Implementation_Issues_June07.pdf Digital Libraries Expert Group's "Report on Digital Preservation, Orphan Works, and Out-of-Print Works. Selected Implementation Issues]
* [http://en.wikipedia.org/wiki/Orphan_works Wikipedia article on Orphan works]

=="Notice and Takedown”==

'''“Notice and takedown” refers to the particular sort of cease and desist letter associated with the U.S. Digital Millennium Copyright Act.'''

An Internet entity ( such as YouTube), upon receiving notice that it is hosting or otherwise making available a copyrighted work, can avoid liability for infringement by immediately taking down the copy of the work in question.

These notices are often criticized because their process strongly preferences rightsholders, who can effectively shut down any and all uses of their work, whether fair, permissible or not, since most posters will not bother to challenge a takedown notice with a counternotice.

====Counternotice ====

'''The response to a DMCA takedown notice.'''

A counternotice is the action taken by the person who originally posted the work that was taken down under a DMCA Section 512 “notice and takedown”. If the poster believes that the work was used legitimately, they can inform the host, who then are required to put it back up, and notify the alleged rightsholder that the copyright has been challenged.

The process for challenging takedowns with a counterntice is much more time-consuming and lengthy than that for a takedown itself, leading some to criticize the system as unfairly favoring alleged rights-holders, creating a legal avenue for private censorship of speech, and confronting Internet hosting sites with skewed incentives.

====“Putback”====

'''When a website that took content down in response to a DMCA takedown notice puts it back up after receiving a counternotice.'''

“Putback” refers to when an Internet content host, such as YouTube, having received a “notice and takedown” and then a “counternotice”, puts the possibly infringing content back online, pending a review of its copyright status.

''Other Resources''
* [http://www.chillingeffects.org/dmca512/faq.cgi#QID130 Chilling Effects FAQ on notice and takedown]
* [http://www.ivanhoffman.com/dmca.html US lawyer's article on DMCA notice and takedown]
* [http://digital-law-online.info/lpdi1.0/treatise34.html Digital Law Online: "Notice-and-Takedown Procedures"]
* [http://works.bepress.com/graeme_dinwoodie/41/ Academic paper: "A Reverse Notice and Takedown Regime To Enable Fair Uses of Technically Protected Copyrighted Works (with J. Reichman & P. Samuelson)"]
* [http://creativecommons.org/dmca/ Creative Commons page on DMCA notice and takedown]
* [http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act Wikipedia page on Online Copyright Infringement Liability Limitation Act]
* [http://www.copyright.gov/legislation/dmca.pdf US Government report on DMCA]
* [http://www4.law.cornell.edu/uscode/17/512.html Text of DMCA Section 512]
* [http://www.chillingeffects.org/dmca512/faq.cgi#QID132 Chilling Effects FAQ on counternotices]
* [http://www.chillingeffects.org/dmca/counter512.pdf PDF of a counternotice]
* [http://www.cs.cmu.edu/~dst/Terrorism/form-letter.html A "do it yourself" counternotice letter]
* [http://www.chillingeffects.org/responses/notice.cgi?NoticeID=360 Chilling Effects example of a counternotice]
* [http://www.google.com/support/youtube/bin/answer.py?hl=en&answer=59826 YouTube's help page on counternotices]
* [http://www.chillingeffects.org/dmca512/faq.cgi#QID132 Chilling Effects FAQ about putback procedures]
* [http://www.thelaw.com/guide/writing-a-dmca-counter-reply-put-back-notice/ Legal advice website's "Writing a DMCA Counter-Reply Put Back Notice"]
* [http://www.dyniam.com/marketing-blog/what-to-do-when-google-bans-your-site-because-of-a-bogus-dmca-take-down-notice/ Marketing website's page "What To Do When Google Bans Your Site Because Of A Bogus DMCA Take-Down Notice"]
* [http://www.bowdoin.edu/copyright/pdf/notice_692003.pdf PDf of Bowdoin College's DMCA procedures]
* [http://mylaw.usc.edu/documents/512Rep/ Academic paper: "Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act"]

==Perform==
'''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.

''Other resources:''

* [http://arstechnica.com/tech-policy/news/2009/07/telcos-and-reform-groups-slam-ascap-on-ringtone-grab.ars Technology blog article on ringtone controversy]
* [http://arstechnica.com/media/news/2009/06/ringing-up-cash-ascap-suing-att-for-ringtone-performance.ars Another technology blog article on ringtone controversy]
* [http://www.eff.org/press/archives/2009/07/02 EFF article on ringtone controversy]
* [http://www.ascap.com/press/2009/0622_Fighting_For_Your_Fair_Share.aspx ASCAP's page on its mission]
* [http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202432025253 Legal website's article "ASCAP Sues Over Ringtone 'Performance'"]
* [http://www.eff.org/deeplinks/2009/06/ascap-wants-be-paid- EFF legal analysis on ringtone controversy]
* [http://news.cnet.com/8301-1023_3-10161104-93.html News article "Book publishers object to Kindle's text-to-voice feature"]
* [http://news.cnet.com/amazon-retreats-on-kindles-text-to-speech-issue/ News article on Kindle Text-to-speech controversy]
* [http://www.crunchgear.com/2009/05/15/random-house-shuts-down-kindle-text-to-speech-for-their-titles/ Technology blog article "Random House shuts down Kindle text-to-speech for their titles"]
* [http://www.techflash.com/Disability_groups_demand_full_return_of_Kindles_text-to-speech_41583262.html Technology news article "Disability groups demand full return of Kindle's text-to-speech"]
* [http://online.wsj.com/article/SB123419309890963869.html Wall Street Journal article "New Kindle Audio Feature Causes a Stir"]

==Piracy==

'''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.

''Other resources''

* [http://www.chillingeffects.org/piracy/ Chilling Effects page on piracy]
* [http://www.chillingeffects.org/piracy/faq.cgi Chilling Effects FAQ on piracy]
* [http://www.copyright.gov/docs/regstat052505.html US Register of Copyright's statement to Congress on piracy]
* [http://www.publishersweekly.com/article/CA6672109.html?rssid=192 Article: "Copyright Industries Warn Against Piracy Threat"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=443160 Academic paper: "Four Common Misconceptions About Copyright Piracy"]
* [http://books.google.com/books?id=0iau-RT8eEsC&dq=copyright+piracy&printsec=frontcover&source=in&hl=en&ei=sZ94SuqnG8OMtgeMiNGWCQ&sa=X&oi=book_result&ct=result&resnum=18#v=onepage&q=copyright%20piracy&f=false Google Book: The Politics of Piracy: Intellectual property in contemporary China by Andrew Mertha]
* [http://www.copynot.com/ Anti-piracy website]
* [http://www.gnu.org/philosophy/words-to-avoid.html#Piracy GNU "Words to avoid" entry on piracy]
* [http://www.macobserver.com/tmo/article/iphone_app_piracy/ News article about "iPhone App Piracy"]
* [http://tim.oreilly.com/pub/a/p2p/2002/12/11/piracy.html Article: "Piracy is Progressive Taxation, and Other Thoughts on the Evolution of Online Distribution"]

==Plagiarism==

'''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.

''Other resources:''

* [http://www.pddoc.com/copyright/plagiarism.htm Legal information website's article: "Copyright and Plagiarism: What's the Difference?"]
* [http://www.transcendentalists.com/plagiarism_and_copyright.htm List of resources on plagiarism and copyright]
* [http://www.plagiarismchecker.com/plagiarism-vs-copyright.php PLagiarismChecker.com article: "Plagiarism and Copyright Infringement: Is Copying Illegal?"]
* [http://lists.ibiblio.org/pipermail/cc-community/2008-May/003685.html Discussion of plagiarism vs copyright]
* [http://www.plagiarismtoday.com/2005/10/06/copyright-infringement-plagiarism-and-fair-use/ Plagiarism Today article "Copyright Infringement, Plagiarism and Fair Use"]
* [http://www.historians.org/governance/pd/curriculum/plagiarism_defining.htm "Plagiarism: Curricular Materials for History Instructors"]
* [http://www.eucopyright.org/plagiarism/ EU Copyright.org article "Plagiarism Judo - a clever remedy?"]

==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.

''Other resources:''

* [http://www.librarycopyright.net/digitalslider/ "Is it protected by copyright?" -interactive tool for US law]
* [http://www.thepublicdomain.org/download/ Website for the book The Public Domain – Enclosing the Commons of the Mind by James Boyle]
* [http://www.copyright.gov/pr/pdomain.html US Copyright office statement on public domain works]
* [http://www.law.duke.edu/cspd/ Website for The Center for the Study of the Public Domain]
* [http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/ Stanford University Library system's page on Copyright and the Public Domain]
* [http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-a.html Stanford University Libraries "Welcome to the Public Domain"]
* [http://www.copyright.cornell.edu/resources/publicdomain.cfm Copyright Term and the Public Domain in the United States]
* [http://www.unc.edu/~unclng/public-d.htm A chart for determining when a work is in the public domain]
* [http://creativecommons.org/licenses/publicdomain/ Creative Commons webpage "Copyright-Only Dedication* (based on United States law) or Public Domain Certification"]
* [http://googleblog.blogspot.com/2005/11/preserving-public-domain-books.html Google Blog "Preserving public domain books"]
* [http://creativecommons.org/choose/publicdomain-2 Creative Commons page about identifying works already in the public domain]
* [http://librivox.org/public-domain/ Librivox web page "Copyright, Public Domain & LibriVox"]
* [http://www.eff.org/deeplinks/2009/07/eff-defends-wikipedi EFF legal analysis "EFF Defends Wikipedian's Right to the Public Domain"]
* [http://www.public-domain.org/ Public-Domain.org]
* [http://www.cpdl.org/wiki/index.php/Main_Page ChoralWiki, home of the Choral Public Domain Library]
* [http://en.wikipedia.org/wiki/Public_domain Wikipedia article on public domain]

==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.

''Other resources:''

* [http://www.bitlaw.com/copyright/scope.html#display BitLaw entry on "public display"]
* [http://www.utexas.edu/law/faculty/treese/Illinois.pdf Law review article: "The public display right: the Copyright Act's neglected solution to the controversy over RAM 'copes'"]
* [http://www.gseis.ucla.edu/iclp/oct96.html Article: "New Directions in Cyberspace Law"]
* [http://www.quizlaw.com/copyrights/what_is_the_right_of_public_di.php QuizLaw: "What is the right of public display?"]
* [http://www.arl.org/bm~doc/crs_rl33810.pdf PDF of US Congressional Research Service report "Internet Search Engines: Copyright’s “Fair Use” in Reproduction and Public Display Rights"]
* [http://itlaw.wikia.com/wiki/Public_display IT Law wiki entry on "public display"]

==Registration==

'''Formally obtaining copyright protections for a creative work by notifying the copyright office that it exists.'''

In U.S. copyright law, although a creative work receives copyright at the moment it is fixed in a tangible form, a copyright holder cannot file suit against an alleged infringer without officially registering the work with the copyright office.

The Berne Convention does not require registration, or any other official formalities.

''See also:''

* [[Glossary#.28legal.29_Formalities|Formalities]]

''Other resources:''

* [http://www.copyright.gov/register/ US Government's copyright website page on registration]
* [http://www.copyright.gov/eco/ US Government's copyright website online registration system]
* [http://www.copyright.gov/forms/ US Government's copyright website forms for off-line registration]
* [http://en.wikipedia.org/wiki/Copyright_registration Wikipedia article on copyright registration]
* [http://www.allbusiness.com/legal/intellectual-property/3931441-1.html Article on registration tool for user-generated content. (blogging, podcasting, etc.)]

==Relief==

'''What a court grants a rightsholder who has won an infringement lawsuit.'''

When a copyright lawsuit is resolved in favor of the rightsholder, a court will then grant them relief -- relief from the harm which they have suffered as a result of the infringement

====Injunctive====

'''Injunctive relief occurs when a court issues an injunction or a restraining order against an infringer.'''

The injunction might order that infringing content be removed from display, or that extant illegal copies be collected and destroyed, or whatever measures the court finds appropriate.

====Statutory====

'''Statutory relief is relief according whatever provisions for relief exist explicitly in statute.'''

These could include damage awards, criminal punishment or more.

==Religious Legal System==

'''A religious legal system is one where the law is based on the tenets of a particular religion.'''

Some religious legal systems exist on their own, while some exist in conjunction with another legal system.
Sharia, the system of religiously inspired Islamic law, is an example of a religious legal system, as are Hindu law and Halakha or Jewish law.

''See also:''

* [[Glossary#Common_Law|Common Law]]
* [[Glossary#Civil_Law|Civil Law]]

''Other resources:''

* [http://nyugloballaw.com/globalex/Religious_Legal_Systems.htm Academic paper "Religious Legal Systems: A Brief Guide to Research and Its Role in Comparative Law"]
* [http://en.wikipedia.org/wiki/Religious_law Wikipedia article on Religious law]
* [http://books.google.com/books?id=YsUMTA4MebwC&pg=PA49&lpg=PA49&dq=religious+legal+system&source=bl&ots=hELODC8c5N&sig=TPV22i8YViZXi1V8sGzxFGKxrg4&hl=en&ei=efB4SsK3BtWPtgeuptGWCQ&sa=X&oi=book_result&ct=result&resnum=4#v=onepage&q=religious%20legal%20system&f=false Google book: Religion,law and tradition By Andrew Huxley]

==Rights==

'''The rights a creator, copyright holder, the public or member of the public has as a result of copyright.'''

Copyright grants its holder various exclusive rights as part of its limited time monopoly. These rights can be usefully divided into economic rights and moral rights. In addition, as part of the copyright “bargain” the public gains certain rights in a copyrighted work as well. A list of these rights follows.

====Right of Integrity ====

The right to prevent the destruction or defacement of a creative work, or to object to any changes made to a creative work

Most often seen in the context of a painting or sculpture. For example, the rights to a piece of art on display.

====Right of Attribution ====

The right to be known as the creator of a particular creative work, to be given appropriate credit for one’s creations, and not to be blamed for things one did not create.

====Right of Disclosure ====

The right to determine when and if a work shall be made public.

====Right of Reproduction====

The right to make copies of a work.

====Right of Adaptation ====

The right to make derivative works.

====Right of Distribution ====

The right to sell, export or import a work or copies of a work.

====Right of Public Performance and Display====

The right to perform or display a work in public.

====Right of Withdrawal====

The right to withdraw a work from the public sphere.

Most commonly seen with artworks of which only a single copy exists but also sometimes seen as a right to purchase extant copies of a creative work at a reduced rate. For example, a book a writer no longer wants on the market.

====Right of Access====

The right of the public to have access to a published copyrighted work.

This particular right is actually not a right of the copyright holder, but rather of the public. In return for granting the creator the various copyrights, arguably at the expense of the public, the public gains access to the work.

''Other resources:''

* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=270861 Law review article: "Copyright in the EU and U.S.: What 'Access-Right'?]
* [http://www.reuters.com/article/pressRelease/idUS85594+01-May-2009+PRN20090501 Reuters article: "Right of Access in Germany Affects Only Serious Breaches of Copyright"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1199122 Working paper: "Access-Right: An Inquiry into the Problem of Digital Copyright Law "]
* [http://www.ip-watch.org/weblog/2009/04/24/eu-stakeholders-debate-copyright-access-and-rewarding-artists-in-digital-age/ IP Watch article: "EU Stakeholders Debate Copyright, Access And Artists In Digital Age "]
* [http://www.springerlink.com/content/facjg59bahexvj3g/ Book chapter: "Copyright Dilemma: Access Right as a Postmodern Symbol of Copyright Deconstruction?"]
* [http://informationr.net/ir/10-3/paper230.html Academic paper: "Intellectual property rights vs. public access rights: ethical aspects of the DeCSS decryption program"]
* [http://www.allacademic.com/meta/p_mla_apa_research_citation/2/5/5/2/5/p255259_index.html Academic paper: "Copyright and Access to Knowledge in a Human Rights Framework"]
* [http://cyberlaw.stanford.edu/node/5446 Stanford Center for Internet & Society article: "Access-Right and Copyright Presentation"]
* [http://books.google.com/books?id=pTIS8HWvNOgC&pg=PA69&lpg=PA69&dq=copyright+right+of+access&source=bl&ots=p7NjKS9Mh4&sig=_dt0GWcNN8yG8PkzcxWI-ovVSus&hl=en&ei=mfJ4Ss2aI8awtgfkttWWCQ&sa=X&oi=book_result&ct=result&resnum=9#v=onepage&q=&f=false Google Book: The nature of copyright by Lyman Ray Patterson & Stanley W. Lindberg]

==Rome Convention==

'''The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations'''

The Rome Convention is an international copyright agreement specifically addressing the rights of three groups. These groups are: performers, the producers of sound recordings, and the broadcasters of broadcasts, all of whom receive protection for their efforts, especially against acts to which they have not consented, like being recorded. First done in 1961, the convention attempts to offer specific protection for creative work that might otherwise not qualify for copyright, usually because of its transitory nature.

''See also:''

* [[Glossary#Neighboring_Rights|Neighboring Rights]]

''Other resources:''
* [http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html WIPO's text of convention]
* [http://www.wipo.int/treaties/en/ip/rome/ WIPO's Rome convention page]
* [http://www.wipo.int/treaties/en/ip/rome/summary_rome.html WIPO Summary of Rome Convention]
* [http://www.statemaster.com/encyclopedia/Rome-Convention Web encyclopedia entry on Rome convention]
* [http://www.unesco.org/search/search_en.html?cx=000136296116563084670:h14j45a1zaw&cof=FORID%3A9&ie=UTF-8&q=rome%20convention#1172 UNESCO resources on Rome Convention]
* [http://www.kipo.ke.wipo.net/clea/en/details.jsp?id=2031 WIPO page re: Rome convention for Guatemala]
* [http://ompi.ch/clea/en/details.jsp?id=2862 WIPO page regarding convention for Lithuania]
* [http://unesdoc.unesco.org/images/0013/001397/139776E.pdf PDF of 2005 Intergovernmental committee meeting on Rome Convention]
* [http://www.thefreelibrary.com/Rome+Convention+on+the+law+applicable+to+contractual+obligations...-a0149936237 News article about Rome Convention's force in Latvia]
* [http://en.wikipedia.org/wiki/Rome_Convention_for_the_Protection_of_Performers,_Producers_of_Phonograms_and_Broadcasting_Organisations Wikipedia article on Rome Convention]

==“Safe Harbors”==

'''A clearly defined set of circumstances or actions with respect to a particular law that shield the actor from liability.'''

A law with safe harbors says “These things will make you liable, but if you do “this”, then you are guaranteed to be safe". Safe harbors play an important role in areas of the law that are primarily governed by guidelines (which ultimately need to be interpreted by a court) , rather than rules. Since many people may lack the resources or legal sophistication to know or find out if their behavior is legal, a safe harbor provides certainty.

In the context of copyright law, although it is also used as a generic term for the limits of “safe” activity”, safe harbors are most often encountered with respect to Section 512 of the United States’ Digital Millennium Copyright Act, “Limitations on liability relating to material online”, which describes various ways in which Internet content providers can ensure that they will avoid liability for the behavior of their users and patrons. The most important of these is the “notice and takedown” proceeding.

Note: ''“Safe harbor” may also refer to a U.S. – EU agreement regarding the safety and privacy of personal data and databases.''

''See also:''

* [[Glossary#DMCA|DMCA]]
* [[Glossary#.22Notice_and_Takedown.E2.80.9D|Notice and Takedown]]
* [[Glossary#.E2.80.9CCease-and-desist.E2.80.9D_letter|Cease and Desist]]

''Other resources:''

* [http://images.chillingeffects.org/512.html A Chilling Effects page on the DMCA's Section 512]
* [http://www.chillingeffects.org/dmca512/ Another Chilling Effects page on the DMCA and Section 512]
* [http://www.chillingeffects.org/dmca512/faq.cgi#QID125 Chilling Effects FAQ on DMCA Section 512]
* [http://blogs.zdnet.com/micro-markets/?p=526 News article "Google YouTube copyright 'safe harbor' marriage"]
* [http://arstechnica.com/tech-policy/news/2009/01/judge-transcoding-doesnt-block-veoh-safe-harbor-defense.ars Technology website article: "Judge: transcoding doesn't block Veoh "safe harbor" defense"]
* [http://copywrite.org/2007/03/28/digital-millennium-copyright-act-section-512-safe-harbor-basics/ Copywrtie.org article "Digital Millennium Copyright Act section 512 safe harbor basics"]
* [http://arstechnica.com/tech-policy/news/2008/10/adecade-of-the-dmca-keep-the-safe-harbor-ditch-the-rest.ars Technology website article: "A decade of the DMCA: keep the Safe Harbor, ditch the rest"]
* [http://cyberlaw.stanford.edu/packet/200902/dmca-safe-harbor-service-providers-also-protects-non-storage-activitie Stanford Center for Internet and Society article: "DMCA Safe Harbor for Service Providers Also Protects Non-Storage Activities Designed to Facilitate Access to User-Stored Content "]
* [http://arstechnica.com/tech-policy/news/2007/10/riaa-shifts-legal-battle-to-a-new-front-sues-usenet-access-provider.ars Technology website article: "RIAA shifts legal battle to a new front, sues Usenet access provider"]
* [http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act U.S. – EU Safe Harbour resources Wikipedia article on "Online Copyright Infringement Liability Limitation Act"]
* [http://www.export.gov/safeharbor/eg_main_018236.asp Export.gov: "Safe Harbor Overview"]
* [http://www.ita.doc.gov/td/ecom/menu.html International Trade Administration Electronic Commerce Taskforce's safe harbor documents]
* [http://www.export.gov/safeharbor/ Export.gov's safe harbor page]
* [http://www.markem.com/references/policies/REF00156%20GBL%20European%20Union%20_EU_%20Safe%20Harbour%20Privacy%20Policy.pdf PDF of GBL European Union (EU) Safe Harbour Privacy Policy]
* [http://www.thefreelibrary.com/U.S.+companies+not+complying+with+E.U.+Safe+Harbor+rules-a0127433376 News article: "U.S. companies not complying with E.U. Safe Harbor rules."]
* [http://en.wikipedia.org/wiki/International_Safe_Harbor_Privacy_Principles Wikipedia article: "International Safe Harbor Privacy Principles"]
* [http://www.truste.com/pdf/EU_Data_Sheet.pdf EU-US Safe Harbor datasheet]
* [http://web.ita.doc.gov/safeharbor/shlist.nsf/webPages/safe+harbor+list US Department of Commerce list of safe harbor countries]
* [http://ec.europa.eu/justice_home/news/information_dossiers/personal_data_workshop/doc/Presentation_Greer.ppt Presentation: "The US Safe Harbor - Fact or Fiction? (2008)"]
* [http://en.wikipedia.org/wiki/Directive_95/46/EC_on_the_protection_of_personal_data Wikipedia article: "Data Protection Directive"]

==Statutory Exemption==

'''An exemption to copyright law protections explicitly written into statute.'''

While a particular behavior might be infringing under the general description of copyright, it is specifically exempted, usually for public policy reasons. For example, copying books without the express permission of the rights-holder is a violation of copyright. However, making copies expressly for the purpose of providing the disabled with access to the book is exempted by statute. Therefore, such behavior is not infringing.

Other statutory exemptions include copying for certain academic uses, especially instructional activities, copying for archival purposes or to deal with broken or obsolete technology, distance education, and more.

The Berne Convention places some limits on what statutory exemptions a country can have in its national legislation with its three-step test, saying “"[i]t shall be a matter for legislation in the countries of the Union to permit the reproduction of such [literary and artistic] 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".

''See also:''

* [[Glossary#Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works|Berne Convention]]

''Other resources:''

* [http://www.copyright.gov/fedreg/2006/71fr68472.html US regulation 37 CFR 201: "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies" final rule]
* [http://www.copyright.gov/1201/2008/responses/new-media-rights-40.pdf PDF of New Media Right's comments in response to the Notice of Inquiry of Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies]
* [http://www.mlanet.org/government/term_ext/replycomments.html#notice Medical Library Association's comments on notice provisions and the Berne Convention]
* [http://www.proquest.com/en-US/products/dissertations/copyright/Summary.html Academic paper: "International Copyright Summaries To Accompany: "Copyright Law & Graduate Research""]
* [http://www.legco.gov.hk/yr01-02/english/panels/ci/papers/ci0110cb1-743-2e.pdf PDF: Music Publishers Association of Hong Kong Submission in Response to Consultation Document Review of Certain Provisions of Hong Kong Copyright Ordinance 1997]

==Statute of Limitations==

'''A statute of limitations is a law that limits how long a person can wait to bring a legal action after a law is broken.'''

When the time limit specified by the statute of limitations has run out, or “tolled”, any future legal action is said to be "barred". For example, if the statute of limitations for a particular crime is 10 years, it is generally not possible to prosecute for that crime twelve years after it took place.

With respect to copyright law, the statute of limitations will describe how long after an act of infringement a rights-holder can wait to bring a suit. It will also limit the number of infringing acts for which the rights holder may seek damages. The length of the time limit varies between jurisdictions, and the exact nature of the limits varies as well.

For instance, in the United States, there is a three year statute of limitations for copyright violations, although this is a generic limit, not specific to copyright. This three year clock begins on the date of the most recent infringing act. However, some courts treat this as a “rolling” three years, meaning that a rights holder can only seek damages for acts within the three years prior to bringing suit. Other courts have held that even if the infringing began more than three years prior to the suit, if the infringement was ongoing, and at least one act was within the last three years, the rights holder may seek damages for all of the infringing acts.

''Other resources:''

* [http://williampatry.blogspot.com/2005/05/statute-of-limitations-part-one.html Copyright scholar William Patry's blog entry #1 on statute of limitations]
* [http://williampatry.blogspot.com/2005/05/statute-of-limitations-part-two.html Copyright scholar William Patry's blog entry #2 on statute of limitations]
* [http://williampatry.blogspot.com/2006/07/laches-and-statute-of-limitations.html Copyright scholar William Patry's blog entry on laches statute of limitations]
* [http://williampatry.blogspot.com/2007/12/statute-of-limitations-for-actions.html Copyright scholar William Patry's blog entry on statute of limitations for actions]
* [http://law.freeadvice.com/intellectual_property/copyright_law/copyright_statute_limitations.htm Advice webpage answer "From what point in time does the 3-year statute of limitations begin to run?"]
* [http://www.plagiarismtoday.com/2006/03/30/statute-of-limitations-in-copyright-law/ Plagiarism Today article: "Statute of Limitations in Copyright Law"]
* [http://www.photoattorney.com/2005/05/dont-sit-on-your-copyright.html Photo Attorney blog post: "Don't Sit On Your Copyright Infringement Claim!"]
* [http://www.exclusiverights.net/category/statute-of-limitations/ Copyright blog post on statute of limitations: "Third Circuit holds discovery rules govern claim accrual under the Copyright Act"]
* [http://www.chicagoiplitigation.com/tags/statute-of-limitations/ IP litigation blog post: "Copyright Office Printout Suggesting Registration Sufficient to Maintain Infringement Claim"]

==“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:''

* [[Glossary#Intellectual_Effort|Intellectual Effort]]

''Other resources:''

* [http://www.gutenberg.org/wiki/Gutenberg:No_Sweat_of_the_Brow_Copyright Project Gutenberg article: "Gutenberg: No Sweat of the Brow Copyright"]
* [http://itlaw.wikia.com/wiki/Sweat_of_the_brow IT Law wiki article on: "Sweat of the Brow"]
* [http://www.copyright.gov/docs/regstat092303.html Statement of David O. Carson General Counsel, United States Copyright Office on Database and Collections of Information Misappropriation Act of 2003"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=621184 Canadian law review article: "Sweat of the Brow, Creativity and Authorship: On Originality in Canadian Copyright Law "]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1398303 Law review article: "Doctrine of Sweat of the Brow"]
* [http://www.law.duke.edu/journals/DLTR/Articles/2001dltr0017.html Law review article: "The Future of Database Protection in U.S. Copyright Law]
* [http://www.iusmentis.com/databases/us/ Law and Technology website article: "Database protection in the USA"]
* [http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf PDF of EU Commission's DG Internal Market and Services Working Paper - First evaluation of Directive 96/9/EC on the legal protection of databases"]
* [http://www.concurringopinions.com/archives/2009/05/databases-and-australian-copyright-law.html Australian blog post: "Databases and Australian Copyright Law"]
* [http://www.asis.org/Bulletin/Dec-97/Copyrite.htm US Copyright Office: "Report on Legal Protection for Databases"]
* [http://en.wikipedia.org/wiki/Sweat_of_the_brow Wikipedia Article on "Sweat of the brow"]
* [http://en.wikipedia.org/wiki/Feist_Publications_v._Rural_Telephone_Service Wikipedia article on ''Feist v Rural Telephone'']

==Tangible Medium==

'''The physical form that a copyrighted work may take.'''

U.S copyright law requires that a creative work be fixed in a “tangible medium” before it qualifies for copyright, in contrast with the law of some other countries, which confer copyright at the moment of conception.

The tangibility requirement has led to some problems with protection for types of works that are not normally “fixed”, such as dance, stand-up comedy, live musical performances, and more. It has also been the subject of much discussion with respect to computers, computer displays and computer memory, in terms of when a program or a program’s output is “fixed” or not. Some of these issues have been addressed with targeted legislation.

''See also:''

* [[Glossary#fixation|Fixation]]

''Other resources:''

* [http://www.law.cornell.edu/uscode/17/102.html US Code Â§ 102. Subject matter of copyright: In general ]
* [http://www.ehow.com/video_2384683_tangible-medium-expression-music-copyright.html Tangible Medium of Expression: Music Copyright]
* [http://www.quizlaw.com/copyrights/what_is_a_tangible_medium.php Copyright Quizlaw: What is a tangible medium?]

==“Three-Strikes” Laws==
'''A 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:''

* [[Glossary#DMCA|DMCA]]
* [[Glossary#Glossary#.22Notice_and_Takedown.E2.80.9D]]

''Other resources:''

* [http://arstechnica.com/tech-policy/news/2009/02/kiwis-get-strict-copyright-three-strikes-law-at-months-end.ars Kiwis get strict copyright, three-strikes law at month's end]
* [http://arstechnica.com/tech-policy/news/2009/07/its-baack-french-3-strikes-law-gets-another-go-from-senate.ars French "3 strikes" law returns, now with judicial oversight!]
* [http://techgeist.net/2009/05/three-strikes-law-struck-down-in-european-parliament/ Three Strikes Law Struck Down In European Parliament]
* [http://freeculturenews.com/2009/07/15/australian-goverment-considering-3-strikes-law/ Australian Goverment Considering 3 Strikes Law]
* [http://www.michaelgeist.ca/content/view/2915/125/ France Says Canada Considering "Three Strikes and You're Out" ISP Policy]
* [http://torrentfreak.com/campaign-to-stop-file-sharers-being-guilty-upon-accusation-090105/ Campaign to Stop File-Sharers Being “Guilty Upon Accusation”]

==“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:''

* [[Glossary#Statutory_Exemption|Statutory Exemption]]

''Other resources:''

* [http://williampatry.blogspot.com/2008/04/fair-use-three-step-test-and-european.html Fair Use, the Three-Step Test, and the Counter-Reformation]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=299543 Academic article: "The Three-Step Test Frenzy - Why the TRIPS Panel Decision Might be Considered Per Incuriam"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=253867 Academic article: "Toward Supranational Copyright Law? The WTO Panel Decision and the 'Three-Step Test' for Copyright Exceptions"]
* [http://www.murdoch.edu.au/elaw/issues/v10n4/meyer104.html Academic article: "Exceptions to Intellectual Property Rights: Lessons from WTO-Trips Panels"]
* [http://law.bepress.com/cgi/viewcontent.cgi?article=1520&context=expresso Academic article: "Towards a New Core International Copyright Norm: The Reverse Three-Step Test"]
* [http://www.bakercyberlawcentre.org/unlocking-ip/2009/materials/Papers/3A_BAtkinson.pdf Academic article: "Three-step test and Australia: right to remuneration and the concept of sterile copyright"]
* [http://en.wikipedia.org/wiki/Berne_three-step_test Wikipedia: Berne Three Step Test]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=924174 Academic article: "Fixing the Three-Step Test"]

==TPM – Technological Protection Measures==

'''Technological protection measures, or “TPM” are security measures added to digital technology and content by content providers in order to restrict and control access, and exert greater control over the uses of the content they sell.'''

TPM is a broader term than “DRM", which really refers only to software-encoded protections. TPM is potentially both software and hardware based. Measures could include requiring passwords, filtering software, censor chips in computers, monitoring/ surveillance technology, (semi-)autonomous software tools and more. Regionally coded DVDs and DVD players are one example of a TPM. Other examples are Microsoft’s “Trusted Computing” and the “feature” of Apple’s iTunes that permits users to transfer a song to only five different computers.

While ostensibly aimed only at infringing users, TPM techniques often have negative impact on legitimate users, both with respect to legal uses and to privacy concerns. However, under at least U.S. law, it is illegal both to circumvent any technological protection measure and to possess anything that makes circumvention possible. The potentially sweeping nature of TPMs has led some to argue that TPMs make it possible for a rights-holder to not only enforce their copyright, but to exert control over a work that exceeds the limits of what copyright law permits.

''See also:''

* [[Glossary#DRM|DRM]]

''Other resources:''

* [http://www.eifl.net/cps/sections/services/eifl-ip/issues/handbook/technological-protection Technological Protection Measures - the "triple lock"]
* [http://www.ntia.doc.gov/ntiahome/ntiageneral/cipa2003/cipareport_08142003.htm Children’s Internet Protection Act]
* [http://www.wipo.int/enforcement/en/faq/technological/faq03.html How do technological protection measures work?]
* [http://www.eff.org/pages/technological-protection-measures-draft-ftaa Technological Protection Measures in the Draft FTAA]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1162263 Technological Protection Measures in EC and Italian Copyright Law]
* [http://www.aph.gov.au/house/committee/laca/protection/report.htm Inquiry into technological protection measures (TPM) exceptions]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=793504 Academic article: "Technological Protection Measures: Tilting at the Copyright Windmill" ]
* [http://www.vjolt.net/vol8/issue3/v8i3_a13-Baesler.pdf Academic article: "How Much Fair Use Do We Need in the “Digital World”?"]
* [http://slisweb.lis.wisc.edu/~libtpm/ LibTPM: Technological Protection Measures and Research Libraries]

==Transferability (of rights)==

'''The feature of copyrights that makes it possible for one rightsholder to transfer ownership of the rights to another person.'''

One of the basic characteristics of property is that it can be transferred to others, whether by sale, gift, or something else. Copyrights are no different. While a creator initially holds copyright in his or her creative work, those rights can be transferred to another person or entity, who can then transfer them again, etc. For example, recording artists frequently transfer the copyright in their songs to a records company. Michael Jackson famously owned the rights to all of the Beatles’ music.

The various rights that “copyright” subsumes can be transferred as a block, but more often are transferred or sold one at a time, some times to different people.

==TRIPS ==

'''The Agreement on Trade Related Aspects of Intellectual Property Rights'''

TRIPS is an international agreement on property rights that came into effect in 1995.

The World Trade Organization’s website describes TRIPS as “to date, the most comprehensive multilateral agreement on intellectual property.” and states that:

“The areas of intellectual property that it covers are: copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations); trademarks including service marks; geographical indications including appellations of origin; industrial designs; patents including the protection of new varieties of plants; the layout-designs of integrated circuits; and undisclosed information including trade secrets and test data.”

The three main features of TRIPS are its sections on standards, enforcement, and dispute settlement. In a way, it is an umbrella agreement, since it requires that its participants agree to and uphold the tenets of several other agreements, treaties and conventions. These are the main conventions of the WIPO, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic in their most recent versions.

''See also:''

* [[Glossary#Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works|Berne Convention]]
* [[Glossary#WIPO|WIPO]]

''Other resources:''

* [http://www.wto.org/english/tratop_E/trips_e/intel2_e.htm Overview: the TRIPS Agreement]
* [http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm Agreement on Trade-Related Aspects of Intellectual Property Rights]
* [http://www.cid.harvard.edu/cidtrade/issues/ipr.html Intellectual Property Summary]
* [http://www.osec.doc.gov/ogc/occic/ipr.htm Overview of Intellectual Property Rights and the TRIPs Agreement]
* [http://www.wpro.who.int/NR/rdonlyres/F9F3BBE1-8663-4DF9-B08A-53B2426FD50C/0/ART_Newsletter_Issue_8.pdf HIV/AIDS Intellectual Property Review]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1400527 Academic article: "Trips, Intellectual Property Law Reform in Indonesia: Why Injunctions Aren't Stopping Piracy"]
* [http://www.wipo.int/about-ip/en/studies/pdf/ssa_lesser_trips.pdf WIPO report: "The effects of TRIPS Mandated Intellectual Property Rights on Economic Activities in Developing Countries]
* [http://www.wiggin.com/db30/cgi-bin/pubs/carlsonQLR01.pdf Academic article: "Trapped by TRIPS? Intellectual property rights, the cold war, and the Cuban embargo revisited"]
* [http://archive.ifla.org/III/clm/p1/tt-e.htm IFLA Guide for Libraries and Librarians to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)]

==UNESCO==

'''The United Nations Educational, Scientific and Cultural Organization'''

UNESCO was founded in 1945. According to [http://unesco.org its website] it “ functions as a laboratory of ideas and a standard-setter to forge universal agreements on emerging ethical issues.

The Universal Copyright Convention of 1952 was adopted under UNESCO’s auspices.

'''Other Resources'''

* [http://portal.unesco.org/en/ev.php-URL_ID=29008&URL_DO=DO_TOPIC&URL_SECTION=201.html UNESCO homepage]
* [http://portal.unesco.org/culture/en/ev.php-URL_ID=5125&URL_DO=DO_TOPIC&URL_SECTION=201.html UNESCO World Book and Copyright Day]
* [http://unesdoc.unesco.org/ulis/copyright/search.htm UNESCO copyright bulletin archives]
* [http://www.accu.or.jp/appreb/10copyr/pdf_ws0509/2_2_unesco.pdf Why is UNESCO in copyright?]
* [http://www.unesco-ci.org/cgi-bin/portals/libraries/page.cgi?g=Reference%2FCopyright%2Findex.html;d=1 UNESCO’s library resources]
* [http://oerwiki.iiep-unesco.org/index.php?title=UNESCO_OER_Toolkit/Copyright_and_Open_Content_Licensing UNESCO OER Toolkit/Copyright and Open Content Licensing ]
* [http://www.unescap.org/tid/projects/iprt_s5_urtnasan.pdf UNESCO’s Copyright Activities and Mongolia]
* [http://ec.europa.eu/libraries/doc/50ans/Copyright_innovation_and_UNESCO_Library.ppt Copyright Innovation and UNESCO Powerpoint Presentation]
* [http://ghanaculture.gov.gh/index1.php?linkid=65&archiveid=962&page=1&adate=26/05/2007 UNESCO / Ghana Copyright Workshop]
* [http://merlin.obs.coe.int/iris/1996/7/article1.en.html UNESCO Copyright and Communication in the Information Society]

==United Kingdom’s Chartered Institute of Library and Information Professionals (CILIP)==

'''CILIP: the Chartered Institute of Library and Information Professionals is the leading professional body for librarians, information specialists and knowledge managers. '''

According to [http://www.cilip.org.uk/Pages/default.aspx its website], "CILIP forms a community of around 36,000 people engaged in library and information work, of whom approximately 21,000 are CILIP members and about 15,000 are regular customers of CILIP Enterprises. CILIP speaks out on behalf of the profession to the media, government and decision makers. CILIP provides practical support for members throughout their entire careers, helpingthem with their academic education, professional qualifications, job hunting and continuing professional development.”

==Universal Copyright Convention (or UCC)==

'''The UCC, which came into effect in 1955, represents an alternative to the Berne Convention.'''

It was designed by UNESCO to provide a form of multilateral copyright protection for countries what wanted such a thing, but which disagreed with some or all of the Berne Convention. These countries include the United States and Russia as well as much of Latin America and the former USSR.

Its opening section states:

"The Contracting States, Moved by the desire to ensure in all countries copyright protection of literary, scientific and artistic works, Convinced that a system of copyright protection appropriate to all nations of the world and expressed in a universal convention, additional to, and without impairing international systems already in force, will, ensure respect for the rights of the individual and encourage the development of literature, the sciences and the arts, Persuaded that such a universal copyright system will facilitate a wider dissemination of works of the human mind and increase international under-standing, Have resolved to revise the Universal Copyright Convention as signed at Geneva on 6 September 1952 (hereinafter called `the 1952 Convention')"

All Berne Convention participants are also UCC members. Additionally, the UCC’s Article 17 explicitly states that none of its provisions are intended to conflict with the Berne Convention, making the UCC of limited importance today, since most countries are Berne members.

''See also:''

* [[Glossary#UNESCO|UNESCO]]

'''Other Resources'''

* [http://portal.unesco.org/culture/en/ev.php-URL_ID=1814&URL_DO=DO_TOPIC&URL_SECTION=201.html UNESCO website's text of Universal Copyright Convention]
* [http://www.copyrightservice.co.uk/copyright/p14_universal_copyright_convention UK copyright Serivce fact sheet on Universal Copyright Convention]
* [http://www.britannica.com/EBchecked/topic/618051/Universal-Copyright-Convention Britannica article on Universal Copyright Convention]
* [http://www.duhaime.org/LegalResources/IntellectualProperty/LawArticle-591/Universal-Copyright-Convention.aspx Legal information website on Universal Copyright Convention]
* [http://manybooks.net/titles/unitednationsother07Universal_Copyright_Convention.html Downloadable text of universal Copyright Convention]
* [http://unesdoc.unesco.org/images/0004/000444/044475Eb.pdf PDF of the draft report of the subcommitee of the intergovernmental committee of the Universal Copyright Convention]
* [http://books.google.com/books?id=OCGsutgMdPIC&pg=PA151&lpg=PA151&dq=universal+copyright+convention+analysis&source=bl&ots=JROw-agDOn&sig=bCuUXetLwC41KNJHUEzUa9cLe50&hl=en&ei=ONx5SumuF4m4M8fRmaMO&sa=X&oi=book_result&ct=result&resnum=5#v=onepage&q=&f=false Googgle Book excerpt: Intellectual property licensing By Richard Raysman, Edward A. Pisacreta, Kenneth A. Adler, Seth H. Ostrow]
* [http://en.wikipedia.org/wiki/Universal_Copyright_Convention Wikipedia article on Universal Copyright Convention]

==WIPO==

'''WIPO is the World Intellectual Property Organization.'''

According to [http://wipo.int its website], WIPO "is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest. WIPO was established by the WIPO Convention in 1967 with a mandate from its Member States to promote the protection of IP throughout the world through cooperation among states and in collaboration with other international organizations. Its headquarters are in Geneva, Switzerland. The Director General is Francis Gurry. WIPO administers 24 different treaties, including the WIPO Convention, thirteen of which are intellectual property treaties.

''Other resources:''

* [http://www.wipo.int/portal/index.html.en WIPO homepage]
* [http://www.wipo.int/treaties/en/ WIO treaties page]
* [http://www.wipo.int/treaties/en/convention/ The page for the WIPO Convention]
* [http://www.wipo.int/export/sites/www/treaties/en/documents/pdf/wipo_convention.pdf PDF with list of "Contracting parties of treaties adminstered by WIPO"]
* [http://www.wipo.int/amc/en/index.html WIPO Arbitration and Mediation Center]
* [http://www.copyright.gov/wipo/treaty1.html WIPO Copyright Treaty adopted by the Diplomatic Conference on December 20, 1996]
* [http://books.google.com/books?id=LiI0BXyPlF8C&dq=WIPO&printsec=frontcover&source=bl&ots=NaawecLEVy&sig=INAtiwx5Uy85dO9rOp9mOjmviqU&hl=en&ei=wbF5SrziD47OM7HUnaMO&sa=X&oi=book_result&ct=result&resnum=7#v=onepage&q=&f=false Google Book: WIPO guide to intellectual property worldwide -- World Intellectual Property Organization]

==WIPO Performances and Phonograms Treaty (WPPT)==

'''A WIPO treaty that came into effect in 2002, explicitly addressing the rights of performers and producers of sound recordings.'''

WIPO's website states that:

“The Treaty deals with intellectual property rights of two kinds of beneficiaries:
(i) performers (actors, singers, musicians, etc.), and (ii) producers of phonograms (the persons or legal entities who or which take the initiative and have the responsibility for the fixation of the sounds).

They are dealt with in the same instrument because most of the rights granted by the Treaty to performers are rights connected with their fixed, purely aural performances (which are the subject matter of phonograms).

As far as performers are concerned, the Treaty grants performers four kinds of economic rights in their performances fixed in phonograms (not in audiovisual fixations, such as motion pictures):
(i) the right of reproduction, (ii) the right of distribution, (iii) the right of rental, and (iv) the right of making available."

''See also:''

* [[Glossary#Fixation|Fixation]]
* [[Glossary#Rights|Rights]]

''Other resources:''

* [http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html Text of WIPO Performances and Phonograms Treaty (WPPT)]
* [http://www.wipo.int/treaties/en/ip/wppt/summary_wppt.html Summary of the WIPO Performances and Phonograms Treaty (WPPT) (1996)]
* [http://portal.unesco.org/culture/en/ev.php-URL_ID=15851&URL_DO=DO_PRINTPAGE&URL_SECTION=201.html Supplemental UNESCO page on WPPT]
* [http://books.google.com/books?id=_pJyKvyGlUoC&pg=PA165&lpg=PA165&dq=WIPO+Performances+and+Phonograms+Treaty+%28WPPT%29&source=bl&ots=QQkMs_bIk-&sig=loiRRI8ommcqBd71rJYKU2ByXAE&hl=en&ei=B955SoP-GZXYNp3LlaMO&sa=X&oi=book_result&ct=result&resnum=10#v=onepage&q=&f=false Google Book excerpt:Concise European copyright law By Thomas Dreier, P. B. Hugenholtz]
* [http://en.wikipedia.org/wiki/WIPO_Performances_and_Phonograms_Treaty Wikipedia article on WPPT]

==WTO – World Trade Organization==

'''The WTO is an organization devoted to the rules of international trade.'''

According to [http://www.wto.org its website], the WTO's "main function is to ensure that trade flows as smoothly, predictably and freely as possible."

The WTO is responsible for, among other things, the TRIPS agreement, which was the first time and place that copyright issues became a focus of an international trade agreement.

''See also:''

* [[Glossary#TRIPS|TRIPS]]

''Other resources:''

* [http://www.wto.org/ WTO website]
* [http://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr00_e.htm The WTO in Brief]
* [http://www.wto.org/english/tratop_e/trips_e/trips_e.htm TRIPS materials on WTO website]
* [http://www.wto.org/english/tratop_e/dispu_e/dispu_subjects_index_e.htm#copyright WTO index of disputes issues]
* [http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm WTO website: Uraguay Round Agreement: TRIPS Trade-Related Aspects of Intellectual Property Rights]
* [http://www.wired.com/threatlevel/2009/01/china-pledges-w/ WIRED magazine article: "China Pledges WTO Copyright, Trademark Cooperation"]
* [http://www.chinadaily.com.cn/china/2007-07/04/content_909757.htm China Daily article: "US urged to withdraw WTO copyright complaint"]
* [http://www.nytimes.com/2009/01/27/business/27trade.html New York Times article: "W.T.O. Finds China Copyright Law Lacking"]
* [http://www.readwriteweb.com/archives/gad-zookz_wto_to_allow_copyright_infringement.php ReadWriteWeb article: "Gad-Zookz! WTO to Allow Copyright Infringement?" (Antigua)]
* [http://www.wipo.int/clea/en/details.jsp?id=3389 WTO page for Panama: Industrial Property (WTO Copyright), Law (Title VII Art. 286 & 291]
* [http://www.trademinister.gov.au/releases/2000/mvt065a_00.html Media release: "WTO Copyright Win a Boom for Australian Musicians"]
* [http://merlin.obs.coe.int/iris/1996/6/article11.en.html European Commission WTO copyright infringement procedure against Japan]
* [http://jobfunctions.bnet.com/abstract.aspx?docid=64544 Article: "Toward Supranational Copyright Law? The WTO Panel Decision and the 'Three-Step Test' for Copyright Exceptions"]
* [http://jlis.glis.ntnu.edu.tw/ojs/index.php/jlis/article/download/416/416 Article: "Impact of WTO’s Copyright Protection to Library Operations & Academic Communications"]
* [http://ifl.sagepub.com/cgi/pdf_extract/29/2/141 Article: "TRIPS into the unknown: Libraries and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights]
* [http://fairuse.stanford.edu/primary_materials/regulations/fr092995.html Text of US Code of Federal Regulations: Restoration of Certain Berne and WTO Works]
* [http://libraryjuicepress.com/blog/?p=550 Article: "A Marxist Analysis of the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights"]
* [http://www.ifla.org/en/publications/the-ifla-position-on-the-world-trade-organization The IFLA Position on The World Trade Organization (available in Chinese, French and German]
* [http://archive.ifla.org/III/clm/p1/pos-wto.htm The IFLA Position on WTO Treaty Negotiations]

==Work For Hire==

'''A creative work that the creator has made at someone else’s request, usually for pay.'''

Work for hire is a concept from U.S. copyright law, and exists in a few others as well. For example, if a person commissions a sculpture from an artist, and provides very specific requirements as to materials and appearance, the sculpture will probably be a work for hire, although the ultimate determination is fact specific.

The concept serves to clear up any confusion that might result when an employee creates a copyrightable work in the course of their employment. Under the “works made for hire” doctrine, the employer holds the copyright in such a situation.

It is this doctrine that ensures that, for example, the hundreds of people who work on the production of a motion picture do not have any claim to the copyright.

However, the nature of the employer/employee relationship can be complex and difficult to define, especially when it exists only for the duration of the work’s creation, or the work is created in an educational context.

Further complicating things, since the Berne Convention separately recognizes economic and moral rights, even a creator who has made a work for hire may still possess moral rights in that work.

''See also:''

* [[Glossary#Neighboring_Rights|Neighboring Rights]]
* [[Glossary#Transferability_.28of_rights.29|Transferability of Rights]]
* [[Glossary#Academic_Exception|Academic Exception]]

''Other resources:''

* [http://www.copyright.gov/circs/circ09.pdf PDF of US Copyright Office circular "Works Made for Hire Under the 1976 Copyright Act"]
* [http://www.copyright.gov/title17/92chap2.html Text of US copyright law "Chapter 2 - Copyright Ownership and Transfer"]
* [http://www.copylaw.com/new_articles/wfh.html Article: "Working with freelancers: What every publisher should know about the "work for hire" doctrine."]
* [http://www.oyez.org/cases/1980-1989/1988/1988_88_293 A short analysis of ''Community For Creative Non-Violence v. Reid'' the seminal U.S. case on the topic]
* [http://www.music-law.com/workforhire.html Music Law.com's page on work for hire]
* [http://www.keytlaw.com/Copyrights/wfhire.htm Legal information site's page on "Works Made for Hire Under the Copyright Act"]
* [http://www.artistshousemusic.org/videos/protecting+your+work+understanding+publishing+copyright+and+work+for+hire Video: Protecting Your Work: Understanding Publishing, Copyright, and “Work For Hire”"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=359720 Law Review article: "Pre-existing Confusion in Copyright's Work-for-Hire Doctrine"]
* [http://www.gkbledsoe.com/articles/submissions/work_for_hire.html The Writing for Children Resource Site article: "The Work-for-hire question"]
* [http://www.eff.org/deeplinks/2007/09/film-schools-teach-wrong-copyright-lesson EFF article: "Film Schools Teach Wrong Copyright Lesson"]
* [http://www.scribd.com/doc/1795117/EFF-ACM-copyright-FAQ-010806 Academy for Creative Media FAQ on the Student Copyright Agreement]
* [http://keepyourcopyrights.org/copyright/rights/work-for-hire KeepYourCopyrights.org page on Work for Hire]
* [http://en.wikipedia.org/wiki/Work_for_hire Wikipedia article on work for hire]

{{NavFooter}}

Glossary

2011-10-11T11:06:41Z

Thackett:

==Academic Exception==

'''Academic exception is the exception for teachers and academics to the general rule that employers hold copyright in the creative works produced by their employees in the course of their employment.'''

Unlike the a work-for-hire situtation, academics typically retain the copyrights in the scholarly work they produce, and may retain, sell or assign those copyrights, or dedicate them to the public domain, at their discretion.

''See also:''

* [[Glossary#Work_For_Hire|Work-For-Hire]]
* [[Glossary#Open_Access|Open Access]]

''Other resources:''

* [http://www.editlib.org/p/29269 A scholarly paper on the academic exception] [Canadian, access required]
* [http://www.sloan-c.org/publications/view/v1n1/CIP2.htm A brief discussion of the academic exception]
* [http://chronicle.com/article/Harvard-Faculty-Adopts/40447 An article on Harvard’s open access policy]

==“Actual Knowledge”==

'''Having direct knowledge (as opposed to merely having reason to believe) that copyright infringement is occurring.'''

Some copyright laws require web hosts to remove content from their servers if they posses "actual knowledge" that the content infringes copyright. Under such laws the hosts may become liable if they do not remove the content.

For example, Section 512(c) of the U.S. Digital Millenium Copyright Act reads:

“(c) Information Residing on Systems or Networks At Direction of Users.
(1) In general. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider
(A)
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

''See also:''

* [[Glossary#DMCA|DMCA]]
* [[Glossary#.E2.80.9CSafe_Harbors.E2.80.9D|Safe Harbors]]

''Other resources:''

* [http://www.keytlaw.com/Copyrights/dmca.htm Legal information website's page "You are here: Home Copyright Law Claims of Copyright Infringement under the DMCA Web Site Owners: How to Protect Yourself from Claims of Copyright Infringement for Users' Conduct"]
* [http://www.ipinfoblog.com/archives/intellectual-property-good-faith-in-dmca-takedown-notice-should-mean-simple-honesty.html Law professor David Nimmer's article "'Good faith' in DMCA take-down notice should mean simple honesty"]
* [http://www.wipo.int/edocs/mdocs/mdocs/en/osp_lia/osp_lia_2.doc WIPO Document" "A look back at the notice-takedown provisions of the U.S. Digital Millenium Copyright Act one year after enactment"]
* [http://jiplp.oxfordjournals.org/cgi/content/full/4/4/243 Law review article "Fair use and a takedown notice under the Digital Millennium Copyright Act" (requires subscription)].
* [http://www.benedict.com/digital/Internet/DMCA/DMCA-SafeHarbor.aspx Copyright website's article "Digital Millennium Copyright Act -- Safe Harbor Provisions"]

==American Library Association (“ALA”) Code of Ethics==

'''The voluntary code of ethics adopted by the American Library Association to govern the work of librarians.'''

The code makes “known to the profession and to the general public the ethical principles that guide the work of librarians, other professionals providing information services, library trustees and library staffs.” Its tenets “provide a framework; they cannot and do not dictate conduct to cover particular situations.”

''Other resources:''

* [http://www.ala.org/ala/aboutala/offices/oif/statementspols/codeofethics/codeethics.cfm Text of the code]

==Anti-Counterfeiting Trade Agreement (“ACTA”) Proposal (2007)==

'''A proposed multi-lateral trade agreement that is designed to better enforce intellectual property rights by combating the perceived increasing threat of counterfeiting.'''

This counterfeiting in question can be of physical goods and copyrighted works, as well as digital and Internet-based materials and technologies. Specific details of the Agreement’s content are still mostly a secret, and some countries, including the United States, restrict access to it on the basis of national security. The Agreement is generally understood to supersede or bypass UN, WIPO and TRIPS guidelines, and would, among other things, make all peer-to-peer filesharing illegal, regardless of content.

''Other resources:''

*[http://cryptome.org/acta/acta-proposal-2007.pdf Text of ACTA discussion paper]
*[http://arstechnica.com/tech-policy/news/2010/02/world-get-ready-for-the-dmca-actas-internet-chapter-leaks.ars ARSTechnica page on ACTA]
*[http://sites.google.com/site/actadigitalchapter/acta_digital_chapter.pdf?attredirects=1 Google download of treaty text]
*[http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement Wikipedia article on ACTA]
*[http://www.eff.org/issues/acta Electronic Frontier Foundation page on ACTA]
*[http://www.publicknowledge.org/issues/acta Public Knowledge page on ACTA]
*[http://www.ip-watch.org/weblog/2009/04/14/the-acta-threat-to-the-future-of-wipo/ Intellectual Property watch article on ACTA by Canadian law professor]

==Assignment==

'''The means by which ownership of a copyright is transferred to another person or entity.'''

For example, musicians often assign the copyright to their music to their publisher or record company as part of their contract, although this is not a requirement.

''Other resources:''

* [http://www.copyright.gov/help/faq/faq-assignment.html U.S. copyright office FAQ’s on “assignment”]
* [http://www.proz.com/kudoz/german_to_english/law:_contracts/1104341-wahrnehmungsvertrag.html German word for “Assignment” and explanation of same]
* [http://wiki.answers.com/Q/What_is_an_assignment_of_intellectual_property Wikianswers page on “assignment”]
* [http://agreements.realdealdocs.com/IP-Intellectual-Property-License-Assignment-Agreement/ Sample IP license agreements]
* [http://www.articlesbase.com/law-articles/what-are-intellectual-property-assignment-and-license-agreements-586467.html Short article on assignment and licensing]

==Author==

'''The original creator of a work.'''

While the word “author” is used in common vernacular to identify the person who wrote something, such as a book, paper, or article, the term "author" is used in copyright law to identify the creator of any work. Thus, a sculptor, artist or photographer would be considered the "author" of his or her work.

If a copyright is assigned or transferred to a second person or entity, that person does not become the author, merely the new rights-holder. The original author always retains that status or description, and in some legal regimes, has certain rights that cannot be assigned, altered, or renounced.

In countries that recognize the [[Glossary#Work_For_Hire|work-for-hire]] doctrine, the employer can be considered the "author" of the work.

''See also:''

* [[Glossary#Moral_Rights|Moral Rights]]
* [[Glossary#Right_of_Integrity|Right of Integrity]]
* [[Glossary#Right_of_Withdrawal|Right of Withdrawal]]
* [[Glossary#Right_of_Attribution|Right of Attribution]]

==Berne Convention for the Protection of Literary and Artistic Works==

'''The Berne Convention is an international copyright agreement that was first adopted and implemented in 1886. Its intent was to harmonize copyright law across national borders. There are currently 164 member countries.'''

[http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works According to Wikipedia], “The Berne Convention was revised in Paris in 1896 and in Berlin in 1908, completed in Berne in 1914, revised in Rome in 1928, in Brussels in 1948, in Stockholm in 1967 and in Paris in 1971, and was amended in 1979. The UK signed in 1887 but did not implement large parts of it until 100 years later with the passage of the Copyright, Designs and Patents Act of 1988.”''

The Berne Convention is currently active, and is administered by the [[Glossary#WIPO|World Intellectual Property Organization (“WIPO”)]].

While the convention grants authors an array of rights, the most important aspect of the Berne Convention is that countries must grant an author that is a citizen of another member country the same protections it offers its own citizens, in addition to any rights that the convention itself grants. That is to say, a French citizen’s work in Poland or Morocco automatically enjoys the same protections that the work of a Polish or Moroccan citizen would.

''Other resources:''

* [http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works Wikipedia article on the Berne convention]
* [http://en.wikipedia.org/wiki/Berne_Convention_Implementation_Act_of_1988 Wikipedia article on the Berne convention Implementation Act of 1988]
* [http://www.law.cornell.edu/treaties/berne/overview.html Text of the Berne Convention]
* [http://www.copyrightservice.co.uk/copyright/p08_berne_convention UK resource on Berne Convention]
* [http://www.britannica.com/EBchecked/topic/62482/Berne-Convention Britannica article on the Convention]

==Bilateral Agreements==

'''A bilateral agreement is an agreement or treaty made directly between two countries.'''

This is in contrast to a “multilateral” agreement or international agreement such as the [[Glossary#Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works|Berne Convention]] or [[Glossary#TRIPS|TRIPS]]. While some bilateral agreements deal exclusively with copyright, copyright provisions may be inserted in to other, larger treaties, such as peace treaties or economic treaties.

In a bilateral agreement, an author from one country can claim copyright protections in the other country. Such agreements are often used to create copyright protections or provisions that are more stringent, or more generous, than would be possible in a broadly multinational agreement.

A Berne Convention member country may enter into bilateral agreements as long as the provisions of those agreements meet the minimum standards of the Berne Convention. For instance, although it is a member of the Berne Convention, the TRIPS Agreement, and other multilateral agreements, the United States has bilateral agreements with many different countries.

''Other resources''

* [http://www.bilaterals.org/rubrique.php3?id_rubrique=60 A website devoted to international bilateral intellectual property agreements]
* [http://www.eff.org/issues/ftaa EFF article on Free Trade Agreement of the Americas]
* [http://en.wikipedia.org/wiki/Bilateral_copyright_agreements_of_the_United_States Wikipedia article on US bilateral agreements]
* [http://gos.sbc.edu/e/esserman.html Text of speech about U.S & Vietnam bilateral agreement]

==Blanket license==

'''A blanket license allows a user to engage in certain uses of a large number of works under preset terms, without individual negotiation.'''

In the copyright context, such a license addresses all of a defined group of copyrighted works. It “covers” all of the relevant works like a blanket. In this way, it makes it easier to negotiate for the use of a work by making it possible to only make a deal once rather than entering into many separate agreements.

Usually, such licenses are granted and managed by collective rights management groups, which control access to thousands, or even millions, of copyrighted works.

''See also:''
* [[Glossary#Collective_Rights_Management_Organization.2FSociety|Collective Rights Management Organizations]]

''Other resources:''

* [http://www.ascap.com/licensing/termsdefined.html ASCAP definitions page]
* [http://www.aimp.org/forums/1,2/Blanket_license Assoc. of Independent Music Publishers definition of blanket license.]
* [http://www.copyright.com/ Webpage of US Copyright Clearance Center]
* [http://www.accesscopyright.ca/ Webpage of Canadian copyright clearance entity]
* [http://www.eff.org/wp/better-way-forward-voluntary-collective-licensing-music-file-sharing EFF page on on collective licensing for music]

==“Browsewrap”==

'''“Browsewrap” is a slang term for a contract governing access to or use of content on a website that does not require the website user to click on a button or otherwise take action to expressly manifest consent to the terms of the agreemen. Typically, the Internet user is considered to have agreed to the terms of the browsewrap agreement by accessing or “browsing” the website.'''

The terms of a browsewrap agreement governing access to a website are not always prominently displayed to the Internet user, and instead are often listed on a separate page that can only be accessed by clicking a link at the bottom of the screen. For this reason, some commentators question whether browsewrap agreements create enforceable contracts.

''See also:''
*[[Glossary#.E2.80.9CClickwrap.E2.80.9D_or_.22Click-on.22|Clickwrap]]

''Other Resources''

* [http://en.wikipedia.org/wiki/Browse_wrap Wikipedia entry on “Browsewrap”]
* [http://faculty.law.wayne.edu/Weinberg/law-in-cyberspace/2008-click_wrap.html US law school assignment on “wrap” licenses.]
* [http://www.cptech.org/ecom/ucita/licenses/browsewrap.html Examples of “browsewrap” licenses]
* [http://www.internetlibrary.com/topics/browse-wrap_agree.cfm Technical legal analysis of recent US case involving “browsewrap”]
* [http://technollama.blogspot.com/2007/09/browse-wrap-agreements-boosted-by-us.html Blog post analyzing a “browsewrap” case]
* [http://law.bepress.com/expresso/eps/1885/ Academic paper on “browsewrap” agreements]
* [http://www.zvulony.com/browse_wrap.html Canadian lawyer discusses “browsewrap” agreements]
* [http://works.bepress.com/cgi/viewcontent.cgi?article=1005&context=samster Academic paper discussing enforceability of “browsewrap” agreements]

==“Cease-and-desist” letter==

'''A letter sent to an alleged copyright infringer or the entity hosting allegedly infringing material, requesting that certain activities be ceased or that access to the allegedly infringing material be disabled.'''

With respect to Internet content, a cease and desist letter can take the form of a [[Glossary#.22Notice_and_Takedown.E2.80.9D|"takedown notice.”]]

'Under the U.S. copyright legislation known as the [[Glossary#DMCA|Digital Millenium Copyright Act]], a copyright holder who believes that a website is infringing the holder’s copyright, usually by hosting protected material without permission, can send a cease-and-desist letter to the entity hosting the material. The website will not be held liable if it immediately takes down the allegedly infringing work upon receipt of the takedown notice. There are procedures under which the person who posted the content can challenge a takedown notice, and have access to the restored.

''Other resources:''
* [http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act Wikipedia entry on DMCA]
* [http://www.free-legal-document.com/copyright-cease-and-desist.html A sample cease and desist letter]
* [http://www.chillingeffects.org/ Chilling Effects - a website devoted to the suppression or censorship of online speech]
* [http://www.techdirt.com/articles/20090726/0341395658.shtml Technology website article on “cease and desist” letters]
* [http://www.citmedialaw.org/blog/2009/inter-newspaper-cease-and-desist-letter-my-trip-buffet-wrong Citizen Media Law Project discussion of a particular cease and desist letter]
* [http://www.scribd.com/doc/2526821/Notice-of-Copyright-Infringement-and-Demand-to-Cease-and-Desist Scribd posting of various cease and desist letters]

==CISAC==

'''The International Confederation of Societies of Authors and Composers. CISAC is an organization composed of numerous national preforming rights societies.'''

According to [http://www.cisac.org its website], CISAC “works towards increased recognition and protection of creators’ rights. CISAC was founded in 1926 and is a non-governmental, non-profit organisation. Its headquarters are in Paris, with regional offices in Budapest, Buenos Aires, Johannesburg and Singapore. . . . . As of June 2008, CISAC numbers 225 authors’ societies from 118 countries and indirectly represents more than 2.5 million creators within all the artistic repertoires: music, drama, literature, audio-visual, graphic and visual arts.”

==“Clickwrap” or "Click-on"==

'''Clickwrap or Click-on is a license agreement for a website or software to which the user agrees by clicking on a button or link.'''

''Once the user clicks on the “I accept” or “I agree” button or link, thereby accepting the license, he or she can access the copyrighted material, and is bound by the terms of the licensing agreement. An “End-User Licensing Agreement” or “EULA” is a classic example of a “clickwrap” agreement. Since the user has no choice except to accept the licensing contract in order to access the content or program, in recent years, both courts and public opinion have begun to perceive these sorts of agreements as at least potentially oppressive.''

See also “shrinkwrap contract," “contract of adhesion”

'''Other Resources'''

* [http://en.wikipedia.org/wiki/Clickwrap Wikipedia article on “clickwrap”]
* [http://cyber.law.harvard.edu/metaschool/fisher/contract/cases/procd.htm Decision from seminal U.S. case on “clickwrap”, ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)]
* [http://www.akamarketing.com/click-wrap-shrink-wrap-contracts.html Article analyzing license types]
* [http://www.wired.com/politics/law/commentary/circuitcourt/2007/08/circuitcourt_0801 An article on why such licenses are coming under criticism]

==Choice of Laws==

'''The doctrine by which a court or other tribunal determines which country’s or jurisdiction’s laws will apply to a particular case or claim.'''

In any legal dispute that crosses political borders, whether domestic or international, there is a question of which laws will apply to the dispute. Such cross-border disputes are increasingly common in the Internet era. For instance, if an Internet user in Italy accesses a server in Sweden, and downloads a copy of a song by a U.S. recording artist, what laws should apply? Where should the trial be held?

A court hearing a suit like this will review the facts and decide what location makes the most sense for the trial, and will also decide which jurisdiction’s laws should apply. It is possible, when writing a contract, to specify what laws will govern in the event of a dispute. Occassionally, the laws of more than one country or jurisdiction might apply to different issues or claims in the same litigation.

''Other resources:''

* [http://en.wikipedia.org/wiki/Choice_of_law Wikipedia article on choice of law]
* [http://www.megalaw.com/top/conflictoflaws.php Site of “choice of laws” resources]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=958854 An academic article entitled "An Overview of Choice of Law, Jurisdiction and Foreign Judgment Enforcement in IP Disputes"]
* [http://www.scribd.com/doc/239477/Conflict-of-Laws-and-Choice-of-Law US law review article: "Conflict of Laws and Choice of Law"]

==Circumvention==

'''The act of avoiding, breaking or otherwise bypassing protections on digital content and technology.'''

Many digital or electronic resources, including online databases, software and more, come with built-in protections which in theory prevent illegal copying or impermissible uses. For example, DVDs may have a “region code” embedded in their data that prevents them from being played on DVD players from different parts of the world. Likewise, software may have added code, or encryption, which prevents it from being copied.

Although these technological barriers may arguably help to protect illegal copying or use of content, they can also get in the way of legitimate uses, such as playing a DVD on a Linux-based player, or making an archival copy of software. A user who wants to do these things will therefore have to circumvent, or break, the protection measures. However, this is illegal to do in many countries.

Notably, in the United States, Section 1201 of the Digital Millennium Copyright Act (1998) specifically forbids circumvention of technological protection measures, and even makes it illegal to sell or own anything that facilitates circumvention.

Laws like Section 1201 are controversial, because from one perspective, the protections a law like this facilitates are parallel to, and can last longer than, those offered by copyright. This arguably defeats the purpose of copyright law’s limited duration protections, violates copyright’s implicit bargain with the public and harms the public domain.

''See also:''

* [[Glossary#TPM_.E2.80.93_Technological_Protection_Measures|Technological Protection Measures]]
* [[Glossary#Right_of_Access|Right of Access]]
* [[Glossary#DMCA|DMCA]]

''Other resources:''

* [http://www.chillingeffects.org/anticircumvention/ Chilling Effects website on anticircumvention]
* [http://en.wikipedia.org/wiki/Anti-circumvention Wikipedia article on aticircumvention]
* [http://www.copyright.gov/1201/ U.S. Government's website on copyright]
* [http://www.sciencemag.org/cgi/content/abstract/293/5537/2028 Abstract of academic paper on anticircumvention]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=320961 An academic paper: “Anti-circumvention Misuse”]
* [http://blogs.law.harvard.edu/ugasser/2004/11/30/eu-anti-circumvention-laws/ Berkman Center resource on anticircumvention]
* [http://books.google.com/books?id=I9L6AAFtxH0C&pg=PA71&lpg=PA71&dq=anti-circumvention++EU&source=bl&ots=4unbi1jd9k&sig=oqoQK3Q1iqyqEdCpTzvkUxxZ1CE&hl=en&ei=rwp1SvGoJaSltgeRjeWWCQ&sa=X&oi=book_result&ct=result&resnum=6#v=onepage&q=anti-circumvention%20%20EU&f=false Google Book excerpt from EU Digital Copyright Law and the End-User]
* [http://ansuz.sooke.bc.ca/lawpoli/copyright/geistbook/2_04_Geist.pdf PDF of Canadian law professor Michael Geist's article “Anti-circumvention Legislation and Competition Policy”]
* [http://portal.acm.org/citation.cfm?id=1314276.1314284 Academic article: “Protecting fair use from digital rights management in China”]

==Copyright==

'''The set of rights granted to the author of a creative work that govern certain third party uses of the work.'''

These rights vary from country to country, although there is substantial international harmonization. They can typically be divided into economic rights and so-called “moral” rights.

With respect to the economic rights, they essentially represent a temporary monopoly over the creative work in question. In theory, this monopoly control is supposed to incentivize and reward creator, convincing them to create more. However, when the term of copyright ends, the work belongs to the public. The public’s gains from the creation of new works is thought to compensate for the inefficiencies that a monopoly represents. Economic rights are truly “property” in that they can be sold, assigned, inherited, divided up, and more.

With respect to “moral” rights, these belong to the author at the moment of creation, and cannot usually be transferred to anyone else.

''See also:''
* [[Glossary#Rights|Rights]]

''Other resources:''

* [http://www.copyright.gov/help/faq/faq-general.html#what US Government’s copyright website]
* [http://www.eucopyright.org/ EU’s copyright website]
* [http://ec.europa.eu/internal_market/copyright/index_en.htm EU internal markets copyright website]
* [http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/Home Canadian Intellectual Property Office website]
* [http://www.eucopyright.com/ Private website devoted to EU copyright law]
* [http://www.chinaiprlaw.com/english/laws/laws10.htm Copy of Chinese copyright law (English)]
* [http://www.cric.or.jp/cric_e/clj/index.html Copy of Japan’s copyright law (English)]

==Common Law==

'''A legal system based primarily on custom and the precedent of court decisions.'''

International legal systems tend to fall into one of three categories. Typically found within countries that have some historical connection with the United Kingdom or the former British Empire ,“common law” systems have a legal system based primarily on custom -- the precedent set by court decisions (“case law”) , in contrast to civil law systems or religious law systems.

''See also:''

* [[Glossary#Civil_Law|Civil Law]]
* [[Glossary#Religious_Legal_System|Religious Legal System]]

''Other resources:''

* [http://en.wikipedia.org/wiki/Common_law Wikipedia Article on the “common law”]
* [http://books.google.com/books?id=xXouAAAAIAAJ&dq=common+law&printsec=frontcover&source=bl&ots=8XbPPUS3Vd&sig=Oa5KoDXWXQdGWWri9ojJKCziJgc&hl=en&ei=Og91StPgC6WutgecttWWCQ&sa=X&oi=book_result&ct=result&resnum=3#v=onepage&q=&f=false Google Book, The Common Law by O.W. Holmes]
* [http://www.britannica.com/EBchecked/topic/128386/common-law Britannica article on the “common law”]

==Collective Rights Management Organization/Society==

'''An organization that controls the economic rights to a large number of creative works.'''

Also known as “collecting society” or a "copyright collective.”

A collective rights management organization or society most often deals with the rights to music and text. These groups lower the transaction costs of acquiring rights, and make it easy for would-be users of copyrighted works to get permission to do so. With a collective rights group, there need only be one set of negotiations and one fee paid, regardless of how many different works are used. Compare having to find and negotiate with the rights-holders for one hundred different songs with negotiating a single contract.

While groups like this undoubtedly solve a market problem, criticisms leveled against them include that they do not channel enough of the fees they receive to the actual artists, and that they seek to unfairly charge for uses over which they should not have control. Also, most notably, there are no collective rights groups managing the rights to sound recordings, which has led to much controversy over sampling.

Some collective rights management organizations include:

* [http://www.ascap.com/index.aspx ASCAP (United States)]
* [http://www.cisac.org/ CISAC (International)]
* [http://www.soundexchange.com/ SoundExchange (United States)]
* [http://www.harryfox.com/index.jsp Harry Fox Agency (United States)]
* [http://www.gesac.org GESAC (European Union)]
* [http://www.agicoa.org/ AGICOA website (International)]
* [http://www.biem.org/ BIEM (International)]
* [http://www.cepic.org/issues/2007/12/statement_collective_rights_management_2000 CEPIC (European Union)]
* [https://www.ige.ch/en/ IGE (Switzerland)]

''Other resources:''

* [http://www.eifl.net/cps/sections/services/eifl-ip/issues/handbook/collective-rights EIFL handbook on Collective rights]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=998328 Academic paper “Economic Functions of Collecting Societies - Collective Rights Management in the Light of Transaction Cost - and Information Economics”]
* [http://www.slideshare.net/paulkeller/creative-commons-collective-rights-management-presentation Dutch slide presentation on collective rights and Creative Commons]

==Compulsory License==

'''A license for use of copyrighted material that is mandated by law to be made available to everyone on an equal basis, usually in exchange for the payment of a set fee.'''

From the user’s perspective, it is a use for which the user does not need to seek permission. That is, the rights-holder may not refuse to grant the license to the user. The rights-holder still has the right to whatever revenue comes from the use, but has no rights of control.

Such licenses are always non-exclusive, since anyone can obtain one, and the fees that are paid to the rights-holder for them are usually set by statute. An example of a compulsory license is the so-called “mechanical license” under U.S. law for recording a new version of an existing song. Once a song has been released to the public, any other artist may record a version of it, and must pay a set fee (currently 2.5 cents per copy) to the rights-holder of that song.

This is not the only example of a compulsory license. There is a wide variety, whose nature and terms depend on the laws of the country in question, and the nature of the work. Compulsory licensing schemes exist for music, text, pharmaceuticals and more.

Recently, some copyright scholars and activists have proposed that the solution to the perceived problem of peer-to-peer filesharing will be some sort of compulsory licensing scheme. Filesharing would become legal, but artists would get paid, most likely out of a fund created by levying taxes on recordable media and associated technologies.

'''Other resources:'''

* [http://en.wikipedia.org/wiki/Compulsory_license Wikipedia article on compulsory licenses]
* [http://www.copyright.gov/circs/circ73.pdf US Government PDF on compulsory licenses]
* [http://www.cptech.org/ip/health/cl/ Website with list of resources on compulsory licensing (English)]
* [http://lawmeme.research.yale.edu/modules.php?name=News&file=print&sid=1241 Academic blog on compulsory licensing, with links to other posts]
* [http://www.wto.org/english/tratop_e/TRIPs_e/public_health_faq_e.htm WTO website]
* [http://www.cato.org/pubs/pas/pa508.pdf Robert Merges of the Cato Institute's analysis of compulsory licensing (English, US) academic, English]
* [http://jiplp.oxfordjournals.org/cgi/content/extract/2/5/324 Academic article “Compulsory licensing of IP rights: Has EC competition law reached a clear and rational analysis following the IMS judgment and the Microsoft decision?]

==Civil Law==

'''A legal system in which the law is based almost exclusively on legislation.'''

Such a system is as opposed to a common law system (based on tradition and court decisions) or a religious law system. Civil law regimes tend to be either inspired by or directly descended from Roman legal systems.

[http://en.wikipedia.org/wiki/Civil_law_%28legal_system%29 According to Wikipedia], “The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. It is the most prevalent and oldest surviving legal system in the world.”

Most of Europe and its former colonies have civil law-based legal systems, many of which hearken back to the [http://en.wikipedia.org/wiki/Code_Napoleon Napoleonic Code.]

This version of civil law is not to be confused with the sort that occurs in the civil law / criminal law distinction, in, among others, U.S. law.

''See also:''

* [[Glossary#Common_Law|Common Law]]
* [[Glossary#Religious_Legal_System|Religious Legal System]]

'''Other resources:'''

* [http://en.wikipedia.org/wiki/Civil_law_%28legal_system%29 Wikipedia Article on Civil Law]
* [http://www.britannica.com/EBchecked/topic/119262/civil-law Britannica article on Civil Law]
* [http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf PDF “A Primer on the Civil Law System” (academic)]
* [http://iuscivile.com/ List of resources on Civil Law]

==Commons==

'''This term refers to both the property that is owned by the community in general and the social regime for governing usage of that resource.'''

Some historical commons were truly open to all, but some were governed by rules that limited access. However, despite what might seem like a complete lack of any rules for governing the maintenance and usage of a commons, they were historically at the center of a complex web of social norms, and were well-monitored and maintained.

In the late 1960s a school of thought emerged whcih claimed that any real commons would quickly be over-exploited by an economically rational user, and that only private ownership could successfully manage societal resources.

Although this idea was quickly and widely accepted, it has been challenged in recent years for misstating the facts surrounding historical commons, as well as for overlooking the real problems that can arise from complex webs of private ownership, a problem [http://en.wikipedia.org/wiki/Michael_Heller_%28law_professor%29 Michael Heller] has called “the tragedy of the anti-commons.”

With respect to copyright, the commons is the enormous body of creative work to which all of society has access. Some is historical, some is contemporary. Everyone having access to them does not necessarily mean that no one holds copyright in the works that make up the commons. Some works are in the public domain, which means that not only can anyone access them and make use of them, but that no one has the right to restrict their usage in anyway. On the other hand, works existing under regimes such as Creative Commons, or the GPL license , as well as so-called “Open Access” journals, are examples of copyright-controlled information that is nonetheless part of the commons. For example, the works of Shakespeare, or a culture’s folktales, are part of the commons, as is any modern work which its author has dedicated to the public domain. Further, any work to which anyone has access, but for which the usages are restricted (usually with respect to keeping further uses of the work open to access) are still considered part of the commons.

''See also:''

* [[Glossary#Public_Domain|Public Domain]]

'''Other resources:'''

* [http://www.garretthardinsociety.org/articles/art_tragedy_of_the_commons.html Garret Hardin’s seminal 1968 article on “Tragedy of the Commons”]
* [http://en.wikipedia.org/wiki/Tragedy_of_the_commons Wikipedia article on "tragedy of the commons"]
* [http://www.youtube.com/watch?v=L8gAMFTAt2M Garrett Hardin interview]
* [http://www.flickr.com/commons?phpsessid=ea7b4da468f5935f24b65f41dbfc356f Flickr’s archive of photos in the commons. a public photography archive]
* [http://yupnet.org/boyle/ The Public Domain: Enclosing the Commons of the Mind by James Boyle]
* [http://www.gridlockeconomy.com/ Michael Heller’s website]
* [http://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/4445/Suber_Creating_041004.pdf?sequence=1 Academic article "Creating An Intellectual commons Through Open Access" by Peter Suber]

==Compilation==

'''A work that gathers together other previously existing copyrighted works or facts.'''

For example, an anthology of stories is a compilation. A recording that brought together songs from a wide variety of artists, such as a soundtrack album, would be a compilation. A database is also a compilation, of facts rather than creative works. In many jurisdictions, it is possible to hold a separate copyright in a compilation that is independent of any copyright in the works that make it up, as long as there is sufficient creativity in the selection and arrangement of the works. It is also possible to hold copyright in a database, based on the selection and arrangement of its factual elements, or alternatively, based on the effort that went into creating it.

''Other resources:''

* [http://www.copyright.gov/title17/92chap1.html#103 U.S. Law on compilations]
* [http://www.pddoc.com/copyright/compilation.htm US legal resources on compilations (English, US)]
* [http://www.bitlaw.com/copyright/database.html Legal website's page on databases (English, US)]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1299012 Australian law review article “Compilation Copyright: A Matter Calling for 'a Certain...Sobriety'"]
* [http://www.internetlibrary.com/topics/copyright_compilatio.cfm A list of compilation cases]
* [http://books.google.com/books?id=_s_e_YhjQsQC&pg=PA8&lpg=PA8&dq=compilation+copyright&source=bl&ots=RCOegs1pN-&sig=1PLYa0lf1nmycbNcJ5l20UWgqvo&hl=en&ei=LyJ2SqHBJOattgfhyt2WCQ&sa=X&oi=book_result&ct=result&resnum=6#v=onepage&q=compilation%20copyright&f=true Google Book excerpt: Kennneth Crews on compilations]
* [http://www.law.cornell.edu/copyright/cases/499_US_340.htm Text of ''Feist v Rural Telephone'', the seminal U.S. case on copyright in compilations]

==CONFU==

'''An abbreviation of the “Conference on Fair Use.”'''

The Conference on Fair Use was a series of meetings held in the United States in the mid to late 1990s. The purpose of CONFU was to have a meaningful discussion about “fair use” in an increasingly digital age, especially for academics and librarians. However, due in large part to fundamental disagreements among the various represented interest groups, the meetings failed to achieve any meaningful consensus.

''See also:''

*[[Glossary#.E2.80.9CFair_Use.E2.80.9D|Fair Use]]

''Other resources:''

* [http://www.uspto.gov/web/offices/dcom/olia/confu/report.htm Text of CONFU report ]
* [http://www.utsystem.edu/OGC/IntellectualProperty/confu.htm CONFU page from University of Texas’ copyright guidelines. (English, US)]
* [http://www.utsystem.edu/OGC/IntellectualProperty/imagguid.htm University of Texas guidelines about use of images]
* [http://www.arl.org/pp/ppcopyright/copyresources/confu-main.shtml Association of Research libraries resource on CONFU]

== Counterfeiting ==

'''Counterfeiting is the practice of making illegal copies of something and then attempting to pass the copies off as the real thing.'''

Almost anything can be copied, whether currency, material goods, or intellectual property. A counterfeiter hopes to take advantage of any positive reputation that the original enjoys without having to invest time and resources in creating it. Counterfeits damage the original by competing with it in the marketplace and by hurting the original’s reputation.

''Other resources:''

* [http://www.gonzagaip.org/blog/?p=8 IP Law organization analysis of French court ruling about counterfeiting]

==Course Pack==

'''A collection of documents put together by a teacher as a resource for students in a particular course or class.'''

Often, teachers with a specific curriculum in mind will wish to assemble their own materials rather than teach from a particular textbook. As a corollary to this, a teacher creating a curriculum drawing on a wide range of resources may wish to simply provide her students with only the materials they need, rather than requiring them to purchase many books, often at great cost, each of which will contain only a small piece of the curriculum, and the majority of the contents of which will be superfluous.

Of course, creating such a “course pack” necessitates the copying of the relevant works, implicating copyright law. Such copying may or may not fall under fair use, fair dealing, or other exceptions to copyright, depending on the circumstances and the jurisdiction. There have been two seminal cases in the United States dealing with course packs and copyright, both of which were resolved against the universities in question. It is noteworthy, though, that each of those cases involved a for-profit copying service.

''Other resources:''

* [http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-a.html Stanford Fair Use Center on course packs]
*[http://www.law.cornell.edu/copyright/cases/99_F3d_1381.htm Text of ''Princeton Univ. v. Michigan Document Servs.'', 99 F.3d 1381 (6th Cir. 1996).)]
* [http://www.bc.edu/bc_org/avp/cas/comm/free_speech/basicbooks.html Text of ''Basic Books Inc. v. Kinko's Graphics Corp.'', 758 F.Supp. 1522 (S.D. N.Y. 1991).)]
* [http://www.universityreaders.com/coursepack/ Professional course pack service]
* [http://everybodyslibraries.com/2008/04/16/coursepack-sharing-an-idea-whose-time-has-come/ Article on course packs.]
* [http://www.aaup.org/AAUP/pubsres/academe/2001/JF/Feat/nels.htm Article on course packs from American Assoc. of University Publishers]
* [http://distance.uaf.edu/archives/bookstore/subbookstore/coursepack-request.php A distance learning organization’s course pack request form]
* [http://www.mcgilldaily.com/article/2987-course-packs-could-go-online- Canadian article on using course packs online]

==Creative Commons==
''' “Creative Commons is a nonprofit corporation dedicated to making it easier for people to share and build upon the work of others, consistent with the rules of copyright.”'''

The above definition comes from the Creative Commons website. The organization was founded in 2001 by, among others, Harvard Professor Lawrence Lessig. Its goal was to provide simple, easy to understand and use copyright licenses that would allow creators to share their work with the world under terms they were comfortable with, so people can share, remix, and/or use them commercially, rather than the default terms offered by statute. Currently, Creative Commons offers 6 different licenses (in 50 countries and counting), whose features vary according to their permissiveness, and the uses they allow. The existence and terms of these special licenses are communicated to users by employing both the Creative Commons name and a series of icons that suggest the specific terms of the license.

A 2008 U.S. case, ''Jacobsen v. Katzer'', concerning later usage of software licensed under a license similar in style and intent to those offered by Creative Commons held that the license was a valid one, and that violating it terms constituted copyright infringement. The ruling greatly strengthened the enforceability of such agreements, helping their use to be perceived as more mainstream and legitimate.

''Other resources:''

* [http://creativecommons.org/ Creative Commons’ website]
* [http://cyberlaw.stanford.edu/packet/200810/breach-conditions-free-and-open-source-software-licenses-may-constitut Stanford Fair Use site on the ''Jacobsen v. Katzer'' case above]
* [http://www.klgates.com/newsstand/Detail.aspx?publication=4876 US law firm analyzes legal implications of ''Jacobsen v. Katzer'']

==Collective work==

'''A creative work that represents the creative input of more than one author.'''

When two or more people share the copyright in a work they are referred to as “joint authors” A movie is a classic example of a collective work, involving as it does the efforts of hundreds, if not thousands, of people. Nevertheless, the rights to collective works are usually held by only one, or at most a few, people. In the case of a movie, most of the people working on it are treated, by their contract, as employees, rather than as joint authors.

==Damages==

'''The money given to a copyright holder to compensate him or her for the harm caused by infringement.'''

Whenever the copyright in a work is infringed, there is at least the theoretical possibility that the legal holder of the copyright has been harmed in some way. If the rights-holder sues the infringer and wins, a court may award damages to the rights holder as way of compensating them for any damage that has been done. A rights-holder may seek actual or statutory monetary damages,depending on which she thinks are more valuable, or easier to determine, or an injunction compelling the defendant to cease the infringing activities.

====Actual Damages====

'''Actual damages represent the true cost of the harm suffered as a result of the infringement.'''

For example, if it were possible to determine exactly how many sales had been lost as a result of an act or acts of infringement, it would be possible to calculate actual damages. One thousand sales lost, at a profit of ten euros a sale = ten thousand euros damages. In practice, it can be very difficult to accurately calculate actual damages. When this is true, statutory damage provisions will frequently be used instead.

====Statutory Damages====

'''Statutory damages are damages where the amount of money a rights-holder may collect as damages is set by statutes.'''

Many legal regimes contain provisions for statutory damages. For example, in US law, 17 USCA 504(c) states that “Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.” For willful infringement, the amount can go up to $150,000!

''Other resources:''

* [http://www.minterellison.com/public/connect/Internet/Home/Legal+Insights/Newsletters/Previous+Newsletters/A-D-Damages+for+moral+rights+infringements Australian law firm’s analysis of case where artist is awarded damages for moral rights]
* [http://www.vlaa.org/assets/documents/VARA.pdf PDF of "An Artist’s Guide to VARA"]
* [http://en.wikipedia.org/wiki/Visual_Artists_Rights_Act Wikipedia article on VARA]
* [http://www.artslaw.org/vara.htm IP lawyer discusses VARA]
* [http://www.law.uconn.edu/homes/swilf/ip/statutes/vara.htm Text of VARA]
* [http://www.truefresco.org/2008/04/renowned-muralist-kent-twitche.html Article discussing an artist’s lawsuit over desecration]

==Database==

'''A database is a collection of data on a particular topic or topics, usually searchable, aggregated into one place.'''

Databases have an unusual relationship with copyright. The creator of a database can hold copyright in the database, but only in certain aspects of it, because the contents of a database are either facts, in which case they aren’t copyrightable at all, or they are non-factual, but therefore already under copyright, and controlled by different rights-holders. However, a lot of work can go into creating a database, and some jurisdictions recognize and protect that labor.

For example, in the U.S., the copyright in databases is colloquially known as “thin” ( as opposed to "thick") and is only in the selection and arrangement of the materials. On the other hand, in the European union, databases receive 15 years of protection to protect the investment of time, money and resources on the part of the database creator.

''See also:''

*[[Glossary#Compilation|Compilation]]

''Other resources:''

* [http://books.google.com/books?id=6bFgLrNke40C&pg=PA110&lpg=PA110&dq=assignment+of+copyright+EU&source=bl&ots=TfawTWnsyT&sig=So4Tf4U_ArceAf1AtsstC4y8Vmc&hl=en&ei=K0lySsLGK47oMZCiobEM&sa=X&oi=book_result&ct=result&resnum=5#v=onepage&q=&f=false Google Books Entry Legal Protection of Databases by Mark J. Davison]
* [http://ec.europa.eu/internal_market/copyright/prot-databases/prot-databases_en.htm EU’s webpage on database and their protection]
* [http://www.unc.edu/courses/2006spring/law/357c/001/projects/dougf/node5.html American law professor Lolly Gasaway’s paper on databases]
* [http://www.copyright.gov/docs/regstat092303.html Testimony to US government on database protection act]
* [http://www.copyright.gov/reports/dbase.html US Copyright Office’s report on legal protection for databases]
* [http://www.codata.org/codata/codata02/03invited/Tabuchi/Tabuchi_CODATA_ejournal.pdf PDF of WIPO report on effects of international legal protection for databases]

==Datamining==

'''The practice of sifting through large quantities of data, often in a database, to identify and make use of the patterns and details that emerge.'''

For example, consumer goods corporations mine the data generated by frequent shopper cards in order to better target advertisements. The company Google mines the data generated by the searches it performs to more accurately perform subsequent searches and to effectively target the advertisements that are alongside. Scientists mine the data generated by large-scale surveys of natural phenomena, whether astronomical observations or genetic codes.

Depending on the sort of data being mined, privacy issues can become a very real and important concern.

''Other resources:''

* [http://en.wikipedia.org/wiki/Data_mining Wikipedia article on data mining]
* [http://en.wikipedia.org/wiki/Cross_Industry_Standard_Process_for_Data_Mining Wikipedia article on data mining standards]
* [http://www.anderson.ucla.edu/faculty/jason.frand/teacher/technologies/palace/datamining.htm Article “What is Data mining?"]
* [http://www.dhs.gov/xlibrary/assets/privacy/privacy_rpt_datamining_200812.pdf PDF of US Legislature report on data mining]
* [http://www.allacademic.com/meta/p_mla_apa_research_citation/2/5/3/9/3/p253934_index.html Article “The Policy Tools of Securitization: Data Mining, EU Foreign and Interior Policies”]
* [http://ieeexplore.ieee.org/xpl/freeabs_all.jsp?arnumber=4053016 Report from the Sixth International Conference on Data Mining-Copyright]

==Derivative work==

'''A derivative work is one that adapts or modifies an existing work, drawing on that work for its substance and general material.'''

A film based on a novel is a derivative work of that novel. An action figure based on a character from an original film is a derivative work of the film.

A derivative work may or may not be copyrightable on its own, depending on how much original material it contains, and whether permissions were granted for the copied material. The U.S. copyright office says “To be copyrightable, a derivative work must be different enough from the original to be regarded as a new work or must contain a substantial amount of new material.”

For example, Alfred Bester’s novel'' The Stars My Destination ''is inspired by and modeled after Dumas’'' The Count of Monte Cristo. ''It is arguably a derivative work of that older novel. However, Bester's book clearly has sufficient original material to qualify for copyright protection on its own, and further, is original enough that it would not infringe copyright in Dumas’ book, were that book still protected by copyright. On the other hand, an independent screenwriter's new screenplay featuring the "Rocky" character made famous by Sylvester Stallone was found to be clearly a derivative work, in which no copyright could be had.

''See also: ''

* [[Glossary#.E2.80.9CFair_Use.E2.80.9D|Fair Use]]
* [[Glossary#Right_of_Adaptation|Right of Adaptation]]
* [[Glossary#Idea_.2F_Expression_Dichotomy|Idea / Expression Dichotomy]]

''Other resources:''

* [http://www.chillingeffects.org/derivative/ Chilling Effects webpage on derivative works]
* [http://www.chillingeffects.org/derivative/faq.cgi Chilling Effects FAQ on derivative works]
* [http://www.linuxjournal.com/article/6366 Computer industry article on derivative works]
* [http://www.copyright.gov/circs/circ14.pdf US Government circular on derivative works]
* [http://en.wikipedia.org/wiki/Derivative_work Wikipedia article on derivative works]
* [http://www.altlaw.org/v1/cases/1081598 Text of seminal US court decision on derivative works, ''Lee vs. A.R.T.'']

==DMCA==

'''The DMCA is the short name for the Digital Millennium Copyright Act.'''

The DMCA is copyright legislation that was passed in the United States in 1998. Its intended purposes were to bring U.S.copyright law more into harmony with international norms and to address many of the new concerns that digital technology and file-sharing raised. The DMCA contains the now-notorious anti-circumvention provisions, which made it illegal, even for a legitimate user, to avoid, break or disable any technological measures protecting content. It also created what are known as “safe harbors”, descriptions of behavior where Internet service providers could be certain they would not be legally liable for the actions of their users.

''See also:''

* [[Glossary#.E2.80.9CCease-and-desist.E2.80.9D_letter|"Cease and Desist" Letter]]
* [[Glossary#Circumvention|Circumvention]]
* [[Glossary#DRM|DRM]]
* [[Glossary#TPM_.E2.80.93_Technological_Protection_Measures|TPM]]
* [[Glossary#WIPO|WIPO]]

''Other resources:''

* [http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281: Text of the DMCA]
* [http://www.copyright.gov/legislation/dmca.pdf US Copyright Office’s explanation of the DMCA]
* [http://www.eff.org/issues/dmca EFF webpage on DMCA]
* [http://www.gseis.ucla.edu/iclp/wipo1.htm Text of WIPO treaty to which the DMCA responded]
* [http://www.chillingeffects.org/dmca512/faq.cgi Chilling Effects FAQs on DMCA]
* [http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act Wikipedia Article on DMCA]
* [http://news.cnet.com/2010-1071-825335.html News editorial on DMCA]
* [http://secondlife.com/corporate/dmca.php Second Life white paper on DMCA take-down notices]

==DRM==

'''DRM, or “Digital Rights Management” is a catch-all term for any technological measures, usually but not always software-based, that are put in place to protect copyrighted content.'''

DRM usually works by restricting access to the content in some way. DRM applies to all would-be users of the content, event those who have purchased it, or the right to access it, legally. Most DRM techniques are also easily circumvented by a technically adept and/or determined user. Therefore, DRM has the net effect of inconveniencing legitimate users, sometimes seriously, and being a minor inconvenience at best for professional criminal users. Additionally, certain forms of DRM can raise serious privacy concerns, as well as call into question the very idea of “ownership” of digital information.

For these reasons, DRM has been heavily criticized, and there may be a trend in the content industry away from its use. For example, after many complaints from users, iTunes and Amazon now offer DRM-free music downloads, and most of the major record labels have given up on DRM for digital music. However, the Recording Industry Of America, and the Motion Picture Industry of America have both said that they see DRM being part of their business models for the foreseeable future.

''Other resources:''

* [http://en.wikipedia.org/wiki/Digital_rights_management Wikipedia article on DRM]
* [http://mashable.com/2008/01/04/drm-officially-dead-as-even-sony-bmg-drops-it/ Article discussing DRM and its prospects]
* [http://news.cnet.com/8301-10784_3-9939189-7.html News article on DRM in music industry]
* [http://www.almaden.ibm.com/cs/people/hongxia-jin/DRM2009/ Webpage for international workshop on DRM]
* [http://www.eff.org/issues/drm EFF webpage on DRM]
* [http://en.wikipedia.org/wiki/Sony_BMG_CD_copy_protection_scandal Wikipedia article on Sony’s rootkit scandal]
* [http://www.npr.org/templates/story/story.php?storyId=102605547 US’s National Public Radio story on DRM]
* [http://www.techcrunch.com/2008/01/04/europe-wants-to-force-drm-interoperability/ Article on European DRM interoperability]

==Due diligence==

'''Due diligence refers to the level of effort someone must make in order to have fulfilled their legal duties in a particular situation.'''

It is the standard of care that person must exercise. In the copyright context, the term is most often encountered with respect to the necessary efforts a would-be user of content must make to locate the holder of the rights in a particular piece of content. This has become an important concept recently with respect to so-called ”orphan works” and the Google Book Search project.

''Other resources:''

* [http://en.wikipedia.org/wiki/Due_diligence Wikipedia article on due diligence]
* [http://www.panix.com/~checker/ccddc.htm An economist’s article on copyright reform]
* [http://www.legalmatch.com/law-library/article/due-diligence-for-copyright.html Short legal article on due diligence]
* [http://www.chinalawinsight.com/2009/02/articles/intellectual-property/copyright-due-diligence-investigations-in-china-legal-entity-work-or-occupational-work/ Chinese website’s analysis on due diligence in Chinese copyright law]
* [http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00245 Text of testimony to US Senate, concerning orphan works]
* [http://www.publicknowledge.org/issues/ow Public Knowledge’s page on orphan works]
* [http://www.copyright.gov/orphan/ US Copyright Office webpage on orphan works]

==Economic Rights==

'''The rights associated with copyright that allow the rights holder to exercise control over use of the work for economic benefit.'''

Economic rights include, among others, the right to make and sell copies, to perform the work publicly, and to prepare derivative works.

==EIFL==

'''A nonprofit organization that advocates for access to library resources across the world.'''

According to [http://www.eifl.net EIFL's website:]

''“EIFL is a not for profit organisation that supports and advocates for the wide availability of electronic resources by library users in transitional and developing countries.''

''"EIFL’s core activities are negotiating affordable subscriptions on a multi-country consortial basis, supporting national library consortia and maintaining a global knowledge sharing and capacity building network in related areas, such as open access publishing, intellectual property rights, open source software for libraries and the creation of institutional repositories of local content.

''The EIFL.net vision is to provide leadership and be a strong international advocate for expanded availability of electronic resources and to enhance the skills base of EIFL's library consortia, so that they are at the leading edge of developments. EIFL’s mission is to: (1) assist in the building of strong national consortia; (2) be the premier multi-country negotiator for securing affordable commercial electronic information services; (3) provide strong advocacy and support for the development and accessibility of local digital resources; (4) provide an effective central advisory and capacity building program in open access publishing, copyright and free and open source software for libraries (5) leverage multi-national expertise and resources to fulfill this mission; (6) provide top quality educational and consulting services; (7) be an advocate for the adoption and advancement of effective information distribution models; and (8) develop model partnerships with global funding agencies, foundations, consortial groups, and content providers.”''

==Exceptions and Limitations==

'''The exceptions and limitations to the otherwise exclusive rights of a copyright holder.'''

While copyright is usually conceptualized as the granting of a monopoly for a limited period of time, there are nearly always exceptions and limitations to the otherwise exclusive rights of a copyright holder. These can be statutory or customary, and represent uses for which a user need not get permission, or for which fees are preset, or something else that places limits on the monopoly of the copyright holder. These exceptions and limitations are often driven by public policy concerns.

“Fair use” in U.S. law and “fair dealing” in some other parts of the world, are classic examples of doctrines that place a limitation on the copyright holder’s monopoly. Any form of compulsory licensing would be another. Some exceptions are directed at particular classes of user, such as the exceptions pertaining to making copies for the disabled.

====Rule-based====

Rule-based exceptions are those whose qualities are described in specific detail, so that a particular use either does or does not qualify as an exception.

The Chaffee Amendment in U.S. Copyright law that exempts the making of copies for the disabled is an example of a rule-based exception.

====Guideline-based====

A guideline-based exception or limitation is one that sets forth one or more factors to consider when determining whether a particular use is fair, rather than hard and fast bright-line rules.

Any particular use must be evaluated on an individual basis to determine if it qualifies for the exception. For example, the “fair use” doctrine in U.S. law, which lists four non-exhaustive factors and partial list of suggested fair uses, is a guideline-based exception.

====Library exceptions====

Libraries are often treated as a special sub-class of users of copyrighted material because of the public nature of their mission and the strong public policy arguments in their favor. As such, they enjoy a unique set of exceptions and limits on copyright law in many countries. While the copyright law concerning libraries varies from country to country, there are some near-universal general exceptions for libraries.

====Preservation====

Libraries are frequently permitted to make copies of works in order to preserve them, or for archival purposes, without violating the copyright in those works.

This is in line with the traditional role of libraries as repositories of knowledge.

====Loaning====

Under certain circumstances, libraries are permitted to make copies of copyrighted works for the purpose of loaning them to patrons or to other libraries without violating the copyright in those works.

====Research====

Libraries are often permitted to make copies of copyrighted works for research purposes (whether their own or that of their patrons) without violating the copyright in those works.

''Other resources:''

* [http://en.wikipedia.org/wiki/Limitations_and_exceptions_to_copyright Wikipedia article on limitations and exceptions]
* [http://www.copyright.gov/1201/ US Copyright Office’s Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works]
* [http://www.resourceshelf.com/2009/05/27/statement-of-principles-on-copyright-exceptions-and-limitations-for-libraries-and-archives/ International Federation of Library Associations Statement of Principles on exceptions and limitations]
* [http://wiki.ocwconsortium.org/index.php?title=Copyright_Exceptions_and_Limitations Open Courseware Consortium’s wiki on exceptions and limitations]
* [http://www.ifrro.org/upload/documents/WIPO%20SCCR%20Joint%20Position%20_1029%202008_%20EN.pdf PDF of IFRRO's joint position on exceptions and limitations – statement to WIPO]
* [http://www.ifla.org/en/publications/statement-of-principles-on-copyright-exceptions-and-limitations-for-libraries-and-archi IFLA Statement of Principles on Copyright Exceptions and Limitations for Libraries and Archives]
* [http://lawprofessors.typepad.com/law_librarian_blog/2009/05/drm-and-copyright-exceptions-for-libraries-empirical-assessment-of-article-64-of-the-information-soc.html Law professors’ blog analysis “DRM and Copyright Exceptions for Libraries: Empirical Assessment of Article 6(4) of the Information Society Directive”]
* [http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192 WIPO study on exceptions]
* [http://www.eifl.net/cps/sections/news/press-area/2008-10-29 eIFL press release on exceptions and limitations]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1415012 Kenneth Crews study on limitations and exceptions]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1415012 Copyright Alliance Statement on exceptions and limitation]

==“Fair Use”==

'''A tenet of U.S. copyright law that describes the circumstances under which one can sometimes make use of protected works without first getting permission or paying the rights holder.'''

Fair use is a tenet of U.S. copyright law, found in 17 U.S.C. section 107. It is often referred to as a “safety valve” for free speech, and is one of the two aspects of U.S. copyright law that help to prevent copyright’s monopoly from interfering with freedom of speech, another important U.S. right enshrined in the U.S. Constitution. (The other aspect of U.S. copyright law that seeks to balance the copyright monopoly against the public's interest in free speech is the idea/expression dichotomy.)

Fair use is a set of guidelines, rather than a rule, and is evaluated on a case-by-case basis according to four non-exclusive factors. These are:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit 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;

The effect of the use upon the potential market for, or value of, the copyrighted work .

Because of its status as a "safety valve" for speech, fair use is often called upon or relied on by content users attempting to assert their rights under copyright law. However, because fair use is not clearly defined and can be hard to interpret, and because a copyright lawsuit can be extremely expensive, many users are scared or reluctant to rely on fair use when they use copyrighted works. This, in turn, has led to an effort by some groups to “reclaim fair use” for the public, and prevent what author Lewis Hyde has called “the third enclosure” of the common, that of the mind.

''Other resources:''
* [http://www.copyright.gov/fls/fl102.html US Copyright Office page on fair use]
* [http://www.law.cornell.edu/uscode/17/107.shtml Text of US law on fair use]
* [http://fairuse.stanford.edu/ Stanford University Libraries’ Fair Use page]
* [http://www.centerforsocialmedia.org/resources/fair_use/ Center for Social Media’s fair use section]
* [http://w2.eff.org/IP/eff_fair_use_faq.php EFF page on fair use]
* [http://cyber.law.harvard.edu/research/freedomtoteach Berkman Webpage for “Freedom To Teach” about fair use in teaching]
* [http://www.nytimes.com/2008/11/16/magazine/16hyde-t.html?partner=permalink&exprod=permalink NY Times article on Freedom to Teach founder Lewis Hyde]
* [http://en.wikipedia.org/wiki/Fair_use Wikipedia article on fair use]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=875384 Academic paper on fair use "Google Book Search: Fair Use, Fair Dealing and the Case for Intermediary Copying"]

==“Fair Dealing”==

'''The term used in the United Kingdom and other Commonwealth nations to describe the circumstances under which one can use copyrighted works without payments or permission.'''

Somewhat similar to the concept of “fair use” in the United States, “fair dealing” is found in many common law jurisdictions, such as Canada, Australia, New Zealand and others. Unlike fair use, which is a set of guidelines, fair dealing in most countries is limited specific categories of use. If a particular use falls into one of these categories, a court will ascertain whether, on balance, it should be considered "fair." It is usually considered somewhat more predictable but also somewhat less flexible than the concept of “fair use” employed in the United States.

''Other resources:''

*[http://www.copyright.org.au/pdf/acc/infosheets_pdf/g079.pdf Australian Copyright Council document on fair dealing]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=875384 Academic paper "Google Book Search: Fair Use, Fair Dealing and the Case for Intermediary Copying"]
* [http://www.economicexpert.com/a/Fair:dealing.htmlAustralian analysis of fair dealing]
*[http://www.ukoln.ac.uk/services/elib/papers/pa/fair/ UK fair dealing guidelines]
* [http://davidakin.blogware.com/blog/_archives/2009/7/31/4274099.html Canadian blog analysis of fair dealing]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1014404 Academic paper "Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use"]
* [http://www.myitlawyer.com/2009/fair-dealing-exceptions-in-uk-copyright-law/ Lawyer’s discussion of UK fair dealing]
* [http://en.wikipedia.org/wiki/Fair_dealing Wikipedia article on fair dealing]

==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.

''Other resources:''

* [http://en.wikipedia.org/wiki/First-sale_doctrine Wikipedia article on first sale]
* [http://en.wikipedia.org/wiki/Exhaustion_of_rights Wikipedia article on exhaustion of rights]
* [http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/Exhaustion%20of%20rights%20article.htm Canadian discussion of exhaustion of rights]
* [http://williampatry.blogspot.com/2005/05/is-there-hole-in-first-sale-doctrine.html William Patry blog entry on first sale and possible exceptions]
* [http://www.bc.edu/bc_org/avp/law/st_org/iptf/headlines/content/1998040801.html US law journal article discussing US Supreme Court decision on first sale]
* [http://cyber.law.harvard.edu/media/uploads/81/iTunesWhitePaper0604.pdf PDF of Berkman Center paper on first sale and iTunes]
* [http://www2.warwick.ac.uk/fac/soc/law/elj/eslj/issues/volume2/number2/papadopoulos.pdf Article on first sale doctrine in international intellectual property law]
* [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML EU directive referencing first sale]
* [http://books.google.com/books?id=LvRRvXBIi8MC&pg=PA50&lpg=PA50&dq=first+sale+doctrine+WIPO&source=bl&ots=V9cyaBflUR&sig=Z8H_gM2A8BAZEmLSDRC9g6BMZQc&hl=en&ei=gxt3SojMKIKntgfr4M2WCQ&sa=X&oi=book_result&ct=result&resnum=6#v=onepage&q=&f=false Google Book: WIPO guide on the licensing of copyright and related rights]

==Fixation==

'''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.

''Other resources:''

* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1010937 US law review article "To Fix, or Not to Fix: Copyright's Fixation Requirement and the Rights of Theatrical Collaborators"]
* [http://en.wikipedia.org/wiki/Canadian_copyright_law#Fixation Wikipedia article on Canadian fixation requirements]
* [http://www.copyright.gov/title17/92chap11.html Text of US law on fixation: 17 USCA 1101]
* [http://books.google.com/books?id=hI8kN17SrEsC&pg=PA169&lpg=PA169&dq=copyright+fixation&source=bl&ots=RF48eIxcrK&sig=36ACkVr6WqJbnnw5DDsHCvDoQwc&hl=en&ei=hR53SsipEpyntgfjodGWCQ&sa=X&oi=book_result&ct=result&resnum=9#v=onepage&q=copyright%20fixation&f=false Google Book excerpt: from Principles of Intellectual Property Law by Catherine Colston]
* [http://books.google.com/books?id=MIIOdtjZLCkC&pg=PA144&lpg=PA144&dq=copyright+fixation&source=bl&ots=Jthqw8uLaY&sig=rwyzzz8JlMC3wYAnQhHdmyKLE4Q&hl=en&ei=CCB3SqHJH6KltgeNzOGWCQ&sa=X&oi=book_result&ct=result&resnum=2#v=onepage&q=copyright%20fixation&f=false Google Book excerpt: Research Handbook on Future of EU Copyright by Estelle Derclaye]
* [http://www.gillhams.com/dictionary/368.cfm English law firm’s explanation of fixation]

==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.

''Other resources:''

* [http://www.trade.gov/fta/index.asp Webpage with list of resources on FTAs]
* [http://www.export.gov/fta/ US government website on FTAs]

==GNU-GPL license==

'''The GNU-GPL license is an open source software license.'''

One of the most well known symbols of the free software movement, which is sometimes called FOSS, for “Free open source software”. GNU is an open source operating system, upwardly compatible with Unix.

Richard Stallman started working on GNU at MIT in 1984, and founded the Free Software Foundation in 1985 to help his efforts. When GNU was incorporated with the Linux kernel, the combination became the GNU/Linux system, now found in various different software distributions.

GPL stands for “General Public License”. GPL licenses must contain what are referred to as the ”four freedoms”, which are:

* The freedom to run the program, for any purpose (freedom 0).

* The freedom to study how the program works, and change it to make it do what you wish (freedom 1). Access to the source code is a precondition for this.

* The freedom to redistribute copies so you can help your neighbor (freedom 2).

* The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this.

A program is free software if users have all of these freedoms.

''Other resources:''

* [http://www.gnu.org/copyleft/gpl.html GNU’s webpage on GPL licenses]
* [http://creativecommons.org/licenses/GPL/2.0/ Creative Commons webpage on GPL]
* [http://www.opensource.org/licenses/gpl-license.php Opensource’s page on GPL]
* [http://www.linux.org/info/gnu.html Linux.org’s page on GNU]
* [http://en.wikipedia.org/wiki/GNU_General_Public_License Wikipedia article on GNU/GPL]

==HADOPI==

'''A slang term for recent French legislation [2008-09] designed to regulate Internet usage in accordance with existing French copyright law.'''

“HADOPI” is an acronym referring to the name of the French government agency that would be created by the bill, the High Authority for Copyright Protection and Dissemination of Works on the Internet.

The HADOPI law was the subject of intense lobbying, both for and against it, and became notorious for its so-called “three strikes provision” and for the fact that in its original form, it provided that an Internet user could be sanctioned after having only been ''accused'' of copyright infringement. Although the law eventually passed, the French high court later stuck down this part of the bill as unconstitutional. Soon afterwards, techophile enthusiasts demonstrated that it would be technologically feasible to disguise Internet usage in a way that would call the laws basic effectiveness into question.

''Other resources:''

* [http://en.wikipedia.org/wiki/HADOPI_law Wikipedia article on HADOPI]
* [http://www.eff.org/deeplinks/2009/06/three-strikes-dead-in-france EFF discussion of French “three-strikes”]
* [http://fr.wikipedia.org/wiki/Loi_Cr%C3%A9ation_et_Internet French Wikipedia article on the HADOPI law]
* [http://www.betanews.com/article/French-Assembly-passes-three-strikes-HADOPI-law/1242172150 News article on HADOPI law]
* [http://torrentfreak.com/hackers-undermine-piracy-evidence-with-hadopi-router-090709/ Article on possible flaws in HADOPI’s provisions]
* [http://www.maitre-eolas.fr/post/2009/06/18/1452-hadopi-2-le-gouvernement-envisage-le-recours-a-l-ordonnance-penale French article on HADOPI]
* [http://www.flickr.com/photos/st3f4n/3522802951/ Flickr page discussing HADOPI]
* [http://www.ip-watch.org/weblog/2009/07/21/entangled-in-amendments-hadopi-2-hits-summer-break/ IP-Watch article on HADOPI]
* [http://wendy.seltzer.org/blog/archives/2009/06/12/hadopi-3-strikes-law-gets-its-own-strike.html Wendy Seltzer on HADOPI]
* [http://recordingindustryvspeople.blogspot.com/2009/06/french-3-strikes-law-hadopi-ruled.html US Lawyer specializing in music copyright and P2P filesharing discusses HADOPI]

==(legal) Formalities==

'''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.

''Other resources:''

* [http://www.bitlaw.com/copyright/formalities.html Article on formalities]
* [http://itlaw.wikia.com/wiki/Copyright_formalities Legal wiki’s page on formalities]
* [http://www.laboratorium.net/archive/2009/01/02/an_informal_rant_about_formalities US law professor James Grimmelmann discusses formalities]
* [http://nymusiccopyright.org/copyright/formalities Web page on formalities]
* [http://www.eric.ed.gov/ERICWebPortal/custom/portlets/recordDetails/detailmini.jsp?_nfpb=true&_&ERICExtSearch_SearchValue_0=ED291401&ERICExtSearch_SearchType_0=no&accno=ED291401 Cost benefit analysis of US copyright formalities]
* [http://cyberlaw.stanford.edu/node/5688 Stanford Center For Internet and Society’s discussion of Canadian formalities]

==Idea / Expression Dichotomy==

'''The concept that ideas cannot be copyrighted, but their particular expression can.'''

The idea / expression dichotomy is fundamental in copyright law. For example, the particular text of Stephenie Meyer’s “Twilight” series of vampire novels is protected by copyright, but the idea of a girl falling in love with a vampire cannot be protected.

While this may seem obvious or self-evident, the line between the two is not always so easy to find, and aggressive rights-holders continue to try to push the limits of to what they can claim copyright. For example, in the U.S. case Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., Inc., the holder of the rights to the intellectual property making up the James Bond character successfully sued an automobile company for an advertisement they had aired. MGM claimed that the ad’s content was sufficiently similar to or evocative of, James Bond, that it had infringed, although no actual copying took place.

'In U.S. law, idea / expression is usually held up, along with fair use, as a “safety valve” that prevents the monopolies granted by copyright from interfering with public policy, freedom of speech, and more.

Under certain circumstances, courts have held that there are a limited number of ways in which to express a particular idea (such as the rules for lotteries or sweepstakes) and that therefore, no copyright can be held in those materials. This is known as the “merger” doctrine.

''Other resources:''

* [http://en.wikipedia.org/wiki/Idea-expression_divide Wikipedia article on idea/expression]
* [http://www.edwardsamuels.com/copyright/beyond/articles/ideapt1-20.htm US law review article: "The Idea-Expression dichotomy in copyright law]
* [http://www.techdirt.com/articles/20090629/0317365399.shtml Technology blog article on idea/expression]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=418685 Canadian law review article "A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law"]
* [http://books.google.com/books?id=Vu5n-ARorC0C&pg=PA20&lpg=PA20&dq=idea+expression+dichotomy&source=bll&ots=PaIFoQa1-v&sig=zLHpSQLKGOgqxAR5vdqr78e1e1g&hl=en&ei=7Uh4SsSlBpyltgeWvN2WCQ&sa=X&oi=book_result&ct=result&resnum=11#v=onepage&q=idea%20expression%20di&f=false Google Book excerpt on idea/expression from "Copyright Exceptions: the digital divide" by Robert Burrell and Alison Coleman]
* [http://www2.bc.edu/~yen/FirstAmendPer.html US law review article "A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in A Work's Total Concept and Feel"]
* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=471&invol=539 Text of US Supreme court case discussing idea/expression - Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539]

==IFLA ==

'''International Federation of Library Associations and Institutions'''

According to the [http://ifla.org IFLA website], “The International Federation of Library Associations and Institutions (IFLA) is the leading international body representing the interests of library and information services and their users. It is the global voice of the library and information profession.”

==IFRRO==

'''The International Federation of Reproduction Rights Organisations'''

“The International Federation of Reproduction Rights Organisations (IFRRO) is an independent organisation established on the basis of the fundamental international copyright principles embodied in the Berne and Universal Copyright Conventions. Its purpose is to facilitate, on an international basis, the collective management of reproduction and other rights relevant to copyrighted works through the co-operation of national Reproduction Rights Organisations (RROs). Collective or centralised rights management is preferable where individual exercise of rights is impractical.

IFRRO through its members supports creators and publishers alike and provides internationally a common platform for them to foster the establishment of appropriate legal frameworks for the protection and use of their works.

IFRRO works to increase on an international basis the lawful use of text and image based copyright works and to eliminate unauthorised copying by promoting efficient Collective Management of rights through RROs to complement creators' and publishers' own activities.”

''Other resources:''

* [http://www.ifrro.org/ IFRRO website]

==Incentives==

'''The aspects of copyright law designed to motivate creators to create.'''

Copyright law grants to the rights-holder, for a limited time, a monopoly over uses of the copyrighted work. Since monopolies are usually considered inefficient, the justification for doing this is usually described as providing the necessary incentives to creators to get them to create. That is, without the incentive of being able to benefit economically by exploiting control of the work, why would an artist create? This is often called the economic theory of creator incentives, or something similar. The assumption is that there is a net gain for society. For example, the Copyright clause of the U.S. Constitution reads “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The incentive driven view of copyright and creation has come under some criticism for failing to take into account the many different motivations artists have for creating their work, some of which are not financial at all. Other critics point out that even if incentive theory is accurate, extremely long copyright terms do not increase the economic or monetary value of copyright, arguing against term extensions.

''Other resources:''

* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=876910 US law review article "The Internet, Creativity and Copyright Incentives"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1134035 US law review article "The Pope's Copyright? Aligning Incentives with Reality by Using Creative Motivation to Shape Copyright Protection"]
* [http://www.harvardlawreview.org/issues/122/april09/balganesh.shtml US law review article "Foreseeability and Copyright Incentives"]
* [http://madisonian.net/2007/08/09/ipsc-at-depaul-loren-on-copyrights-needless-incentives/ US legal academic blog entry discussing paper from #3 above]
* [http://www.paulschwartz.net/pdf/SchwartzFINAL.pdf US law review article "Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property"]
* [http://www.law.cornell.edu/supct/pdf/01-618P.ZD1 US Supreme court Justice Breyer's dissenting opinion in ''Eldred v. Ashcroft'']
* [http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/constitutionality.html Affidavit of Dean of the School of Information Management and Systems at the University of California, Berkeley, in ''Eldred v. Ashcroft'']
* [http://williampatry.blogspot.com/2008/05/forseeability-and-copyright-incentives.html One of many blog entries on incentives from renowned US copyright legal scholar William Patry]

==Intellectual Effort==

'''Literally, an effort of the mind, as opposed to a physical effort. The phrase is often synonymous with “creativity”.'''

In copyright law, this concept is important because not everything qualifies for copyright protection. Most importantly, simply having spent a lot of time and energy on something is not usually enough to qualify for copyright. However, in recent legislation, databases of facts have received protection solely by virtue of the effort that went into them.

Each jurisdiction has a different set of criteria as to what may receive copyright. The U.S. requires that the work be the result of creative input, but has a very low threshold for creativity. The U.S. also requires that the work be fixed in a tangible form. Italian law, for example, states things a little differently, and states that a work must involve an intellectual effort and possess creative character.

''See also:''

* [[Glossary#.E2.80.9CSweat_of_the_brow.E2.80.9D|"Sweat of the Brow"]]

==Infringement==

'''Violation without justification or excuse of one or more of the exclusive rights in a work granted by copyright law.'''

For example, if a copy of a book, song, or computer program is made, or a song or play performed without permission, the copyright in that work has been infringed. What sort of infringement has taken place depends on the level of knowledge and involvement of the infringer.

====Direct====

'''Direct infringement takes place when a person who is not the rightsholder performs or engages in one of the activities that the copyright holder has the exclusive right to perform.'''

Direct infringment is the most common kind of infringement, and takes place whenever a user violates any of the rights granted to a copyright holder.

“A plaintiff must meet two requirements to establish a prima facie case of copyright infringement: (1) ownership of the allegedly infringed material and (2) violation by the alleged infringer of at least one of the exclusive rights granted to copyright holders.” -- LGS Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150, 1156 (9th Cir. 1996)

For example, if a copy has been made without permission, that is direct infringement.

====Indirect /secondary====

'''These are two types of of infringement that take place in conjunction with direct infringement. '''

NOTE: There can be no indirect or secondary infringement without a concurrent act of direct infringement. An act qualifies as a particular type of infringement according to the knowledge, intent and abilities of the infringer.

====Contributory====

'''A contributory infringer has knowledge of the related direct infringement, i.e. that it is taking place; and must make a material contribution to it in some way.'''

Examples of contributory infringement would be a CD factory owner who knows that his machines are being used to make illegal copies of protected works, or someone who provides software tools for cracking encryption regimes.

====Vicarious====

''' A vicarious infringer is one who, while not deliberately encouraging or materially contributing to the direct infringement, has the right and ability to control or prevent infringement, and benefits from it, even if he or she does not realize the infringement is taking place.'''

Vicarious infringment is roughly akin to “you should have known infringement was taking place, and done something about it.

A club owner who hires performers who then play protected works without permission to do so, and without the owner’s knowledge, is vicariously infringing. The owner herself is not infringing, or helping the performer to do so, but she could make sure of the performer’s licensing, and she is indirectly profiting from the infringement, because of the revenues from patrons of the club. Another example would be someone who runs an outdoor market, renting stalls to vendors. If a particular vendor is selling infringing goods, the market owner is vicariously infringing. (For a classic example in US law, see Fonovisa Inc. v. Cherry Auction, Inc., 847 F.Supp. 1492 (E.D. Cal. 1994).

====Inducement====

'''The idea that someone might not only make the means of infringement possible, but might encourage others to infringe, even if the inducer is not profiting, either directly or indirectly.'''

Inducement was perhaps made most famous by the US case ''M.G.M. v Grokster''. In the Grokster case, the court found Grokster liable for indirect infringement, because it had actively induced others to directly infringed, regardless of any substantial non-infringing use of the Grokster technology. This was in contrast to the Sony v Betamax decision in the 1080’s which found video recorders non-infringing because they could be used in non-infringing ways, and because Sony had not encouraged infringing uses.

''Other resources:''

* [http://www.chillingeffects.org/piracy/faq.cgi Chilling Effects webpage on "piracy"]
* [http://www.chillingeffects.org/dmca512/question.cgi?QuestionID=268 chilling Effects FAQ on DMCA Section 512]
* [http://www.quizlaw.com/copyrights/what_is_contributory_infringem_1.php "Law for non-lawyers" website's page on contributory infringement]
* [http://www.quizlaw.com/copyrights/what_is_vicarious_infringement.php "Law for non-lawyers" website's page on vicarious infringement]
* [http://itlaw.wikia.com/wiki/Vicarious_copyright_infringement Technology wiki on contributory infringement]
* [http://cyberlaw.stanford.edu/packets002913.shtml Stanford Center for Internet & Society's page discussing a US case on indirect infringement]
* [http://www.benedict.com/Digital/Internet/Fonovisa/Fonovisa.aspx Copyright website's discussion of Fonovisa v Cherry Auction]
* [http://www.allacademic.com//meta/p_mla_apa_research_citation/1/7/1/7/6/pages171767/p171767-1.php Academic paper: "The Inducement Theory in Post-Grokster: Arista Records v. Flea World; UMG v. Bertelsmann"]
* [http://www.yarbroughlaw.com/Publications/pubs%20patent4%20indirect%20infringement%20of%20copyright.htm US lawyer's discussion of indirect infringement]
* [http://en.wikipedia.org/wiki/Contributory_copyright_infringement Wikipedia article on copyright infringement]
* [http://digital-law-online.info/lpdi1.0/treatise14.html US copyright website's page on infringement]
* [http://www.ipo.org/AM/Template.cfm?Section=Copyright&Template=/CM/ContentDisplay.cfm&ContentID=17825 Chinese law review article (in English): "Analysis & Solution for Indirect Infringing Liability of Developers of P2P File Sharing Software"]
* [http://www.becker-posner-blog.com/archives/2005/07/grokster_file_s.html US law professors' blog entry on infringement and ''Grokster'']
* [http://www.legallanguage.com/legal-articles/clarida008/ Article on Internet-based contributory infringement]
* [http://works.bepress.com/jamie_gregorian/1/ Academic paper: "Grokster, BitTorrent, Copyright Infringement, and Inducement: How Modus Operandi Can Provide a Functional Standard for Future File-Sharing Cases"]
* [http://www.cdt.org/files/pdfs/20061010streamcast.pdf Center for Democracy & Technology�s initial ''Grokster'' analysis]
* [http://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,_Ltd. Wikipedia article on ''MGM v Grokster'' case]
* [http://www.foley.com/publications/pub_detail.aspx?pubid=3398 US law firm article: "The Grokster Inducement Test For Secondary Copyright Infringement Liability"]

==Lex loci delicti==
'''Literally, "the law of the place of the wrongdoing"

The full term is '' lex loci delicti commissi.''

This concept comes up when discussing a tort or crime that takes place in multiple legal jurisdictions. In such a scenario, a court will have to decide which jurisdiction's laws apply. ''Lex loci delicti'' refers to the laws that apply in the place where the crime, copyright infringment for our purposes, was actually committed, rather than where the rightsholder lives, or where the right to the work were first received, etc.

''See also:''

* [[Glossary#Choice_of_Laws|Choice of Laws]]

''Other resources:''

*[http://en.wikipedia.org/wiki/Lex_loci_delicti_commissi Wikipedia article on ''Lex loci delicti'']

==License==

'''A license is a form of contract whereby a rights-holder grants permission to a person or entity to make use of a copyrighted work in some way.'''

Licenses can be quite specific, granting permission for only one particular kind of use, and for a limited time, or they can be comprehensive. They may be open source, or restrictive. They may or may not be transferable to others. Licenses have always been part of copyright law, but have come to greater prominence recently with their extensive use in conjunction with computer software.

====Model License====

A license that does not refer to any particular copyrighted work, or to specific parties, but is instead presented as an example of the license in general.

The model license can then be modified according to circumstances. For example, Creative Commons, which offers six different types of license, makes model versions of each available.

====Blanket License====

See [[Glossary#Blanket_license|Blanket License]].

====Compulsory License====

See [[Glossary#Compulsory_License|Compulsory License]].

====Institutional License====

'''A license granted to an institution, such as a library or school, rather than an individual.'''

An institutional license’s terms are predicated on the idea that the institution will be serving many different users, under a wide variety of circumstances, and that from a transaction costs perspective, it is far more efficient for all concerned to negotiate terms only once. For example, most, if not all, universities have institutional licensing agreements with the various collective management agencies for the performance of musical works. Many libraries, whether public or academic, have institutional subscriptions to commercial or academic databases, under which any patron of the library may access the database without having to negotiate personal access.

====Individual License====

'''An individual license is a license granted to a single person.'''

Individual licenses can be negotiated for any sort of copyrighted work, but are probably most often seen in the software context, where before using purchased software, a user must agree to the licensing terms.

====(non) Exclusive License====

'''An exclusive license is one granted to the holder only.'''

If a license is exclusive, it means that no other similar license will be granted. For example, a rights-holder in the United States might grant an exclusive license to someone in Germany to be the sole distributor of the copyrighted work in Germany, or vice versa. A non-exclusive license is just the opposite. A person with such a license knows that many others may have been granted the exact same rights. For example, when a person purchases software, he knows that he is not the only one who has eben granted permission to use that software.

'''Other Resources'''

* [http://www.bitlaw.com/copyright/license.html Legal information website's page on licenses]
* [http://creativecommons.org/about/licenses Creative Commons' licenses page]
* [http://en.wikipedia.org/wiki/Category:Copyright_licenses Wikipedia meta-page on copyright licenses]
* [http://www.copyright.gov/circs/circ75.pdf US Government's publication on licenses]
* [http://www.ivanhoffman.com/transfer3.html US lawyer discusses the right to transfer copyright licenses]
* [http://www.techdirt.com/articles/20090628/1626125387.shtml Technology blog's discussion of licensing controversy]
* [http://en.wikipedia.org/wiki/Compulsory_license Wikipedia page on compulsory licenses]
* [http://www.copyright.gov/circs/circ73.pdf US Government's circular on compulsory licensing for phonorecords]
* [http://www.cptech.org/blogs/cl4copyright/ Blog devoted to compulsory licenses]
* [http://www.artistshousemusic.org/videos/explaining+the+compulsory+license+clause Video with US lawyer explaining compulsory licenses]
* [http://muse.jhu.edu/about/subscriptions/license_review.html An example of institutional license agreement]
* [http://www.lib.uconn.edu/copyright/modelagreements.html University of Connecticut Libraries' webpage on licenses]
* [http://www.eff.org/wp/better-way-forward-voluntary-collective-licensing-music-file-sharing EFF white paper on voluntary collective licensing]
* [http://w2.eff.org/share/legal.php EFF page on P2P filesharing and licensing]
* [http://bandfoundry.draftlight.net/resources/copyright/license_types.php Music blog's discussions of licensing in music]
* [http://thepcweb.com/?p=358 Computer sciences blog page on software licenses]

==Material breach (of a contract)==

'''A violation of a contract serious enough that the person harmed may compel performance and collect damages, and/or terminate the contract.'''

A contract is fundamentally a list of terms to which the parties have agreed – things each party has agreed to do or not do. However, no contract, no matter how complex or carefully written, can foresee every possible eventuality. Therefore, it will sometimes happen that a party to a contract will violate one or more of the contract’s terms. Sometimes the breach will be deliberate, sometimes accidental, sometimes driven by circumstance. The question that arises, in the case of a breach, is what will be done about the violation.

Typically, minor violations of a contract mean only that the person harmed by the violation can collect only actual damages. If the breach is sufficiently immaterial these damages may well be zero.

However, substantial violations, which are also known as material breaches, are a different story. They are material breaches because the breached clauses fundamentally matter to the contract. Such breaches typically mean that the injured party can legally compel performance of the contract in addition to collecting damages. Of course, a particular contract may contain specific provisions for what will happen in the case of a material breach.

''Other resources:''

* [http://en.wikipedia.org/wiki/Breach_of_contract Wikipedia article on breach of contract]
* [http://www.constructionbusinessowner.com/topics/law/understand-material-breach-of-contract.html Construction industry website's page on material breach]
* [http://www.chicagobusinesslitigationlawyerblog.com/2009/05/material_breach_of_contract_in.html Chicago law firm's discussion of Illinois court's material breach ruling]
* [http://research.lawyers.com/glossary/material-breach.html Lawyer.com's definition of material breach]

==Monopoly==

'''A monopoly is exclusive control over a particular resource.'''

A copyright in a particular work can usefully be conceived of as a monopoly over that work and its uses, albeit for a limited time.

Economic theory typically sees most monopolies as inefficient uses of resources. These inefficiencies are harm to the public good. This harm is justified in copyright law by claiming that the incentives a monopoly provides to would-be creators balance it out. However, this view of things is being challenged more and more in recent years by critics who feel that copyright terms are too long, or that creators have motivations other than monetary reward.

''See also:''

* [[Glossary#Incentives|Incentives]]
* [[Glossary#Commons|Commons]]

''Other resources:''

* [http://www.againstmonopoly.org/index.php?perm=593056000000001200 "Against Monopolies" page on copyright's 'Catch-22']
* [http://www.open-spaces.com/article-v2n1-loren.php Law review article "The Purpose of Copyright"]
* [http://www.newswise.com/articles/view/549822/ Article discussing economists' criticism of copyright monopolies]
* [http://www.hackvan.com/pub/stig/etext/fair-use/mocking-the-monopoly-of-copyright.txt Article: "Mocking the Monopoly of Copyright"]
* [http://books.google.com/books?id=209GwCq-ATgC&pg=PA118&lpg=PA118&dq=monopoly+in+copyright+law&source=bl&ots=JYihE-5gK7&sig=Ws93FguDmc79hJ1AMk_i-IUySfM&hl=en&ei=kmd4SsiCI4extgfGrdmWCQ&sa=X&oi=book_result&ct=result&resnum=6#v=onepage&q=&f=false Google Books excerpt: The Economics of copyright – Wendy Gordon &Richard Watt]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1123575 Academic article: "Natural Monopolies in Antitrust, Patent, and Copyright Law: The Essential Facilities, Reverse Doctrine of Equivalents, and Originality Doctrines as Triggers for a Compulsory Licensing Remedy"]

==Moral Rights==

'''Broadly speaking, the set of rights in a work that give control over the existence or fate of a work, rather than over its economic exploitation.'''

Moral rights (a translation of the French concept “droit moral”) in a creative work are the corollary to the economic rights. They represent the rights in a work that are inherent in its status as a creative work and in its relationship with its creator. While they are statutorily reinforced, they typically are thought of as existing on their own. That is, they are much closer to being “natural” rights. Perhaps because of the nature of the rights, they are more often associated with visual works, such as painting or sculpture, than with “informational” works, such as texts.

The Berne Convention explicitly recognizes moral rights, but U.S. law does not officially recognize moral rights, which is an ongoing source of tension between U.S. law and that of other Berne Convention members. The U.S, maintains that its laws have sufficient provisions in place, such as the Visual Artists Rights Act, to accommodate moral rights.

Article 6bis (1) of the Berne convention reads:

“ (1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

The enumeration of moral rights varies from country to country, but they are most often listed as:

* The right of paternity -- to claim authorship (or disclaim it, in the event of unauthorized change).

* The right of integrity -- to approve of or object to any modification, distortion or change to the work.

* The right of withdrawal -- to remove a work from the public sphere at will.

* The right of release -- the right to control when a work is seen by the public.

''Other resources:''

* [http://cyber.law.harvard.edu/property/library/moralprimer.html Berkman Center webpage "Moral Rights Basics"]
* [http://en.wikipedia.org/wiki/Moral_rights_(copyright_law) Wikpedia page on Moral Rights]
* [http://www.rbs2.com/moral.htm Essay; "Moral Rights of Authors in the USA"]
* [http://www.copyright.gov/reports/exsum.html US Government document "Waiver of Moral Rights in Visual Artworks"]
* [http://www.vlaa.org/assets/documents/VARA.pdf PDF "Artists Guide to the Visual Artists Rights Act: understanding your (limited) rights"]
* [http://www.californialawreview.org/articles/against-moral-rights US law review article: "Against Moral Rights"]
* [http://www.ariadne.ac.uk/issue4/copyright/ Essay: Moral Rights and the electronic library"]
* [http://copyright.columbia.edu/node/50 MP3 file "The Five Exclusive Rights and Moral Rights"]
* [http://www.allacademic.com/meta/p_mla_apa_research_citation/1/8/5/3/2/p185328_index.html Academic paper: "Authorship and the Debate on Moral Rights in the Digital Environment"]
* [http://www.austlii.edu.au/au/journals/ILB/2001/11.html Australian law review article: "Berne, Baby, Berne: The Berne Convention, Moral Rights and Indigenous Peoples’ Cultural Rights"]
* [http://www.infotoday.com/IT/jan02/ardito.htm Legal column: "Moral Rights for Authors and Artists "]
* [http://www.megalaw.com/top/copyright/copyrightmoral.php Large list of links to resources on Moral Rights]

==Mortenson Center==

'''The Mortenson Center for International Library Programs'''

The Center was founded in 1991 at the University of Illinois at Urbana-Champagne.

According to [http://www.library.illinois.edu/mortenson/ its website], “The Mortenson Center and the Mortenson Distinguished Professorship seek to strengthen international ties among libraries and librarians, regardless of geographic location or access to technology.”

Individuals at the Mortenson Center participated in the initial testing of this curriculum.

==Neighboring Rights==

'''The rights of people who have participated in the creation of a copyrighted work, but who did not “write” it, and for a variety of reasons do not normally qualify for traditional forms of copyright.'''

Neighboring rights are copyrights that exist adjacent to more traditional author’s copyrights, and are granted to a few specific categories of person. The term most often refers to. Examples might include the sound engineers at a recording studio, the performers of a musical composition, or a broadcast organization.

Neighboring rights as such do not exist in all copyright law systems. Some jurisdictions subsume them within “copyright” in general without treating them as any different.

As just one example, the Rome Convention explicitly addresses the rights of performers and producers of sound recordings.

''See also:''

*[[Glossary#Rome_Convention|Rome Convention]]

''Other resources:''

* [http://www.wipo.int/export/sites/www/tk/en/laws/pdf/tanzania_copyright_1999.pdf PDF of 1999 Tanzanian Copyright and Neighboring Rights Act]
* [http://www.esa.int/esaMI/Intellectual_Property_Rights/SEMQPQL26WD_0.html European Space agency's page on copyright and neighboring rights]
* [http://en.wikipedia.org/wiki/Related_rights Wikipedia article on "related rights"]
* [http://www.sunsonline.org/trade/areas/intellec/12230096.htm 1996 article "WIPO: Copyright, Neighboring Rights in the Digital Age"]
* [http://archive.ifla.org/III/clm/p1/ilp.htm IFL document "Limitations and Exceptions to Copyright and Neighbouring Rights in the Digital Environment: An International Library Perspective]
* [http://www.ccaaa.org/copyright.shtml CCAAA statement on copyright and neighboring rights at the 13th session of the Standing Committee on Copyright and Related Rights, WIPO, Geneva, 21st-23rd November 2005]
* [http://portal.unesco.org/culture/en/files/30671/11443368003faq_en.pdf/faq_en.pdf UNESCO: "Basic Notions About Copyright And Neighbouring Rights"]

==Open Access==

'''Open access is a term describing an information resource that is open to all.'''

It also refers to a movement within the academic community dedicated to making scholarly research more accessible, rather than hidden behind a price or permission barriers.

“Open access” journals are not necessarily free, since they may charge a fee for maintenance costs, or to compensate authors, but typically an open access resource is free to all to read and use. Journals that ask for some payment are sometimes called “hybrid” access journals.

Harvard University recently adopted a policy where all of its faculty are permitted and encouraged to make their research available as open access. The U.S. National Institutes of Health has an open access policy requiring all research conducted with public funding to make its results open access, at least after a short interval of exclusivity.

''Other resources:''
* [http://www.doaj.org/ A directory of open access journals]
* [http://www.biomedcentral.com BioMed Central, publisher of 198 peer-reviewed open access journals]
* [http://www.earlham.edu/~peters/fos/overview.htm Professor Peter Suber's Open Access overview]
* [http://www.plos.org/index.php Website of the Public Library of Science]
* [http://www.soros.org/openaccess/read.shtml The Budapest Open Access Initiative]
* [http://www.soros.org/ Webpage of Open Society Institute]
* [http://www.arl.org/sparc/openaccess/ Scholarly Publishing and Academic Resources Coalition's open access page]
* [http://en.wikipedia.org/wiki/Open_access Wikipedia Article on Open Access]
* [http://www.oapen.org/ Website for Open Access Publishing in European Networks]
* [http://chronicle.com/article/Harvard-Faculty-Adopts/40447 Article about Harvard university adopting open access policy]
* [http://blogs.law.harvard.edu/mediaberkman/2009/03/03/radio-berkman-open-accessories/ MP3 of RadioBerkman interview with Peter Suber]
* [http://freegovinfo.info/node/2531 Discussion of proposed US law limiting open access to research]
* [http://publicaccess.nih.gov/ US National Institutes of Health Open Access homepage]
* [http://cyber.law.harvard.edu/interactive/events/2008/03/suber video of Professor Peter Suber's presentation "What Can Universities Do to Promote Open Access?"]

==“Opt-in”==

'''When a person must choose to do something, rather than it happening automatically.'''

Opt-in describes the default state any situation in which a user or participant has a choice of whether to do something or not, and where the default state is “not”. That is, a person must explicitly and consciously choose to take part. If no action is taken, the person will'' '''not''' ''participate, agree to terms, etc.

==“Opt-out”==

'''When a person must choose to not do something, otherwise it will happen automatically.'''

Opt-in describes the default state in any situation in which a user or participant has a choice of whether to do something or not, and the default state prior to any user involvement or active decision is “doing it”.

That is, unless the user consciously and deliberately decides to not agree, or participate, and chooses "no", the assumption going forward is that he or she agrees to the conditions proposed.

==Original expression==

'''Original expression refers to a creator’s original, copyrightable, creative work.'''

This is in contrast to any later derivative works, other later work that in some way incorporates the original work, or work that isn’t original at all. Expression that is not original cannot qualify for copyright.

''Other resources:''

* [http://www.buildingipvalue.com/08_AP/226-228SudathPerera.pdf Sri Lankan academic article: "A right to original expression: the role of copyright law in modern industry"]

==Orphan works==

'''Orphan works are creative works that are still under copyright protection, but for which it is either impossible or prohibitively difficult to identify the copyright holder.'''

This is most often a problem with photographs on the Internet, but arises with other types of works as well. Since the works are under copyright, permission is need to use them, but since the rights-holder cannot be found, no permission can be obtained. This puts these works into a sort of limbo. People want to make use of them, but usually won’t for fear of liability, and the works cannot pass into the public domain until the term of their copyright expires.

The settlement with the Author’s Guild in the Google Book Search lawsuit contains controversial provisions for orphan works, although it does not refer to them by that term. These terms are the subject of much debate and opposition worldwide.

Orphan works legislation has also been proposed at several different times in the U.S. Congress.

''Other resources:''

* [http://www.copyright.gov/orphan/ US Register of Copyright's article: "The Importance of Orphan Works Legislation"]
* [http://www.copyright.gov/docs/regstat031308.html US Register of Copyright's statement to US Congress on orphan works]
* [http://www.wired.com/threatlevel/2008/09/orphan-works-co/ technology magazine article "‘Orphan Works’ Copyright Law Dies Quiet Death"]
* [http://blog.librarylaw.com/librarylaw/2009/04/google-book-settlement-orphan-works-and-foreign-works.html LibraryLaw blog post: "Google Book Settlement, orphan works, and foreign works"]
* [http://news.cnet.com/8301-1023_3-10300887-93.html News article "Google pushes for new law on orphan books"]
* [http://www.researchinformation.info/news/news_story.php?news_id=487 Article "Copyright law prevents access to millions of 'orphan works'"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263361 US law review article: "Recent Developments in US Copyright Law: Part I - 'Orphan' Works"]
* [http://www.law.duke.edu/cspd/pdf/cspdproposal.pdf "Orphan Works Analysis and Proposal" from the Center for the Study of the Public Domain. Duke Law School]
* [http://www.nytimes.com/2008/05/20/opinion/20lessig.html Lawrence Lessig op-ed piece on orphan works]
* [http://www.mileproject.eu/orphanworks Metadata Image Library Exploitation website's page on orphan works (EU)]
* [http://www.cepic.org/issues/industry_issues_downloads/2008/10/situation_orphan_works_eu CEPIC report: "The Situation of Orphan Works In Europe"]
* [http://www.cenl.org/docs/Report_Digital_Preservation_Orphan_Works_Out-of-Print_Works_Selected_Implementation_Issues_June07.pdf Digital Libraries Expert Group's "Report on Digital Preservation, Orphan Works, and Out-of-Print Works. Selected Implementation Issues]
* [http://en.wikipedia.org/wiki/Orphan_works Wikipedia article on Orphan works]

=="Notice and Takedown”==

'''“Notice and takedown” refers to the particular sort of cease and desist letter associated with the U.S. Digital Millennium Copyright Act.'''

An Internet entity ( such as YouTube), upon receiving notice that it is hosting or otherwise making available a copyrighted work, can avoid liability for infringement by immediately taking down the copy of the work in question.

These notices are often criticized because their process strongly preferences rightsholders, who can effectively shut down any and all uses of their work, whether fair, permissible or not, since most posters will not bother to challenge a takedown notice with a counternotice.

====Counternotice ====

'''The response to a DMCA takedown notice.'''

A counternotice is the action taken by the person who originally posted the work that was taken down under a DMCA Section 512 “notice and takedown”. If the poster believes that the work was used legitimately, they can inform the host, who then are required to put it back up, and notify the alleged rightsholder that the copyright has been challenged.

The process for challenging takedowns with a counterntice is much more time-consuming and lengthy than that for a takedown itself, leading some to criticize the system as unfairly favoring alleged rights-holders, creating a legal avenue for private censorship of speech, and confronting Internet hosting sites with skewed incentives.

====“Putback”====

'''When a website that took content down in response to a DMCA takedown notice puts it back up after receiving a counternotice.'''

“Putback” refers to when an Internet content host, such as YouTube, having received a “notice and takedown” and then a “counternotice”, puts the possibly infringing content back online, pending a review of its copyright status.

''Other Resources''
* [http://www.chillingeffects.org/dmca512/faq.cgi#QID130 Chilling Effects FAQ on notice and takedown]
* [http://www.ivanhoffman.com/dmca.html US lawyer's article on DMCA notice and takedown]
* [http://digital-law-online.info/lpdi1.0/treatise34.html Digital Law Online: "Notice-and-Takedown Procedures"]
* [http://works.bepress.com/graeme_dinwoodie/41/ Academic paper: "A Reverse Notice and Takedown Regime To Enable Fair Uses of Technically Protected Copyrighted Works (with J. Reichman & P. Samuelson)"]
* [http://creativecommons.org/dmca/ Creative Commons page on DMCA notice and takedown]
* [http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act Wikipedia page on Online Copyright Infringement Liability Limitation Act]
* [http://www.copyright.gov/legislation/dmca.pdf US Government report on DMCA]
* [http://www4.law.cornell.edu/uscode/17/512.html Text of DMCA Section 512]
* [http://www.chillingeffects.org/dmca512/faq.cgi#QID132 Chilling Effects FAQ on counternotices]
* [http://www.chillingeffects.org/dmca/counter512.pdf PDF of a counternotice]
* [http://www.cs.cmu.edu/~dst/Terrorism/form-letter.html A "do it yourself" counternotice letter]
* [http://www.chillingeffects.org/responses/notice.cgi?NoticeID=360 Chilling Effects example of a counternotice]
* [http://www.google.com/support/youtube/bin/answer.py?hl=en&answer=59826 YouTube's help page on counternotices]
* [http://www.chillingeffects.org/dmca512/faq.cgi#QID132 Chilling Effects FAQ about putback procedures]
* [http://www.thelaw.com/guide/writing-a-dmca-counter-reply-put-back-notice/ Legal advice website's "Writing a DMCA Counter-Reply Put Back Notice"]
* [http://www.dyniam.com/marketing-blog/what-to-do-when-google-bans-your-site-because-of-a-bogus-dmca-take-down-notice/ Marketing website's page "What To Do When Google Bans Your Site Because Of A Bogus DMCA Take-Down Notice"]
* [http://www.bowdoin.edu/copyright/pdf/notice_692003.pdf PDf of Bowdoin College's DMCA procedures]
* [http://mylaw.usc.edu/documents/512Rep/ Academic paper: "Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act"]

==Perform==
'''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.

''Other resources:''

* [http://arstechnica.com/tech-policy/news/2009/07/telcos-and-reform-groups-slam-ascap-on-ringtone-grab.ars Technology blog article on ringtone controversy]
* [http://arstechnica.com/media/news/2009/06/ringing-up-cash-ascap-suing-att-for-ringtone-performance.ars Another technology blog article on ringtone controversy]
* [http://www.eff.org/press/archives/2009/07/02 EFF article on ringtone controversy]
* [http://www.ascap.com/press/2009/0622_Fighting_For_Your_Fair_Share.aspx ASCAP's page on its mission]
* [http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202432025253 Legal website's article "ASCAP Sues Over Ringtone 'Performance'"]
* [http://www.eff.org/deeplinks/2009/06/ascap-wants-be-paid- EFF legal analysis on ringtone controversy]
* [http://news.cnet.com/8301-1023_3-10161104-93.html News article "Book publishers object to Kindle's text-to-voice feature"]
* [http://news.cnet.com/amazon-retreats-on-kindles-text-to-speech-issue/ News article on Kindle Text-to-speech controversy]
* [http://www.crunchgear.com/2009/05/15/random-house-shuts-down-kindle-text-to-speech-for-their-titles/ Technology blog article "Random House shuts down Kindle text-to-speech for their titles"]
* [http://www.techflash.com/Disability_groups_demand_full_return_of_Kindles_text-to-speech_41583262.html Technology news article "Disability groups demand full return of Kindle's text-to-speech"]
* [http://online.wsj.com/article/SB123419309890963869.html Wall Street Journal article "New Kindle Audio Feature Causes a Stir"]

==Piracy==

'''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.

''Other resources''

* [http://www.chillingeffects.org/piracy/ Chilling Effects page on piracy]
* [http://www.chillingeffects.org/piracy/faq.cgi Chilling Effects FAQ on piracy]
* [http://www.copyright.gov/docs/regstat052505.html US Register of Copyright's statement to Congress on piracy]
* [http://www.publishersweekly.com/article/CA6672109.html?rssid=192 Article: "Copyright Industries Warn Against Piracy Threat"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=443160 Academic paper: "Four Common Misconceptions About Copyright Piracy"]
* [http://books.google.com/books?id=0iau-RT8eEsC&dq=copyright+piracy&printsec=frontcover&source=in&hl=en&ei=sZ94SuqnG8OMtgeMiNGWCQ&sa=X&oi=book_result&ct=result&resnum=18#v=onepage&q=copyright%20piracy&f=false Google Book: The Politics of Piracy: Intellectual property in contemporary China by Andrew Mertha]
* [http://www.copynot.com/ Anti-piracy website]
* [http://www.gnu.org/philosophy/words-to-avoid.html#Piracy GNU "Words to avoid" entry on piracy]
* [http://www.macobserver.com/tmo/article/iphone_app_piracy/ News article about "iPhone App Piracy"]
* [http://tim.oreilly.com/pub/a/p2p/2002/12/11/piracy.html Article: "Piracy is Progressive Taxation, and Other Thoughts on the Evolution of Online Distribution"]

==Plagiarism==

'''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.

''Other resources:''

* [http://www.pddoc.com/copyright/plagiarism.htm Legal information website's article: "Copyright and Plagiarism: What's the Difference?"]
* [http://www.transcendentalists.com/plagiarism_and_copyright.htm List of resources on plagiarism and copyright]
* [http://www.plagiarismchecker.com/plagiarism-vs-copyright.php PLagiarismChecker.com article: "Plagiarism and Copyright Infringement: Is Copying Illegal?"]
* [http://lists.ibiblio.org/pipermail/cc-community/2008-May/003685.html Discussion of plagiarism vs copyright]
* [http://www.plagiarismtoday.com/2005/10/06/copyright-infringement-plagiarism-and-fair-use/ Plagiarism Today article "Copyright Infringement, Plagiarism and Fair Use"]
* [http://www.historians.org/governance/pd/curriculum/plagiarism_defining.htm "Plagiarism: Curricular Materials for History Instructors"]
* [http://www.eucopyright.org/plagiarism/ EU Copyright.org article "Plagiarism Judo - a clever remedy?"]

==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.

''Other resources:''

* [http://www.librarycopyright.net/digitalslider/ "Is it protected by copyright?" -interactive tool for US law]
* [http://www.thepublicdomain.org/download/ Website for the book The Public Domain – Enclosing the Commons of the Mind by James Boyle]
* [http://www.copyright.gov/pr/pdomain.html US Copyright office statement on public domain works]
* [http://www.law.duke.edu/cspd/ Website for The Center for the Study of the Public Domain]
* [http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/ Stanford University Library system's page on Copyright and the Public Domain]
* [http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-a.html Stanford University Libraries "Welcome to the Public Domain"]
* [http://www.copyright.cornell.edu/resources/publicdomain.cfm Copyright Term and the Public Domain in the United States]
* [http://www.unc.edu/~unclng/public-d.htm A chart for determining when a work is in the public domain]
* [http://creativecommons.org/licenses/publicdomain/ Creative Commons webpage "Copyright-Only Dedication* (based on United States law) or Public Domain Certification"]
* [http://googleblog.blogspot.com/2005/11/preserving-public-domain-books.html Google Blog "Preserving public domain books"]
* [http://creativecommons.org/choose/publicdomain-2 Creative Commons page about identifying works already in the public domain]
* [http://librivox.org/public-domain/ Librivox web page "Copyright, Public Domain & LibriVox"]
* [http://www.eff.org/deeplinks/2009/07/eff-defends-wikipedi EFF legal analysis "EFF Defends Wikipedian's Right to the Public Domain"]
* [http://www.public-domain.org/ Public-Domain.org]
* [http://www.cpdl.org/wiki/index.php/Main_Page ChoralWiki, home of the Choral Public Domain Library]
* [http://en.wikipedia.org/wiki/Public_domain Wikipedia article on public domain]

==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.

''Other resources:''

* [http://www.bitlaw.com/copyright/scope.html#display BitLaw entry on "public display"]
* [http://www.utexas.edu/law/faculty/treese/Illinois.pdf Law review article: "The public display right: the Copyright Act's neglected solution to the controversy over RAM 'copes'"]
* [http://www.gseis.ucla.edu/iclp/oct96.html Article: "New Directions in Cyberspace Law"]
* [http://www.quizlaw.com/copyrights/what_is_the_right_of_public_di.php QuizLaw: "What is the right of public display?"]
* [http://www.arl.org/bm~doc/crs_rl33810.pdf PDF of US Congressional Research Service report "Internet Search Engines: Copyright’s “Fair Use” in Reproduction and Public Display Rights"]
* [http://itlaw.wikia.com/wiki/Public_display IT Law wiki entry on "public display"]

==Registration==

'''Formally obtaining copyright protections for a creative work by notifying the copyright office that it exists.'''

In U.S. copyright law, although a creative work receives copyright at the moment it is fixed in a tangible form, a copyright holder cannot file suit against an alleged infringer without officially registering the work with the copyright office.

The Berne Convention does not require registration, or any other official formalities.

''See also:''

* [[Glossary#.28legal.29_Formalities|Formalities]]

''Other resources:''

* [http://www.copyright.gov/register/ US Government's copyright website page on registration]
* [http://www.copyright.gov/eco/ US Government's copyright website online registration system]
* [http://www.copyright.gov/forms/ US Government's copyright website forms for off-line registration]
* [http://en.wikipedia.org/wiki/Copyright_registration Wikipedia article on copyright registration]
* [http://www.allbusiness.com/legal/intellectual-property/3931441-1.html Article on registration tool for user-generated content. (blogging, podcasting, etc.)]

==Relief==

'''What a court grants a rightsholder who has won an infringement lawsuit.'''

When a copyright lawsuit is resolved in favor of the rightsholder, a court will then grant them relief -- relief from the harm which they have suffered as a result of the infringement

====Injunctive====

'''Injunctive relief occurs when a court issues an injunction or a restraining order against an infringer.'''

The injunction might order that infringing content be removed from display, or that extant illegal copies be collected and destroyed, or whatever measures the court finds appropriate.

====Statutory====

'''Statutory relief is relief according whatever provisions for relief exist explicitly in statute.'''

These could include damage awards, criminal punishment or more.

==Religious Legal System==

'''A religious legal system is one where the law is based on the tenets of a particular religion.'''

Some religious legal systems exist on their own, while some exist in conjunction with another legal system.
Sharia, the system of religiously inspired Islamic law, is an example of a religious legal system, as are Hindu law and Halakha or Jewish law.

''See also:''

* [[Glossary#Common_Law|Common Law]]
* [[Glossary#Civil_Law|Civil Law]]

''Other resources:''

* [http://nyugloballaw.com/globalex/Religious_Legal_Systems.htm Academic paper "Religious Legal Systems: A Brief Guide to Research and Its Role in Comparative Law"]
* [http://en.wikipedia.org/wiki/Religious_law Wikipedia article on Religious law]
* [http://books.google.com/books?id=YsUMTA4MebwC&pg=PA49&lpg=PA49&dq=religious+legal+system&source=bl&ots=hELODC8c5N&sig=TPV22i8YViZXi1V8sGzxFGKxrg4&hl=en&ei=efB4SsK3BtWPtgeuptGWCQ&sa=X&oi=book_result&ct=result&resnum=4#v=onepage&q=religious%20legal%20system&f=false Google book: Religion,law and tradition By Andrew Huxley]

==Rights==

'''The rights a creator, copyright holder, the public or member of the public has as a result of copyright.'''

Copyright grants its holder various exclusive rights as part of its limited time monopoly. These rights can be usefully divided into economic rights and moral rights. In addition, as part of the copyright “bargain” the public gains certain rights in a copyrighted work as well. A list of these rights follows.

====Right of Integrity ====

The right to prevent the destruction or defacement of a creative work, or to object to any changes made to a creative work

Most often seen in the context of a painting or sculpture. For example, the rights to a piece of art on display.

====Right of Attribution ====

The right to be known as the creator of a particular creative work, to be given appropriate credit for one’s creations, and not to be blamed for things one did not create.

====Right of Disclosure ====

The right to determine when and if a work shall be made public.

====Right of Reproduction====

The right to make copies of a work.

====Right of Adaptation ====

The right to make derivative works.

====Right of Distribution ====

The right to sell, export or import a work or copies of a work.

====Right of Public Performance and Display====

The right to perform or display a work in public.

====Right of Withdrawal====

The right to withdraw a work from the public sphere.

Most commonly seen with artworks of which only a single copy exists but also sometimes seen as a right to purchase extant copies of a creative work at a reduced rate. For example, a book a writer no longer wants on the market.

====Right of Access====

The right of the public to have access to a published copyrighted work.

This particular right is actually not a right of the copyright holder, but rather of the public. In return for granting the creator the various copyrights, arguably at the expense of the public, the public gains access to the work.

''Other resources:''

* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=270861 Law review article: "Copyright in the EU and U.S.: What 'Access-Right'?]
* [http://www.reuters.com/article/pressRelease/idUS85594+01-May-2009+PRN20090501 Reuters article: "Right of Access in Germany Affects Only Serious Breaches of Copyright"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1199122 Working paper: "Access-Right: An Inquiry into the Problem of Digital Copyright Law "]
* [http://www.ip-watch.org/weblog/2009/04/24/eu-stakeholders-debate-copyright-access-and-rewarding-artists-in-digital-age/ IP Watch article: "EU Stakeholders Debate Copyright, Access And Artists In Digital Age "]
* [http://www.springerlink.com/content/facjg59bahexvj3g/ Book chapter: "Copyright Dilemma: Access Right as a Postmodern Symbol of Copyright Deconstruction?"]
* [http://informationr.net/ir/10-3/paper230.html Academic paper: "Intellectual property rights vs. public access rights: ethical aspects of the DeCSS decryption program"]
* [http://www.allacademic.com/meta/p_mla_apa_research_citation/2/5/5/2/5/p255259_index.html Academic paper: "Copyright and Access to Knowledge in a Human Rights Framework"]
* [http://cyberlaw.stanford.edu/node/5446 Stanford Center for Internet & Society article: "Access-Right and Copyright Presentation"]
* [http://books.google.com/books?id=pTIS8HWvNOgC&pg=PA69&lpg=PA69&dq=copyright+right+of+access&source=bl&ots=p7NjKS9Mh4&sig=_dt0GWcNN8yG8PkzcxWI-ovVSus&hl=en&ei=mfJ4Ss2aI8awtgfkttWWCQ&sa=X&oi=book_result&ct=result&resnum=9#v=onepage&q=&f=false Google Book: The nature of copyright by Lyman Ray Patterson & Stanley W. Lindberg]

==Rome Convention==

'''The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations'''

The Rome Convention is an international copyright agreement specifically addressing the rights of three groups. These groups are: performers, the producers of sound recordings, and the broadcasters of broadcasts, all of whom receive protection for their efforts, especially against acts to which they have not consented, like being recorded. First done in 1961, the convention attempts to offer specific protection for creative work that might otherwise not qualify for copyright, usually because of its transitory nature.

''See also:''

* [[Glossary#Neighboring_Rights|Neighboring Rights]]

''Other resources:''
* [http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html WIPO's text of convention]
* [http://www.wipo.int/treaties/en/ip/rome/ WIPO's Rome convention page]
* [http://www.wipo.int/treaties/en/ip/rome/summary_rome.html WIPO Summary of Rome Convention]
* [http://www.statemaster.com/encyclopedia/Rome-Convention Web encyclopedia entry on Rome convention]
* [http://www.unesco.org/search/search_en.html?cx=000136296116563084670:h14j45a1zaw&cof=FORID%3A9&ie=UTF-8&q=rome%20convention#1172 UNESCO resources on Rome Convention]
* [http://www.kipo.ke.wipo.net/clea/en/details.jsp?id=2031 WIPO page re: Rome convention for Guatemala]
* [http://ompi.ch/clea/en/details.jsp?id=2862 WIPO page regarding convention for Lithuania]
* [http://unesdoc.unesco.org/images/0013/001397/139776E.pdf PDF of 2005 Intergovernmental committee meeting on Rome Convention]
* [http://www.thefreelibrary.com/Rome+Convention+on+the+law+applicable+to+contractual+obligations...-a0149936237 News article about Rome Convention's force in Latvia]
* [http://en.wikipedia.org/wiki/Rome_Convention_for_the_Protection_of_Performers,_Producers_of_Phonograms_and_Broadcasting_Organisations Wikipedia article on Rome Convention]

==“Safe Harbors”==

'''A clearly defined set of circumstances or actions with respect to a particular law that shield the actor from liability.'''

A law with safe harbors says “These things will make you liable, but if you do “this”, then you are guaranteed to be safe". Safe harbors play an important role in areas of the law that are primarily governed by guidelines (which ultimately need to be interpreted by a court) , rather than rules. Since many people may lack the resources or legal sophistication to know or find out if their behavior is legal, a safe harbor provides certainty.

In the context of copyright law, although it is also used as a generic term for the limits of “safe” activity”, safe harbors are most often encountered with respect to Section 512 of the United States’ Digital Millennium Copyright Act, “Limitations on liability relating to material online”, which describes various ways in which Internet content providers can ensure that they will avoid liability for the behavior of their users and patrons. The most important of these is the “notice and takedown” proceeding.

Note: ''“Safe harbor” may also refer to a U.S. – EU agreement regarding the safety and privacy of personal data and databases.''

''See also:''

* [[Glossary#DMCA|DMCA]]
* [[Glossary#.22Notice_and_Takedown.E2.80.9D|Notice and Takedown]]
* [[Glossary#.E2.80.9CCease-and-desist.E2.80.9D_letter|Cease and Desist]]

''Other resources:''

* [http://images.chillingeffects.org/512.html A Chilling Effects page on the DMCA's Section 512]
* [http://www.chillingeffects.org/dmca512/ Another Chilling Effects page on the DMCA and Section 512]
* [http://www.chillingeffects.org/dmca512/faq.cgi#QID125 Chilling Effects FAQ on DMCA Section 512]
* [http://blogs.zdnet.com/micro-markets/?p=526 News article "Google YouTube copyright 'safe harbor' marriage"]
* [http://arstechnica.com/tech-policy/news/2009/01/judge-transcoding-doesnt-block-veoh-safe-harbor-defense.ars Technology website article: "Judge: transcoding doesn't block Veoh "safe harbor" defense"]
* [http://copywrite.org/2007/03/28/digital-millennium-copyright-act-section-512-safe-harbor-basics/ Copywrtie.org article "Digital Millennium Copyright Act section 512 safe harbor basics"]
* [http://arstechnica.com/tech-policy/news/2008/10/adecade-of-the-dmca-keep-the-safe-harbor-ditch-the-rest.ars Technology website article: "A decade of the DMCA: keep the Safe Harbor, ditch the rest"]
* [http://cyberlaw.stanford.edu/packet/200902/dmca-safe-harbor-service-providers-also-protects-non-storage-activitie Stanford Center for Internet and Society article: "DMCA Safe Harbor for Service Providers Also Protects Non-Storage Activities Designed to Facilitate Access to User-Stored Content "]
* [http://arstechnica.com/tech-policy/news/2007/10/riaa-shifts-legal-battle-to-a-new-front-sues-usenet-access-provider.ars Technology website article: "RIAA shifts legal battle to a new front, sues Usenet access provider"]
* [http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act U.S. – EU Safe Harbour resources Wikipedia article on "Online Copyright Infringement Liability Limitation Act"]
* [http://www.export.gov/safeharbor/eg_main_018236.asp Export.gov: "Safe Harbor Overview"]
* [http://www.ita.doc.gov/td/ecom/menu.html International Trade Administration Electronic Commerce Taskforce's safe harbor documents]
* [http://www.export.gov/safeharbor/ Export.gov's safe harbor page]
* [http://www.markem.com/references/policies/REF00156%20GBL%20European%20Union%20_EU_%20Safe%20Harbour%20Privacy%20Policy.pdf PDF of GBL European Union (EU) Safe Harbour Privacy Policy]
* [http://www.thefreelibrary.com/U.S.+companies+not+complying+with+E.U.+Safe+Harbor+rules-a0127433376 News article: "U.S. companies not complying with E.U. Safe Harbor rules."]
* [http://en.wikipedia.org/wiki/International_Safe_Harbor_Privacy_Principles Wikipedia article: "International Safe Harbor Privacy Principles"]
* [http://www.truste.com/pdf/EU_Data_Sheet.pdf EU-US Safe Harbor datasheet]
* [http://web.ita.doc.gov/safeharbor/shlist.nsf/webPages/safe+harbor+list US Department of Commerce list of safe harbor countries]
* [http://ec.europa.eu/justice_home/news/information_dossiers/personal_data_workshop/doc/Presentation_Greer.ppt Presentation: "The US Safe Harbor - Fact or Fiction? (2008)"]
* [http://en.wikipedia.org/wiki/Directive_95/46/EC_on_the_protection_of_personal_data Wikipedia article: "Data Protection Directive"]

==Statutory Exemption==

'''An exemption to copyright law protections explicitly written into statute.'''

While a particular behavior might be infringing under the general description of copyright, it is specifically exempted, usually for public policy reasons. For example, copying books without the express permission of the rights-holder is a violation of copyright. However, making copies expressly for the purpose of providing the disabled with access to the book is exempted by statute. Therefore, such behavior is not infringing.

Other statutory exemptions include copying for certain academic uses, especially instructional activities, copying for archival purposes or to deal with broken or obsolete technology, distance education, and more.

The Berne Convention places some limits on what statutory exemptions a country can have in its national legislation with its three-step test, saying “"[i]t shall be a matter for legislation in the countries of the Union to permit the reproduction of such [literary and artistic] 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".

''See also:''

* [[Glossary#Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works|Berne Convention]]

''Other resources:''

* [http://www.copyright.gov/fedreg/2006/71fr68472.html US regulation 37 CFR 201: "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies" final rule]
* [http://www.copyright.gov/1201/2008/responses/new-media-rights-40.pdf PDF of New Media Right's comments in response to the Notice of Inquiry of Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies]
* [http://www.mlanet.org/government/term_ext/replycomments.html#notice Medical Library Association's comments on notice provisions and the Berne Convention]
* [http://www.proquest.com/en-US/products/dissertations/copyright/Summary.html Academic paper: "International Copyright Summaries To Accompany: "Copyright Law & Graduate Research""]
* [http://www.legco.gov.hk/yr01-02/english/panels/ci/papers/ci0110cb1-743-2e.pdf PDF: Music Publishers Association of Hong Kong Submission in Response to Consultation Document Review of Certain Provisions of Hong Kong Copyright Ordinance 1997]

==Statute of Limitations==

'''A statute of limitations is a law that limits how long a person can wait to bring a legal action after a law is broken.'''

When the time limit specified by the statute of limitations has run out, or “tolled”, any future legal action is said to be "barred". For example, if the statute of limitations for a particular crime is 10 years, it is generally not possible to prosecute for that crime twelve years after it took place.

With respect to copyright law, the statute of limitations will describe how long after an act of infringement a rights-holder can wait to bring a suit. It will also limit the number of infringing acts for which the rights holder may seek damages. The length of the time limit varies between jurisdictions, and the exact nature of the limits varies as well.

For instance, in the United States, there is a three year statute of limitations for copyright violations, although this is a generic limit, not specific to copyright. This three year clock begins on the date of the most recent infringing act. However, some courts treat this as a “rolling” three years, meaning that a rights holder can only seek damages for acts within the three years prior to bringing suit. Other courts have held that even if the infringing began more than three years prior to the suit, if the infringement was ongoing, and at least one act was within the last three years, the rights holder may seek damages for all of the infringing acts.

''Other resources:''

* [http://williampatry.blogspot.com/2005/05/statute-of-limitations-part-one.html Copyright scholar William Patry's blog entry #1 on statute of limitations]
* [http://williampatry.blogspot.com/2005/05/statute-of-limitations-part-two.html Copyright scholar William Patry's blog entry #2 on statute of limitations]
* [http://williampatry.blogspot.com/2006/07/laches-and-statute-of-limitations.html Copyright scholar William Patry's blog entry on laches statute of limitations]
* [http://williampatry.blogspot.com/2007/12/statute-of-limitations-for-actions.html Copyright scholar William Patry's blog entry on statute of limitations for actions]
* [http://law.freeadvice.com/intellectual_property/copyright_law/copyright_statute_limitations.htm Advice webpage answer "From what point in time does the 3-year statute of limitations begin to run?"]
* [http://www.plagiarismtoday.com/2006/03/30/statute-of-limitations-in-copyright-law/ Plagiarism Today article: "Statute of Limitations in Copyright Law"]
* [http://www.photoattorney.com/2005/05/dont-sit-on-your-copyright.html Photo Attorney blog post: "Don't Sit On Your Copyright Infringement Claim!"]
* [http://www.exclusiverights.net/category/statute-of-limitations/ Copyright blog post on statute of limitations: "Third Circuit holds discovery rules govern claim accrual under the Copyright Act"]
* [http://www.chicagoiplitigation.com/tags/statute-of-limitations/ IP litigation blog post: "Copyright Office Printout Suggesting Registration Sufficient to Maintain Infringement Claim"]

==“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:''

* [[Glossary#Intellectual_Effort|Intellectual Effort]]

''Other resources:''

* [http://www.gutenberg.org/wiki/Gutenberg:No_Sweat_of_the_Brow_Copyright Project Gutenberg article: "Gutenberg: No Sweat of the Brow Copyright"]
* [http://itlaw.wikia.com/wiki/Sweat_of_the_brow IT Law wiki article on: "Sweat of the Brow"]
* [http://www.copyright.gov/docs/regstat092303.html Statement of David O. Carson General Counsel, United States Copyright Office on Database and Collections of Information Misappropriation Act of 2003"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=621184 Canadian law review article: "Sweat of the Brow, Creativity and Authorship: On Originality in Canadian Copyright Law "]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1398303 Law review article: "Doctrine of Sweat of the Brow"]
* [http://www.law.duke.edu/journals/DLTR/Articles/2001dltr0017.html Law review article: "The Future of Database Protection in U.S. Copyright Law]
* [http://www.iusmentis.com/databases/us/ Law and Technology website article: "Database protection in the USA"]
* [http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf PDF of EU Commission's DG Internal Market and Services Working Paper - First evaluation of Directive 96/9/EC on the legal protection of databases"]
* [http://www.concurringopinions.com/archives/2009/05/databases-and-australian-copyright-law.html Australian blog post: "Databases and Australian Copyright Law"]
* [http://www.asis.org/Bulletin/Dec-97/Copyrite.htm US Copyright Office: "Report on Legal Protection for Databases"]
* [http://en.wikipedia.org/wiki/Sweat_of_the_brow Wikipedia Article on "Sweat of the brow"]
* [http://en.wikipedia.org/wiki/Feist_Publications_v._Rural_Telephone_Service Wikipedia article on ''Feist v Rural Telephone'']

==Tangible Medium==

'''The physical form that a copyrighted work may take.'''

U.S copyright law requires that a creative work be fixed in a “tangible medium” before it qualifies for copyright, in contrast with the law of some other countries, which confer copyright at the moment of conception.

The tangibility requirement has led to some problems with protection for types of works that are not normally “fixed”, such as dance, stand-up comedy, live musical performances, and more. It has also been the subject of much discussion with respect to computers, computer displays and computer memory, in terms of when a program or a program’s output is “fixed” or not. Some of these issues have been addressed with targeted legislation.

''See also:''

* [[Glossary#fixation|Fixation]]

''Other resources:''

* [http://www.law.cornell.edu/uscode/17/102.html US Code Â§ 102. Subject matter of copyright: In general ]
* [http://www.ehow.com/video_2384683_tangible-medium-expression-music-copyright.html Tangible Medium of Expression: Music Copyright]
* [http://www.quizlaw.com/copyrights/what_is_a_tangible_medium.php Copyright Quizlaw: What is a tangible medium?]

==“Three-Strikes” Laws==
'''A 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:''

* [[Glossary#DMCA|DMCA]]
* [[Glossary#Glossary#.22Notice_and_Takedown.E2.80.9D]]

''Other resources:''

* [http://arstechnica.com/tech-policy/news/2009/02/kiwis-get-strict-copyright-three-strikes-law-at-months-end.ars Kiwis get strict copyright, three-strikes law at month's end]
* [http://arstechnica.com/tech-policy/news/2009/07/its-baack-french-3-strikes-law-gets-another-go-from-senate.ars French "3 strikes" law returns, now with judicial oversight!]
* [http://techgeist.net/2009/05/three-strikes-law-struck-down-in-european-parliament/ Three Strikes Law Struck Down In European Parliament]
* [http://freeculturenews.com/2009/07/15/australian-goverment-considering-3-strikes-law/ Australian Goverment Considering 3 Strikes Law]
* [http://www.michaelgeist.ca/content/view/2915/125/ France Says Canada Considering "Three Strikes and You're Out" ISP Policy]
* [http://torrentfreak.com/campaign-to-stop-file-sharers-being-guilty-upon-accusation-090105/ Campaign to Stop File-Sharers Being “Guilty Upon Accusation”]

==“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:''

* [[Glossary#Statutory_Exemption|Statutory Exemption]]

''Other resources:''

* [http://williampatry.blogspot.com/2008/04/fair-use-three-step-test-and-european.html Fair Use, the Three-Step Test, and the Counter-Reformation]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=299543 Academic article: "The Three-Step Test Frenzy - Why the TRIPS Panel Decision Might be Considered Per Incuriam"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=253867 Academic article: "Toward Supranational Copyright Law? The WTO Panel Decision and the 'Three-Step Test' for Copyright Exceptions"]
* [http://www.murdoch.edu.au/elaw/issues/v10n4/meyer104.html Academic article: "Exceptions to Intellectual Property Rights: Lessons from WTO-Trips Panels"]
* [http://law.bepress.com/cgi/viewcontent.cgi?article=1520&context=expresso Academic article: "Towards a New Core International Copyright Norm: The Reverse Three-Step Test"]
* [http://www.bakercyberlawcentre.org/unlocking-ip/2009/materials/Papers/3A_BAtkinson.pdf Academic article: "Three-step test and Australia: right to remuneration and the concept of sterile copyright"]
* [http://en.wikipedia.org/wiki/Berne_three-step_test Wikipedia: Berne Three Step Test]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=924174 Academic article: "Fixing the Three-Step Test"]

==TPM – Technological Protection Measures==

'''Technological protection measures, or “TPM” are security measures added to digital technology and content by content providers in order to restrict and control access, and exert greater control over the uses of the content they sell.'''

TPM is a broader term than “DRM", which really refers only to software-encoded protections. TPM is potentially both software and hardware based. Measures could include requiring passwords, filtering software, censor chips in computers, monitoring/ surveillance technology, (semi-)autonomous software tools and more. Regionally coded DVDs and DVD players are one example of a TPM. Other examples are Microsoft’s “Trusted Computing” and the “feature” of Apple’s iTunes that permits users to transfer a song to only five different computers.

While ostensibly aimed only at infringing users, TPM techniques often have negative impact on legitimate users, both with respect to legal uses and to privacy concerns. However, under at least U.S. law, it is illegal both to circumvent any technological protection measure and to possess anything that makes circumvention possible. The potentially sweeping nature of TPMs has led some to argue that TPMs make it possible for a rights-holder to not only enforce their copyright, but to exert control over a work that exceeds the limits of what copyright law permits.

''See also:''

* [[Glossary#DRM|DRM]]

''Other resources:''

* [http://www.eifl.net/cps/sections/services/eifl-ip/issues/handbook/technological-protection Technological Protection Measures - the "triple lock"]
* [http://www.ntia.doc.gov/ntiahome/ntiageneral/cipa2003/cipareport_08142003.htm Children’s Internet Protection Act]
* [http://www.wipo.int/enforcement/en/faq/technological/faq03.html How do technological protection measures work?]
* [http://www.eff.org/pages/technological-protection-measures-draft-ftaa Technological Protection Measures in the Draft FTAA]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1162263 Technological Protection Measures in EC and Italian Copyright Law]
* [http://www.aph.gov.au/house/committee/laca/protection/report.htm Inquiry into technological protection measures (TPM) exceptions]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=793504 Academic article: "Technological Protection Measures: Tilting at the Copyright Windmill" ]
* [http://www.vjolt.net/vol8/issue3/v8i3_a13-Baesler.pdf Academic article: "How Much Fair Use Do We Need in the “Digital World”?"]
* [http://slisweb.lis.wisc.edu/~libtpm/ LibTPM: Technological Protection Measures and Research Libraries]

==Transferability (of rights)==

'''The feature of copyrights that makes it possible for one rightsholder to transfer ownership of the rights to another person.'''

One of the basic characteristics of property is that it can be transferred to others, whether by sale, gift, or something else. Copyrights are no different. While a creator initially holds copyright in his or her creative work, those rights can be transferred to another person or entity, who can then transfer them again, etc. For example, recording artists frequently transfer the copyright in their songs to a records company. Michael Jackson famously owned the rights to all of the Beatles’ music.

The various rights that “copyright” subsumes can be transferred as a block, but more often are transferred or sold one at a time, some times to different people.

==TRIPS ==

'''The Agreement on Trade Related Aspects of Intellectual Property Rights'''

TRIPS is an international agreement on property rights that came into effect in 1995.

The World Trade Organization’s website describes TRIPS as “to date, the most comprehensive multilateral agreement on intellectual property.” and states that:

“The areas of intellectual property that it covers are: copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations); trademarks including service marks; geographical indications including appellations of origin; industrial designs; patents including the protection of new varieties of plants; the layout-designs of integrated circuits; and undisclosed information including trade secrets and test data.”

The three main features of TRIPS are its sections on standards, enforcement, and dispute settlement. In a way, it is an umbrella agreement, since it requires that its participants agree to and uphold the tenets of several other agreements, treaties and conventions. These are the main conventions of the WIPO, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic in their most recent versions.

''See also:''

* [[Glossary#Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works|Berne Convention]]
* [[Glossary#WIPO|WIPO]]

''Other resources:''

* [http://www.wto.org/english/tratop_E/trips_e/intel2_e.htm Overview: the TRIPS Agreement]
* [http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm Agreement on Trade-Related Aspects of Intellectual Property Rights]
* [http://www.cid.harvard.edu/cidtrade/issues/ipr.html Intellectual Property Summary]
* [http://www.osec.doc.gov/ogc/occic/ipr.htm Overview of Intellectual Property Rights and the TRIPs Agreement]
* [http://www.wpro.who.int/NR/rdonlyres/F9F3BBE1-8663-4DF9-B08A-53B2426FD50C/0/ART_Newsletter_Issue_8.pdf HIV/AIDS Intellectual Property Review]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1400527 Academic article: "Trips, Intellectual Property Law Reform in Indonesia: Why Injunctions Aren't Stopping Piracy"]
* [http://www.wipo.int/about-ip/en/studies/pdf/ssa_lesser_trips.pdf WIPO report: "The effects of TRIPS Mandated Intellectual Property Rights on Economic Activities in Developing Countries]
* [http://www.wiggin.com/db30/cgi-bin/pubs/carlsonQLR01.pdf Academic article: "Trapped by TRIPS? Intellectual property rights, the cold war, and the Cuban embargo revisited"]
* [http://archive.ifla.org/III/clm/p1/tt-e.htm IFLA Guide for Libraries and Librarians to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)]

==UNESCO==

'''The United Nations Educational, Scientific and Cultural Organization'''

UNESCO was founded in 1945. According to [http://unesco.org its website] it “ functions as a laboratory of ideas and a standard-setter to forge universal agreements on emerging ethical issues.

The Universal Copyright Convention of 1952 was adopted under UNESCO’s auspices.

'''Other Resources'''

* [http://portal.unesco.org/en/ev.php-URL_ID=29008&URL_DO=DO_TOPIC&URL_SECTION=201.html UNESCO homepage]
* [http://portal.unesco.org/culture/en/ev.php-URL_ID=5125&URL_DO=DO_TOPIC&URL_SECTION=201.html UNESCO World Book and Copyright Day]
* [http://unesdoc.unesco.org/ulis/copyright/search.htm UNESCO copyright bulletin archives]
* [http://www.accu.or.jp/appreb/10copyr/pdf_ws0509/2_2_unesco.pdf Why is UNESCO in copyright?]
* [http://www.unesco-ci.org/cgi-bin/portals/libraries/page.cgi?g=Reference%2FCopyright%2Findex.html;d=1 UNESCO’s library resources]
* [http://oerwiki.iiep-unesco.org/index.php?title=UNESCO_OER_Toolkit/Copyright_and_Open_Content_Licensing UNESCO OER Toolkit/Copyright and Open Content Licensing ]
* [http://www.unescap.org/tid/projects/iprt_s5_urtnasan.pdf UNESCO’s Copyright Activities and Mongolia]
* [http://ec.europa.eu/libraries/doc/50ans/Copyright_innovation_and_UNESCO_Library.ppt Copyright Innovation and UNESCO Powerpoint Presentation]
* [http://ghanaculture.gov.gh/index1.php?linkid=65&archiveid=962&page=1&adate=26/05/2007 UNESCO / Ghana Copyright Workshop]
* [http://merlin.obs.coe.int/iris/1996/7/article1.en.html UNESCO Copyright and Communication in the Information Society]

==United Kingdom’s Chartered Institute of Library and Information Professionals (CILIP)==

'''CILIP: the Chartered Institute of Library and Information Professionals is the leading professional body for librarians, information specialists and knowledge managers. '''

According to [http://www.cilip.org.uk/Pages/default.aspx its website], "CILIP forms a community of around 36,000 people engaged in library and information work, of whom approximately 21,000 are CILIP members and about 15,000 are regular customers of CILIP Enterprises. CILIP speaks out on behalf of the profession to the media, government and decision makers. CILIP provides practical support for members throughout their entire careers, helpingthem with their academic education, professional qualifications, job hunting and continuing professional development.”

==Universal Copyright Convention (or UCC)==

'''The UCC, which came into effect in 1955, represents an alternative to the Berne Convention.'''

It was designed by UNESCO to provide a form of multilateral copyright protection for countries what wanted such a thing, but which disagreed with some or all of the Berne Convention. These countries include the United States and Russia as well as much of Latin America and the former USSR.

Its opening section states:

"The Contracting States, Moved by the desire to ensure in all countries copyright protection of literary, scientific and artistic works, Convinced that a system of copyright protection appropriate to all nations of the world and expressed in a universal convention, additional to, and without impairing international systems already in force, will, ensure respect for the rights of the individual and encourage the development of literature, the sciences and the arts, Persuaded that such a universal copyright system will facilitate a wider dissemination of works of the human mind and increase international under-standing, Have resolved to revise the Universal Copyright Convention as signed at Geneva on 6 September 1952 (hereinafter called `the 1952 Convention')"

All Berne Convention participants are also UCC members. Additionally, the UCC’s Article 17 explicitly states that none of its provisions are intended to conflict with the Berne Convention, making the UCC of limited importance today, since most countries are Berne members.

''See also:''

* [[Glossary#UNESCO|UNESCO]]

'''Other Resources'''

* [http://portal.unesco.org/culture/en/ev.php-URL_ID=1814&URL_DO=DO_TOPIC&URL_SECTION=201.html UNESCO website's text of Universal Copyright Convention]
* [http://www.copyrightservice.co.uk/copyright/p14_universal_copyright_convention UK copyright Serivce fact sheet on Universal Copyright Convention]
* [http://www.britannica.com/EBchecked/topic/618051/Universal-Copyright-Convention Britannica article on Universal Copyright Convention]
* [http://www.duhaime.org/LegalResources/IntellectualProperty/LawArticle-591/Universal-Copyright-Convention.aspx Legal information website on Universal Copyright Convention]
* [http://manybooks.net/titles/unitednationsother07Universal_Copyright_Convention.html Downloadable text of universal Copyright Convention]
* [http://unesdoc.unesco.org/images/0004/000444/044475Eb.pdf PDF of the draft report of the subcommitee of the intergovernmental committee of the Universal Copyright Convention]
* [http://books.google.com/books?id=OCGsutgMdPIC&pg=PA151&lpg=PA151&dq=universal+copyright+convention+analysis&source=bl&ots=JROw-agDOn&sig=bCuUXetLwC41KNJHUEzUa9cLe50&hl=en&ei=ONx5SumuF4m4M8fRmaMO&sa=X&oi=book_result&ct=result&resnum=5#v=onepage&q=&f=false Googgle Book excerpt: Intellectual property licensing By Richard Raysman, Edward A. Pisacreta, Kenneth A. Adler, Seth H. Ostrow]
* [http://en.wikipedia.org/wiki/Universal_Copyright_Convention Wikipedia article on Universal Copyright Convention]

==WIPO==

'''WIPO is the World Intellectual Property Organization.'''

According to [http://wipo.int its website], WIPO "is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest. WIPO was established by the WIPO Convention in 1967 with a mandate from its Member States to promote the protection of IP throughout the world through cooperation among states and in collaboration with other international organizations. Its headquarters are in Geneva, Switzerland. The Director General is Francis Gurry. WIPO administers 24 different treaties, including the WIPO Convention, thirteen of which are intellectual property treaties.

''Other resources:''

* [http://www.wipo.int/portal/index.html.en WIPO homepage]
* [http://www.wipo.int/treaties/en/ WIO treaties page]
* [http://www.wipo.int/treaties/en/convention/ The page for the WIPO Convention]
* [http://www.wipo.int/export/sites/www/treaties/en/documents/pdf/wipo_convention.pdf PDF with list of "Contracting parties of treaties adminstered by WIPO"]
* [http://www.wipo.int/amc/en/index.html WIPO Arbitration and Mediation Center]
* [http://www.copyright.gov/wipo/treaty1.html WIPO Copyright Treaty adopted by the Diplomatic Conference on December 20, 1996]
* [http://books.google.com/books?id=LiI0BXyPlF8C&dq=WIPO&printsec=frontcover&source=bl&ots=NaawecLEVy&sig=INAtiwx5Uy85dO9rOp9mOjmviqU&hl=en&ei=wbF5SrziD47OM7HUnaMO&sa=X&oi=book_result&ct=result&resnum=7#v=onepage&q=&f=false Google Book: WIPO guide to intellectual property worldwide -- World Intellectual Property Organization]

==WIPO Performances and Phonograms Treaty (WPPT)==

'''A WIPO treaty that came into effect in 2002, explicitly addressing the rights of performers and producers of sound recordings.'''

WIPO's website states that:

“The Treaty deals with intellectual property rights of two kinds of beneficiaries:
(i) performers (actors, singers, musicians, etc.), and (ii) producers of phonograms (the persons or legal entities who or which take the initiative and have the responsibility for the fixation of the sounds).

They are dealt with in the same instrument because most of the rights granted by the Treaty to performers are rights connected with their fixed, purely aural performances (which are the subject matter of phonograms).

As far as performers are concerned, the Treaty grants performers four kinds of economic rights in their performances fixed in phonograms (not in audiovisual fixations, such as motion pictures):
(i) the right of reproduction, (ii) the right of distribution, (iii) the right of rental, and (iv) the right of making available."

''See also:''

* [[Glossary#Fixation|Fixation]]
* [[Glossary#Rights|Rights]]

''Other resources:''

* [http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html Text of WIPO Performances and Phonograms Treaty (WPPT)]
* [http://www.wipo.int/treaties/en/ip/wppt/summary_wppt.html Summary of the WIPO Performances and Phonograms Treaty (WPPT) (1996)]
* [http://portal.unesco.org/culture/en/ev.php-URL_ID=15851&URL_DO=DO_PRINTPAGE&URL_SECTION=201.html Supplemental UNESCO page on WPPT]
* [http://books.google.com/books?id=_pJyKvyGlUoC&pg=PA165&lpg=PA165&dq=WIPO+Performances+and+Phonograms+Treaty+%28WPPT%29&source=bl&ots=QQkMs_bIk-&sig=loiRRI8ommcqBd71rJYKU2ByXAE&hl=en&ei=B955SoP-GZXYNp3LlaMO&sa=X&oi=book_result&ct=result&resnum=10#v=onepage&q=&f=false Google Book excerpt:Concise European copyright law By Thomas Dreier, P. B. Hugenholtz]
* [http://en.wikipedia.org/wiki/WIPO_Performances_and_Phonograms_Treaty Wikipedia article on WPPT]

==WTO – World Trade Organization==

'''The WTO is an organization devoted to the rules of international trade.'''

According to [http://www.wto.org its website], the WTO's "main function is to ensure that trade flows as smoothly, predictably and freely as possible."

The WTO is responsible for, among other things, the TRIPS agreement, which was the first time and place that copyright issues became a focus of an international trade agreement.

''See also:''

* [[Glossary#TRIPS|TRIPS]]

''Other resources:''

* [http://www.wto.org/ WTO website]
* [http://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr00_e.htm The WTO in Brief]
* [http://www.wto.org/english/tratop_e/trips_e/trips_e.htm TRIPS materials on WTO website]
* [http://www.wto.org/english/tratop_e/dispu_e/dispu_subjects_index_e.htm#copyright WTO index of disputes issues]
* [http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm WTO website: Uraguay Round Agreement: TRIPS Trade-Related Aspects of Intellectual Property Rights]
* [http://www.wired.com/threatlevel/2009/01/china-pledges-w/ WIRED magazine article: "China Pledges WTO Copyright, Trademark Cooperation"]
* [http://www.chinadaily.com.cn/china/2007-07/04/content_909757.htm China Daily article: "US urged to withdraw WTO copyright complaint"]
* [http://www.nytimes.com/2009/01/27/business/27trade.html New York Times article: "W.T.O. Finds China Copyright Law Lacking"]
* [http://www.readwriteweb.com/archives/gad-zookz_wto_to_allow_copyright_infringement.php ReadWriteWeb article: "Gad-Zookz! WTO to Allow Copyright Infringement?" (Antigua)]
* [http://www.wipo.int/clea/en/details.jsp?id=3389 WTO page for Panama: Industrial Property (WTO Copyright), Law (Title VII Art. 286 & 291]
* [http://www.trademinister.gov.au/releases/2000/mvt065a_00.html Media release: "WTO Copyright Win a Boom for Australian Musicians"]
* [http://merlin.obs.coe.int/iris/1996/6/article11.en.html European Commission WTO copyright infringement procedure against Japan]
* [http://jobfunctions.bnet.com/abstract.aspx?docid=64544 Article: "Toward Supranational Copyright Law? The WTO Panel Decision and the 'Three-Step Test' for Copyright Exceptions"]
* [http://jlis.glis.ntnu.edu.tw/ojs/index.php/jlis/article/download/416/416 Article: "Impact of WTO’s Copyright Protection to Library Operations & Academic Communications"]
* [http://ifl.sagepub.com/cgi/pdf_extract/29/2/141 Article: "TRIPS into the unknown: Libraries and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights]
* [http://fairuse.stanford.edu/primary_materials/regulations/fr092995.html Text of US Code of Federal Regulations: Restoration of Certain Berne and WTO Works]
* [http://libraryjuicepress.com/blog/?p=550 Article: "A Marxist Analysis of the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights"]
* [http://www.ifla.org/en/publications/the-ifla-position-on-the-world-trade-organization The IFLA Position on The World Trade Organization (available in Chinese, French and German]
* [http://archive.ifla.org/III/clm/p1/pos-wto.htm The IFLA Position on WTO Treaty Negotiations]

==Work For Hire==

'''A creative work that the creator has made at someone else’s request, usually for pay.'''

Work for hire is a concept from U.S. copyright law, and exists in a few others as well. For example, if a person commissions a sculpture from an artist, and provides very specific requirements as to materials and appearance, the sculpture will probably be a work for hire, although the ultimate determination is fact specific.

The concept serves to clear up any confusion that might result when an employee creates a copyrightable work in the course of their employment. Under the “works made for hire” doctrine, the employer holds the copyright in such a situation.

It is this doctrine that ensures that, for example, the hundreds of people who work on the production of a motion picture do not have any claim to the copyright.

However, the nature of the employer/employee relationship can be complex and difficult to define, especially when it exists only for the duration of the work’s creation, or the work is created in an educational context.

Further complicating things, since the Berne Convention separately recognizes economic and moral rights, even a creator who has made a work for hire may still possess moral rights in that work.

''See also:''

* [[Glossary#Neighboring_Rights|Neighboring Rights]]
* [[Glossary#Transferability_.28of_rights.29|Transferability of Rights]]
* [[Glossary#Academic_Exception|Academic Exception]]

''Other resources:''

* [http://www.copyright.gov/circs/circ09.pdf PDF of US Copyright Office circular "Works Made for Hire Under the 1976 Copyright Act"]
* [http://www.copyright.gov/title17/92chap2.html Text of US copyright law "Chapter 2 - Copyright Ownership and Transfer"]
* [http://www.copylaw.com/new_articles/wfh.html Article: "Working with freelancers: What every publisher should know about the "work for hire" doctrine."]
* [http://www.oyez.org/cases/1980-1989/1988/1988_88_293 A short analysis of ''Community For Creative Non-Violence v. Reid'' the seminal U.S. case on the topic]
* [http://www.music-law.com/workforhire.html Music Law.com's page on work for hire]
* [http://www.keytlaw.com/Copyrights/wfhire.htm Legal information site's page on "Works Made for Hire Under the Copyright Act"]
* [http://www.artistshousemusic.org/videos/protecting+your+work+understanding+publishing+copyright+and+work+for+hire Video: Protecting Your Work: Understanding Publishing, Copyright, and “Work For Hire”"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=359720 Law Review article: "Pre-existing Confusion in Copyright's Work-for-Hire Doctrine"]
* [http://www.gkbledsoe.com/articles/submissions/work_for_hire.html The Writing for Children Resource Site article: "The Work-for-hire question"]
* [http://www.eff.org/deeplinks/2007/09/film-schools-teach-wrong-copyright-lesson EFF article: "Film Schools Teach Wrong Copyright Lesson"]
* [http://www.scribd.com/doc/1795117/EFF-ACM-copyright-FAQ-010806 Academy for Creative Media FAQ on the Student Copyright Agreement]
* [http://keepyourcopyrights.org/copyright/rights/work-for-hire KeepYourCopyrights.org page on Work for Hire]
* [http://en.wikipedia.org/wiki/Work_for_hire Wikipedia article on work for hire]

{{NavFooter}}

Glossary

2011-10-11T11:05:59Z

Thackett:

==Academic Exception==

'''Academic exception is the exception for teachers and academics to the general rule that employers hold copyright in the creative works produced by their employees in the course of their employment.'''

Unlike the a work-for-hire situtation, academics typically retain the copyrights in the scholarly work they produce, and may retain, sell or assign those copyrights, or dedicate them to the public domain, at their discretion.

''See also:''

* [[Glossary#Work_For_Hire|Work-For-Hire]]
* [[Glossary#Open_Access|Open Access]]

''Other resources:''

* [http://www.editlib.org/p/29269 A scholarly paper on the academic exception] [Canadian, access required]
* [http://www.sloan-c.org/publications/view/v1n1/CIP2.htm A brief discussion of the academic exception]
* [http://chronicle.com/article/Harvard-Faculty-Adopts/40447 An article on Harvard’s open access policy]

==“Actual Knowledge”==

'''Having direct knowledge (as opposed to merely having reason to believe) that copyright infringement is occurring.'''

Some copyright laws require web hosts to remove content from their servers if they posses "actual knowledge" that the content infringes copyright. Under such laws the hosts may become liable if they do not remove the content.

For example, Section 512(c) of the U.S. Digital Millenium Copyright Act reads:

“(c) Information Residing on Systems or Networks At Direction of Users.
(1) In general. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider
(A)
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

''See also:''

* [[Glossary#DMCA|DMCA]]
* [[Glossary#.E2.80.9CSafe_Harbors.E2.80.9D|Safe Harbors]]

''Other resources:''

* [http://www.keytlaw.com/Copyrights/dmca.htm Legal information website's page "You are here: Home Copyright Law Claims of Copyright Infringement under the DMCA Web Site Owners: How to Protect Yourself from Claims of Copyright Infringement for Users' Conduct"]
* [http://www.ipinfoblog.com/archives/intellectual-property-good-faith-in-dmca-takedown-notice-should-mean-simple-honesty.html Law professor David Nimmer's article "'Good faith' in DMCA take-down notice should mean simple honesty"]
* [http://www.wipo.int/edocs/mdocs/mdocs/en/osp_lia/osp_lia_2.doc WIPO Document" "A look back at the notice-takedown provisions of the U.S. Digital Millenium Copyright Act one year after enactment"]
* [http://jiplp.oxfordjournals.org/cgi/content/full/4/4/243 Law review article "Fair use and a takedown notice under the Digital Millennium Copyright Act" (requires subscription)].
* [http://www.benedict.com/digital/Internet/DMCA/DMCA-SafeHarbor.aspx Copyright website's article "Digital Millennium Copyright Act -- Safe Harbor Provisions"]

==American Library Association (“ALA”) Code of Ethics==

'''The voluntary code of ethics adopted by the American Library Association to govern the work of librarians.'''

The code makes “known to the profession and to the general public the ethical principles that guide the work of librarians, other professionals providing information services, library trustees and library staffs.” Its tenets “provide a framework; they cannot and do not dictate conduct to cover particular situations.”

''Other resources:''

* [http://www.ala.org/ala/aboutala/offices/oif/statementspols/codeofethics/codeethics.cfm Text of the code]

==Anti-Counterfeiting Trade Agreement (“ACTA”) Proposal (2007)==

'''A proposed multi-lateral trade agreement that is designed to better enforce intellectual property rights by combating the perceived increasing threat of counterfeiting.'''

This counterfeiting in question can be of physical goods and copyrighted works, as well as digital and Internet-based materials and technologies. Specific details of the Agreement’s content are still mostly a secret, and some countries, including the United States, restrict access to it on the basis of national security. The Agreement is generally understood to supersede or bypass UN, WIPO and TRIPS guidelines, and would, among other things, make all peer-to-peer filesharing illegal, regardless of content.

''Other resources:''

*[http://cryptome.org/acta/acta-proposal-2007.pdf Text of ACTA discussion paper]
*[http://arstechnica.com/tech-policy/news/2010/02/world-get-ready-for-the-dmca-actas-internet-chapter-leaks.ars ARSTechnica page on ACTA]
*[http://sites.google.com/site/actadigitalchapter/acta_digital_chapter.pdf?attredirects=1 Google download of treaty text]
*[http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement Wikipedia article on ACTA]
*[http://www.eff.org/issues/acta Electronic Frontier Foundation page on ACTA]
*[http://www.publicknowledge.org/issues/acta Public Knowledge page on ACTA]
*[http://www.ip-watch.org/weblog/2009/04/14/the-acta-threat-to-the-future-of-wipo/ Intellectual Property watch article on ACTA by Canadian law professor]

==Assignment==

'''The means by which ownership of a copyright is transferred to another person or entity.'''

For example, musicians often assign the copyright to their music to their publisher or record company as part of their contract, although this is not a requirement.

''Other resources:''

* [http://www.copyright.gov/help/faq/faq-assignment.html U.S. copyright office FAQ’s on “assignment”]
* [http://www.proz.com/kudoz/german_to_english/law:_contracts/1104341-wahrnehmungsvertrag.html German word for “Assignment” and explanation of same]
* [http://wiki.answers.com/Q/What_is_an_assignment_of_intellectual_property Wikianswers page on “assignment”]
* [http://agreements.realdealdocs.com/IP-Intellectual-Property-License-Assignment-Agreement/ Sample IP license agreements]
* [http://www.articlesbase.com/law-articles/what-are-intellectual-property-assignment-and-license-agreements-586467.html Short article on assignment and licensing]

==Author==

'''The original creator of a work.'''

While the word “author” is used in common vernacular to identify the person who wrote something, such as a book, paper, or article, the term "author" is used in copyright law to identify the creator of any work. Thus, a sculptor, artist or photographer would be considered the "author" of his or her work.

If a copyright is assigned or transferred to a second person or entity, that person does not become the author, merely the new rights-holder. The original author always retains that status or description, and in some legal regimes, has certain rights that cannot be assigned, altered, or renounced.

In countries that recognize the [[Glossary#Work_For_Hire|work-for-hire]] doctrine, the employer can be considered the "author" of the work.

''See also:''

* [[Glossary#Moral_Rights|Moral Rights]]
* [[Glossary#Right_of_Integrity|Right of Integrity]]
* [[Glossary#Right_of_Withdrawal|Right of Withdrawal]]
* [[Glossary#Right_of_Attribution|Right of Attribution]]

==Berne Convention for the Protection of Literary and Artistic Works==

'''The Berne Convention is an international copyright agreement that was first adopted and implemented in 1886. Its intent was to harmonize copyright law across national borders. There are currently 164 member countries.'''

[http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works According to Wikipedia], “The Berne Convention was revised in Paris in 1896 and in Berlin in 1908, completed in Berne in 1914, revised in Rome in 1928, in Brussels in 1948, in Stockholm in 1967 and in Paris in 1971, and was amended in 1979. The UK signed in 1887 but did not implement large parts of it until 100 years later with the passage of the Copyright, Designs and Patents Act of 1988.”''

The Berne Convention is currently active, and is administered by the [[Glossary#WIPO|World Intellectual Property Organization (“WIPO”)]].

While the convention grants authors an array of rights, the most important aspect of the Berne Convention is that countries must grant an author that is a citizen of another member country the same protections it offers its own citizens, in addition to any rights that the convention itself grants. That is to say, a French citizen’s work in Poland or Morocco automatically enjoys the same protections that the work of a Polish or Moroccan citizen would.

''Other resources:''

* [http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works Wikipedia article on the Berne convention]
* [http://en.wikipedia.org/wiki/Berne_Convention_Implementation_Act_of_1988 Wikipedia article on the Berne convention Implementation Act of 1988]
* [http://www.law.cornell.edu/treaties/berne/overview.html Text of the Berne Convention]
* [http://www.copyrightservice.co.uk/copyright/p08_berne_convention UK resource on Berne Convention]
* [http://www.britannica.com/EBchecked/topic/62482/Berne-Convention Britannica article on the Convention]

==Bilateral Agreements==

'''A bilateral agreement is an agreement or treaty made directly between two countries.'''

This is in contrast to a “multilateral” agreement or international agreement such as the [[Glossary#Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works|Berne Convention]] or [[Glossary#TRIPS|TRIPS]]. While some bilateral agreements deal exclusively with copyright, copyright provisions may be inserted in to other, larger treaties, such as peace treaties or economic treaties.

In a bilateral agreement, an author from one country can claim copyright protections in the other country. Such agreements are often used to create copyright protections or provisions that are more stringent, or more generous, than would be possible in a broadly multinational agreement.

A Berne Convention member country may enter into bilateral agreements as long as the provisions of those agreements meet the minimum standards of the Berne Convention. For instance, although it is a member of the Berne Convention, the TRIPS Agreement, and other multilateral agreements, the United States has bilateral agreements with many different countries.

''Other resources''

* [http://www.bilaterals.org/rubrique.php3?id_rubrique=60 A website devoted to international bilateral intellectual property agreements]
* [http://www.eff.org/issues/ftaa EFF article on Free Trade Agreement of the Americas]
* [http://en.wikipedia.org/wiki/Bilateral_copyright_agreements_of_the_United_States Wikipedia article on US bilateral agreements]
* [http://gos.sbc.edu/e/esserman.html Text of speech about U.S & Vietnam bilateral agreement]

==Blanket license==

'''A blanket license allows a user to engage in certain uses of a large number of works under preset terms, without individual negotiation.'''

In the copyright context, such a license addresses all of a defined group of copyrighted works. It “covers” all of the relevant works like a blanket. In this way, it makes it easier to negotiate for the use of a work by making it possible to only make a deal once rather than entering into many separate agreements.

Usually, such licenses are granted and managed by collective rights management groups, which control access to thousands, or even millions, of copyrighted works.

''See also:''
* [[Glossary#Collective_Rights_Management_Organization.2FSociety|Collective Rights Management Organizations]]

''Other resources:''

* [http://www.ascap.com/licensing/termsdefined.html ASCAP definitions page]
* [http://www.aimp.org/forums/1,2/Blanket_license Assoc. of Independent Music Publishers definition of blanket license.]
* [http://www.copyright.com/ Webpage of US Copyright Clearance Center]
* [http://www.accesscopyright.ca/ Webpage of Canadian copyright clearance entity]
* [http://www.eff.org/wp/better-way-forward-voluntary-collective-licensing-music-file-sharing EFF page on on collective licensing for music]

==“Browsewrap”==

'''“Browsewrap” is a slang term for a contract governing access to or use of content on a website that does not require the website user to click on a button or otherwise take action to expressly manifest consent to the terms of the agreemen. Typically, the Internet user is considered to have agreed to the terms of the browsewrap agreement by accessing or “browsing” the website.'''

The terms of a browsewrap agreement governing access to a website are not always prominently displayed to the Internet user, and instead are often listed on a separate page that can only be accessed by clicking a link at the bottom of the screen. For this reason, some commentators question whether browsewrap agreements create enforceable contracts.

''See also:''
*[[Glossary#.E2.80.9CClickwrap.E2.80.9D_or_.22Click-on.22|Clickwrap]]

''Other Resources''

* [http://en.wikipedia.org/wiki/Browse_wrap Wikipedia entry on “Browsewrap”]
* [http://faculty.law.wayne.edu/Weinberg/law-in-cyberspace/2008-click_wrap.html US law school assignment on “wrap” licenses.]
* [http://www.cptech.org/ecom/ucita/licenses/browsewrap.html Examples of “browsewrap” licenses]
* [http://www.internetlibrary.com/topics/browse-wrap_agree.cfm Technical legal analysis of recent US case involving “browsewrap”]
* [http://technollama.blogspot.com/2007/09/browse-wrap-agreements-boosted-by-us.html Blog post analyzing a “browsewrap” case]
* [http://law.bepress.com/expresso/eps/1885/ Academic paper on “browsewrap” agreements]
* [http://www.zvulony.com/browse_wrap.html Canadian lawyer discusses “browsewrap” agreements]
* [http://works.bepress.com/cgi/viewcontent.cgi?article=1005&context=samster Academic paper discussing enforceability of “browsewrap” agreements]

==“Cease-and-desist” letter==

'''A letter sent to an alleged copyright infringer or the entity hosting allegedly infringing material, requesting that certain activities be ceased or that access to the allegedly infringing material be disabled.'''

With respect to Internet content, a cease and desist letter can take the form of a [[Glossary#.22Notice_and_Takedown.E2.80.9D|"takedown notice.”]]

'Under the U.S. copyright legislation known as the [[Glossary#DMCA|Digital Millenium Copyright Act]], a copyright holder who believes that a website is infringing the holder’s copyright, usually by hosting protected material without permission, can send a cease-and-desist letter to the entity hosting the material. The website will not be held liable if it immediately takes down the allegedly infringing work upon receipt of the takedown notice. There are procedures under which the person who posted the content can challenge a takedown notice, and have access to the restored.

''Other resources:''
* [http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act Wikipedia entry on DMCA]
* [http://www.free-legal-document.com/copyright-cease-and-desist.html A sample cease and desist letter]
* [http://www.chillingeffects.org/ Chilling Effects - a website devoted to the suppression or censorship of online speech]
* [http://www.techdirt.com/articles/20090726/0341395658.shtml Technology website article on “cease and desist” letters]
* [http://www.citmedialaw.org/blog/2009/inter-newspaper-cease-and-desist-letter-my-trip-buffet-wrong Citizen Media Law Project discussion of a particular cease and desist letter]
* [http://www.scribd.com/doc/2526821/Notice-of-Copyright-Infringement-and-Demand-to-Cease-and-Desist Scribd posting of various cease and desist letters]

==CISAC==

'''The International Confederation of Societies of Authors and Composers. CISAC is an organization composed of numerous national preforming rights societies.'''

According to [http://www.cisac.org its website], CISAC “works towards increased recognition and protection of creators’ rights. CISAC was founded in 1926 and is a non-governmental, non-profit organisation. Its headquarters are in Paris, with regional offices in Budapest, Buenos Aires, Johannesburg and Singapore. . . . . As of June 2008, CISAC numbers 225 authors’ societies from 118 countries and indirectly represents more than 2.5 million creators within all the artistic repertoires: music, drama, literature, audio-visual, graphic and visual arts.”

==“Clickwrap” or "Click-on"==

'''Clickwrap or Click-on is a license agreement for a website or software to which the user agrees by clicking on a button or link.'''

''Once the user clicks on the “I accept” or “I agree” button or link, thereby accepting the license, he or she can access the copyrighted material, and is bound by the terms of the licensing agreement. An “End-User Licensing Agreement” or “EULA” is a classic example of a “clickwrap” agreement. Since the user has no choice except to accept the licensing contract in order to access the content or program, in recent years, both courts and public opinion have begun to perceive these sorts of agreements as at least potentially oppressive.''

See also “shrinkwrap contract," “contract of adhesion”

'''Other Resources'''

* [http://en.wikipedia.org/wiki/Clickwrap Wikipedia article on “clickwrap”]
* [http://cyber.law.harvard.edu/metaschool/fisher/contract/cases/procd.htm Decision from seminal U.S. case on “clickwrap”, ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)]
* [http://www.akamarketing.com/click-wrap-shrink-wrap-contracts.html Article analyzing license types]
* [http://www.wired.com/politics/law/commentary/circuitcourt/2007/08/circuitcourt_0801 An article on why such licenses are coming under criticism]

==Choice of Laws==

'''The doctrine by which a court or other tribunal determines which country’s or jurisdiction’s laws will apply to a particular case or claim.'''

In any legal dispute that crosses political borders, whether domestic or international, there is a question of which laws will apply to the dispute. Such cross-border disputes are increasingly common in the Internet era. For instance, if an Internet user in Italy accesses a server in Sweden, and downloads a copy of a song by a U.S. recording artist, what laws should apply? Where should the trial be held?

A court hearing a suit like this will review the facts and decide what location makes the most sense for the trial, and will also decide which jurisdiction’s laws should apply. It is possible, when writing a contract, to specify what laws will govern in the event of a dispute. Occassionally, the laws of more than one country or jurisdiction might apply to different issues or claims in the same litigation.

''Other resources:''

* [http://en.wikipedia.org/wiki/Choice_of_law Wikipedia article on choice of law]
* [http://www.megalaw.com/top/conflictoflaws.php Site of “choice of laws” resources]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=958854 An academic article entitled "An Overview of Choice of Law, Jurisdiction and Foreign Judgment Enforcement in IP Disputes"]
* [http://www.scribd.com/doc/239477/Conflict-of-Laws-and-Choice-of-Law US law review article: "Conflict of Laws and Choice of Law"]

==Circumvention==

'''The act of avoiding, breaking or otherwise bypassing protections on digital content and technology.'''

Many digital or electronic resources, including online databases, software and more, come with built-in protections which in theory prevent illegal copying or impermissible uses. For example, DVDs may have a “region code” embedded in their data that prevents them from being played on DVD players from different parts of the world. Likewise, software may have added code, or encryption, which prevents it from being copied.

Although these technological barriers may arguably help to protect illegal copying or use of content, they can also get in the way of legitimate uses, such as playing a DVD on a Linux-based player, or making an archival copy of software. A user who wants to do these things will therefore have to circumvent, or break, the protection measures. However, this is illegal to do in many countries.

Notably, in the United States, Section 1201 of the Digital Millennium Copyright Act (1998) specifically forbids circumvention of technological protection measures, and even makes it illegal to sell or own anything that facilitates circumvention.

Laws like Section 1201 are controversial, because from one perspective, the protections a law like this facilitates are parallel to, and can last longer than, those offered by copyright. This arguably defeats the purpose of copyright law’s limited duration protections, violates copyright’s implicit bargain with the public and harms the public domain.

''See also:''

* [[Glossary#TPM_.E2.80.93_Technological_Protection_Measures|Technological Protection Measures]]
* [[Glossary#Right_of_Access|Right of Access]]
* [[Glossary#DMCA|DMCA]]

''Other resources:''

* [http://www.chillingeffects.org/anticircumvention/ Chilling Effects website on anticircumvention]
* [http://en.wikipedia.org/wiki/Anti-circumvention Wikipedia article on aticircumvention]
* [http://www.copyright.gov/1201/ U.S. Government's website on copyright]
* [http://www.sciencemag.org/cgi/content/abstract/293/5537/2028 Abstract of academic paper on anticircumvention]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=320961 An academic paper: “Anti-circumvention Misuse”]
* [http://blogs.law.harvard.edu/ugasser/2004/11/30/eu-anti-circumvention-laws/ Berkman Center resource on anticircumvention]
* [http://books.google.com/books?id=I9L6AAFtxH0C&pg=PA71&lpg=PA71&dq=anti-circumvention++EU&source=bl&ots=4unbi1jd9k&sig=oqoQK3Q1iqyqEdCpTzvkUxxZ1CE&hl=en&ei=rwp1SvGoJaSltgeRjeWWCQ&sa=X&oi=book_result&ct=result&resnum=6#v=onepage&q=anti-circumvention%20%20EU&f=false Google Book excerpt from EU Digital Copyright Law and the End-User]
* [http://ansuz.sooke.bc.ca/lawpoli/copyright/geistbook/2_04_Geist.pdf PDF of Canadian law professor Michael Geist's article “Anti-circumvention Legislation and Competition Policy”]
* [http://portal.acm.org/citation.cfm?id=1314276.1314284 Academic article: “Protecting fair use from digital rights management in China”]

==Copyright==

'''The set of rights granted to the author of a creative work that govern certain third party uses of the work.'''

These rights vary from country to country, although there is substantial international harmonization. They can typically be divided into economic rights and so-called “moral” rights.

With respect to the economic rights, they essentially represent a temporary monopoly over the creative work in question. In theory, this monopoly control is supposed to incentivize and reward creator, convincing them to create more. However, when the term of copyright ends, the work belongs to the public. The public’s gains from the creation of new works is thought to compensate for the inefficiencies that a monopoly represents. Economic rights are truly “property” in that they can be sold, assigned, inherited, divided up, and more.

With respect to “moral” rights, these belong to the author at the moment of creation, and cannot usually be transferred to anyone else.

''See also:''
* [[Glossary#Rights|Rights]]

''Other resources:''

* [http://www.copyright.gov/help/faq/faq-general.html#what US Government’s copyright website]
* [http://www.eucopyright.org/ EU’s copyright website]
* [http://ec.europa.eu/internal_market/copyright/index_en.htm EU internal markets copyright website]
* [http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/Home Canadian Intellectual Property Office website]
* [http://www.eucopyright.com/ Private website devoted to EU copyright law]
* [http://www.chinaiprlaw.com/english/laws/laws10.htm Copy of Chinese copyright law (English)]
* [http://www.cric.or.jp/cric_e/clj/index.html Copy of Japan’s copyright law (English)]

==Common Law==

'''A legal system based primarily on custom and the precedent of court decisions.'''

International legal systems tend to fall into one of three categories. Typically found within countries that have some historical connection with the United Kingdom or the former British Empire ,“common law” systems have a legal system based primarily on custom -- the precedent set by court decisions (“case law”) , in contrast to civil law systems or religious law systems.

''See also:''

* [[Glossary#Civil_Law|Civil Law]]
* [[Glossary#Religious_Legal_System|Religious Legal System]]

''Other resources:''

* [http://en.wikipedia.org/wiki/Common_law Wikipedia Article on the “common law”]
* [http://books.google.com/books?id=xXouAAAAIAAJ&dq=common+law&printsec=frontcover&source=bl&ots=8XbPPUS3Vd&sig=Oa5KoDXWXQdGWWri9ojJKCziJgc&hl=en&ei=Og91StPgC6WutgecttWWCQ&sa=X&oi=book_result&ct=result&resnum=3#v=onepage&q=&f=false Google Book, The Common Law by O.W. Holmes]
* [http://www.britannica.com/EBchecked/topic/128386/common-law Britannica article on the “common law”]

==Collective Rights Management Organization/Society==

'''An organization that controls the economic rights to a large number of creative works.'''

Also known as “collecting society” or a "copyright collective.”

A collective rights management organization or society most often deals with the rights to music and text. These groups lower the transaction costs of acquiring rights, and make it easy for would-be users of copyrighted works to get permission to do so. With a collective rights group, there need only be one set of negotiations and one fee paid, regardless of how many different works are used. Compare having to find and negotiate with the rights-holders for one hundred different songs with negotiating a single contract.

While groups like this undoubtedly solve a market problem, criticisms leveled against them include that they do not channel enough of the fees they receive to the actual artists, and that they seek to unfairly charge for uses over which they should not have control. Also, most notably, there are no collective rights groups managing the rights to sound recordings, which has led to much controversy over sampling.

Some collective rights management organizations include:

* [http://www.ascap.com/index.aspx ASCAP (United States)]
* [http://www.cisac.org/ CISAC (International)]
* [http://www.soundexchange.com/ SoundExchange (United States)]
* [http://www.harryfox.com/index.jsp Harry Fox Agency (United States)]
* [http://www.gesac.org GESAC (European Union)]
* [http://www.agicoa.org/ AGICOA website (International)]
* [http://www.biem.org/ BIEM (International)]
* [http://www.cepic.org/issues/2007/12/statement_collective_rights_management_2000 CEPIC (European Union)]
* [https://www.ige.ch/en/ IGE (Switzerland)]

''Other resources:''

* [http://www.eifl.net/cps/sections/services/eifl-ip/issues/handbook/collective-rights EIFL handbook on Collective rights]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=998328 Academic paper “Economic Functions of Collecting Societies - Collective Rights Management in the Light of Transaction Cost - and Information Economics”]
* [http://www.slideshare.net/paulkeller/creative-commons-collective-rights-management-presentation Dutch slide presentation on collective rights and Creative Commons]

==Compulsory License==

'''A license for use of copyrighted material that is mandated by law to be made available to everyone on an equal basis, usually in exchange for the payment of a set fee.'''

From the user’s perspective, it is a use for which the user does not need to seek permission. That is, the rights-holder may not refuse to grant the license to the user. The rights-holder still has the right to whatever revenue comes from the use, but has no rights of control.

Such licenses are always non-exclusive, since anyone can obtain one, and the fees that are paid to the rights-holder for them are usually set by statute. An example of a compulsory license is the so-called “mechanical license” under U.S. law for recording a new version of an existing song. Once a song has been released to the public, any other artist may record a version of it, and must pay a set fee (currently 2.5 cents per copy) to the rights-holder of that song.

This is not the only example of a compulsory license. There is a wide variety, whose nature and terms depend on the laws of the country in question, and the nature of the work. Compulsory licensing schemes exist for music, text, pharmaceuticals and more.

Recently, some copyright scholars and activists have proposed that the solution to the perceived problem of peer-to-peer filesharing will be some sort of compulsory licensing scheme. Filesharing would become legal, but artists would get paid, most likely out of a fund created by levying taxes on recordable media and associated technologies.

'''Other resources:'''

* [http://en.wikipedia.org/wiki/Compulsory_license Wikipedia article on compulsory licenses]
* [http://www.copyright.gov/circs/circ73.pdf US Government PDF on compulsory licenses]
* [http://www.cptech.org/ip/health/cl/ Website with list of resources on compulsory licensing (English)]
* [http://lawmeme.research.yale.edu/modules.php?name=News&file=print&sid=1241 Academic blog on compulsory licensing, with links to other posts]
* [http://www.wto.org/english/tratop_e/TRIPs_e/public_health_faq_e.htm WTO website]
* [http://www.cato.org/pubs/pas/pa508.pdf Robert Merges of the Cato Institute's analysis of compulsory licensing (English, US) academic, English]
* [http://jiplp.oxfordjournals.org/cgi/content/extract/2/5/324 Academic article “Compulsory licensing of IP rights: Has EC competition law reached a clear and rational analysis following the IMS judgment and the Microsoft decision?]

==Civil Law==

'''A legal system in which the law is based almost exclusively on legislation.'''

Such a system is as opposed to a common law system (based on tradition and court decisions) or a religious law system. Civil law regimes tend to be either inspired by or directly descended from Roman legal systems.

[http://en.wikipedia.org/wiki/Civil_law_%28legal_system%29 According to Wikipedia], “The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. It is the most prevalent and oldest surviving legal system in the world.”

Most of Europe and its former colonies have civil law-based legal systems, many of which hearken back to the [http://en.wikipedia.org/wiki/Code_Napoleon Napoleonic Code.]

This version of civil law is not to be confused with the sort that occurs in the civil law / criminal law distinction, in, among others, U.S. law.

''See also:''

* [[Glossary#Common_Law|Common Law]]
* [[Glossary#Religious_Legal_System|Religious Legal System]]

'''Other resources:'''

* [http://en.wikipedia.org/wiki/Civil_law_%28legal_system%29 Wikipedia Article on Civil Law]
* [http://www.britannica.com/EBchecked/topic/119262/civil-law Britannica article on Civil Law]
* [http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf PDF “A Primer on the Civil Law System” (academic)]
* [http://iuscivile.com/ List of resources on Civil Law]

==Commons==

'''This term refers to both the property that is owned by the community in general and the social regime for governing usage of that resource.'''

Some historical commons were truly open to all, but some were governed by rules that limited access. However, despite what might seem like a complete lack of any rules for governing the maintenance and usage of a commons, they were historically at the center of a complex web of social norms, and were well-monitored and maintained.

In the late 1960s a school of thought emerged whcih claimed that any real commons would quickly be over-exploited by an economically rational user, and that only private ownership could successfully manage societal resources.

Although this idea was quickly and widely accepted, it has been challenged in recent years for misstating the facts surrounding historical commons, as well as for overlooking the real problems that can arise from complex webs of private ownership, a problem [http://en.wikipedia.org/wiki/Michael_Heller_%28law_professor%29 Michael Heller] has called “the tragedy of the anti-commons.”

With respect to copyright, the commons is the enormous body of creative work to which all of society has access. Some is historical, some is contemporary. Everyone having access to them does not necessarily mean that no one holds copyright in the works that make up the commons. Some works are in the public domain, which means that not only can anyone access them and make use of them, but that no one has the right to restrict their usage in anyway. On the other hand, works existing under regimes such as Creative Commons, or the GPL license , as well as so-called “Open Access” journals, are examples of copyright-controlled information that is nonetheless part of the commons. For example, the works of Shakespeare, or a culture’s folktales, are part of the commons, as is any modern work which its author has dedicated to the public domain. Further, any work to which anyone has access, but for which the usages are restricted (usually with respect to keeping further uses of the work open to access) are still considered part of the commons.

''See also:''

* [[Glossary#Public_Domain|Public Domain]]

'''Other resources:'''

* [http://www.garretthardinsociety.org/articles/art_tragedy_of_the_commons.html Garret Hardin’s seminal 1968 article on “Tragedy of the Commons”]
* [http://en.wikipedia.org/wiki/Tragedy_of_the_commons Wikipedia article on "tragedy of the commons"]
* [http://www.youtube.com/watch?v=L8gAMFTAt2M Garrett Hardin interview]
* [http://www.flickr.com/commons?phpsessid=ea7b4da468f5935f24b65f41dbfc356f Flickr’s archive of photos in the commons. a public photography archive]
* [http://yupnet.org/boyle/ The Public Domain: Enclosing the Commons of the Mind by James Boyle]
* [http://www.gridlockeconomy.com/ Michael Heller’s website]
* [http://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/4445/Suber_Creating_041004.pdf?sequence=1 Academic article "Creating An Intellectual commons Through Open Access" by Peter Suber]

==Compilation==

'''A work that gathers together other previously existing copyrighted works or facts.'''

For example, an anthology of stories is a compilation. A recording that brought together songs from a wide variety of artists, such as a soundtrack album, would be a compilation. A database is also a compilation, of facts rather than creative works. In many jurisdictions, it is possible to hold a separate copyright in a compilation that is independent of any copyright in the works that make it up, as long as there is sufficient creativity in the selection and arrangement of the works. It is also possible to hold copyright in a database, based on the selection and arrangement of its factual elements, or alternatively, based on the effort that went into creating it.

''Other resources:''

* [http://www.copyright.gov/title17/92chap1.html#103 U.S. Law on compilations]
* [http://www.pddoc.com/copyright/compilation.htm US legal resources on compilations (English, US)]
* [http://www.bitlaw.com/copyright/database.html Legal website's page on databases (English, US)]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1299012 Australian law review article “Compilation Copyright: A Matter Calling for 'a Certain...Sobriety'"]
* [http://www.internetlibrary.com/topics/copyright_compilatio.cfm A list of compilation cases]
* [http://books.google.com/books?id=_s_e_YhjQsQC&pg=PA8&lpg=PA8&dq=compilation+copyright&source=bl&ots=RCOegs1pN-&sig=1PLYa0lf1nmycbNcJ5l20UWgqvo&hl=en&ei=LyJ2SqHBJOattgfhyt2WCQ&sa=X&oi=book_result&ct=result&resnum=6#v=onepage&q=compilation%20copyright&f=true Google Book excerpt: Kennneth Crews on compilations]
* [http://www.law.cornell.edu/copyright/cases/499_US_340.htm Text of ''Feist v Rural Telephone'', the seminal U.S. case on copyright in compilations]

==CONFU==

'''An abbreviation of the “Conference on Fair Use.”'''

The Conference on Fair Use was a series of meetings held in the United States in the mid to late 1990s. The purpose of CONFU was to have a meaningful discussion about “fair use” in an increasingly digital age, especially for academics and librarians. However, due in large part to fundamental disagreements among the various represented interest groups, the meetings failed to achieve any meaningful consensus.

''See also:''

*[[Glossary#.E2.80.9CFair_Use.E2.80.9D|Fair Use]]

''Other resources:''

* [http://www.uspto.gov/web/offices/dcom/olia/confu/report.htm Text of CONFU report ]
* [http://www.utsystem.edu/OGC/IntellectualProperty/confu.htm CONFU page from University of Texas’ copyright guidelines. (English, US)]
* [http://www.utsystem.edu/OGC/IntellectualProperty/imagguid.htm University of Texas guidelines about use of images]
* [http://www.arl.org/pp/ppcopyright/copyresources/confu-main.shtml Association of Research libraries resource on CONFU]

== Counterfeiting ==

'''Counterfeiting is the practice of making illegal copies of something and then attempting to pass the copies off as the real thing.'''

Almost anything can be copied, whether currency, material goods, or intellectual property. A counterfeiter hopes to take advantage of any positive reputation that the original enjoys without having to invest time and resources in creating it. Counterfeits damage the original by competing with it in the marketplace and by hurting the original’s reputation.

''Other resources:''

* [http://www.gonzagaip.org/blog/?p=8 IP Law organization analysis of French court ruling about counterfeiting]

==Course Pack==

'''A collection of documents put together by a teacher as a resource for students in a particular course or class.'''

Often, teachers with a specific curriculum in mind will wish to assemble their own materials rather than teach from a particular textbook. As a corollary to this, a teacher creating a curriculum drawing on a wide range of resources may wish to simply provide her students with only the materials they need, rather than requiring them to purchase many books, often at great cost, each of which will contain only a small piece of the curriculum, and the majority of the contents of which will be superfluous.

Of course, creating such a “course pack” necessitates the copying of the relevant works, implicating copyright law. Such copying may or may not fall under fair use, fair dealing, or other exceptions to copyright, depending on the circumstances and the jurisdiction. There have been two seminal cases in the United States dealing with course packs and copyright, both of which were resolved against the universities in question. It is noteworthy, though, that each of those cases involved a for-profit copying service.

''Other resources:''

* [http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter7/7-a.html Stanford Fair Use Center on course packs]
*[http://www.law.cornell.edu/copyright/cases/99_F3d_1381.htm Text of ''Princeton Univ. v. Michigan Document Servs.'', 99 F.3d 1381 (6th Cir. 1996).)]
* [http://www.bc.edu/bc_org/avp/cas/comm/free_speech/basicbooks.html Text of ''Basic Books Inc. v. Kinko's Graphics Corp.'', 758 F.Supp. 1522 (S.D. N.Y. 1991).)]
* [http://www.universityreaders.com/coursepack/ Professional course pack service]
* [http://everybodyslibraries.com/2008/04/16/coursepack-sharing-an-idea-whose-time-has-come/ Article on course packs.]
* [http://www.aaup.org/AAUP/pubsres/academe/2001/JF/Feat/nels.htm Article on course packs from American Assoc. of University Publishers]
* [http://distance.uaf.edu/archives/bookstore/subbookstore/coursepack-request.php A distance learning organization’s course pack request form]
* [http://www.mcgilldaily.com/article/2987-course-packs-could-go-online- Canadian article on using course packs online]

==Creative Commons==
''' “Creative Commons is a nonprofit corporation dedicated to making it easier for people to share and build upon the work of others, consistent with the rules of copyright.”'''

The above definition comes from the Creative Commons website. The organization was founded in 2001 by, among others, Harvard Professor Lawrence Lessig. Its goal was to provide simple, easy to understand and use copyright licenses that would allow creators to share their work with the world under terms they were comfortable with, so people can share, remix, and/or use them commercially, rather than the default terms offered by statute. Currently, Creative Commons offers 6 different licenses (in 50 countries and counting), whose features vary according to their permissiveness, and the uses they allow. The existence and terms of these special licenses are communicated to users by employing both the Creative Commons name and a series of icons that suggest the specific terms of the license.

A 2008 U.S. case, ''Jacobsen v. Katzer'', concerning later usage of software licensed under a license similar in style and intent to those offered by Creative Commons held that the license was a valid one, and that violating it terms constituted copyright infringement. The ruling greatly strengthened the enforceability of such agreements, helping their use to be perceived as more mainstream and legitimate.

''Other resources:''

* [http://creativecommons.org/ Creative Commons’ website]
* [http://cyberlaw.stanford.edu/packet/200810/breach-conditions-free-and-open-source-software-licenses-may-constitut Stanford Fair Use site on the ''Jacobsen v. Katzer'' case above]
* [http://www.klgates.com/newsstand/Detail.aspx?publication=4876 US law firm analyzes legal implications of ''Jacobsen v. Katzer'']

==Collective work==

'''A creative work that represents the creative input of more than one author.'''

When two or more people share the copyright in a work they are referred to as “joint authors” A movie is a classic example of a collective work, involving as it does the efforts of hundreds, if not thousands, of people. Nevertheless, the rights to collective works are usually held by only one, or at most a few, people. In the case of a movie, most of the people working on it are treated, by their contract, as employees, rather than as joint authors.

==Damages==

'''The money given to a copyright holder to compensate him or her for the harm caused by infringement.'''

Whenever the copyright in a work is infringed, there is at least the theoretical possibility that the legal holder of the copyright has been harmed in some way. If the rights-holder sues the infringer and wins, a court may award damages to the rights holder as way of compensating them for any damage that has been done. A rights-holder may seek actual or statutory monetary damages,depending on which she thinks are more valuable, or easier to determine, or an injunction compelling the defendant to cease the infringing activities.

====Actual Damages====

'''Actual damages represent the true cost of the harm suffered as a result of the infringement.'''

For example, if it were possible to determine exactly how many sales had been lost as a result of an act or acts of infringement, it would be possible to calculate actual damages. One thousand sales lost, at a profit of ten euros a sale = ten thousand euros damages. In practice, it can be very difficult to accurately calculate actual damages. When this is true, statutory damage provisions will frequently be used instead.

====Statutory Damages====

'''Statutory damages are damages where the amount of money a rights-holder may collect as damages is set by statutes.'''

Many legal regimes contain provisions for statutory damages. For example, in US law, 17 USCA 504(c) states that “Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.” For willful infringement, the amount can go up to $150,000!

''Other resources:''

* [http://www.minterellison.com/public/connect/Internet/Home/Legal+Insights/Newsletters/Previous+Newsletters/A-D-Damages+for+moral+rights+infringements Australian law firm’s analysis of case where artist is awarded damages for moral rights]
* [http://www.vlaa.org/assets/documents/VARA.pdf PDF of "An Artist’s Guide to VARA"]
* [http://en.wikipedia.org/wiki/Visual_Artists_Rights_Act Wikipedia article on VARA]
* [http://www.artslaw.org/vara.htm IP lawyer discusses VARA]
* [http://www.law.uconn.edu/homes/swilf/ip/statutes/vara.htm Text of VARA]
* [http://www.truefresco.org/2008/04/renowned-muralist-kent-twitche.html Article discussing an artist’s lawsuit over desecration]

==Database==

'''A database is a collection of data on a particular topic or topics, usually searchable, aggregated into one place.'''

Databases have an unusual relationship with copyright. The creator of a database can hold copyright in the database, but only in certain aspects of it, because the contents of a database are either facts, in which case they aren’t copyrightable at all, or they are non-factual, but therefore already under copyright, and controlled by different rights-holders. However, a lot of work can go into creating a database, and some jurisdictions recognize and protect that labor.

For example, in the U.S., the copyright in databases is colloquially known as “thin” ( as opposed to "thick") and is only in the selection and arrangement of the materials. On the other hand, in the European union, databases receive 15 years of protection to protect the investment of time, money and resources on the part of the database creator.

''See also:''

*[[Glossary#Compilation|Compilation]]

''Other resources:''

* [http://books.google.com/books?id=6bFgLrNke40C&pg=PA110&lpg=PA110&dq=assignment+of+copyright+EU&source=bl&ots=TfawTWnsyT&sig=So4Tf4U_ArceAf1AtsstC4y8Vmc&hl=en&ei=K0lySsLGK47oMZCiobEM&sa=X&oi=book_result&ct=result&resnum=5#v=onepage&q=&f=false Google Books Entry Legal Protection of Databases by Mark J. Davison]
* [http://ec.europa.eu/internal_market/copyright/prot-databases/prot-databases_en.htm EU’s webpage on database and their protection]
* [http://www.unc.edu/courses/2006spring/law/357c/001/projects/dougf/node5.html American law professor Lolly Gasaway’s paper on databases]
* [http://www.copyright.gov/docs/regstat092303.html Testimony to US government on database protection act]
* [http://www.copyright.gov/reports/dbase.html US Copyright Office’s report on legal protection for databases]
* [http://www.codata.org/codata/codata02/03invited/Tabuchi/Tabuchi_CODATA_ejournal.pdf PDF of WIPO report on effects of international legal protection for databases]

==Datamining==

'''The practice of sifting through large quantities of data, often in a database, to identify and make use of the patterns and details that emerge.'''

For example, consumer goods corporations mine the data generated by frequent shopper cards in order to better target advertisements. The company Google mines the data generated by the searches it performs to more accurately perform subsequent searches and to effectively target the advertisements that are alongside. Scientists mine the data generated by large-scale surveys of natural phenomena, whether astronomical observations or genetic codes.

Depending on the sort of data being mined, privacy issues can become a very real and important concern.

''Other resources:''

* [http://en.wikipedia.org/wiki/Data_mining Wikipedia article on data mining]
* [http://en.wikipedia.org/wiki/Cross_Industry_Standard_Process_for_Data_Mining Wikipedia article on data mining standards]
* [http://www.anderson.ucla.edu/faculty/jason.frand/teacher/technologies/palace/datamining.htm Article “What is Data mining?"]
* [http://www.dhs.gov/xlibrary/assets/privacy/privacy_rpt_datamining_200812.pdf PDF of US Legislature report on data mining]
* [http://www.allacademic.com/meta/p_mla_apa_research_citation/2/5/3/9/3/p253934_index.html Article “The Policy Tools of Securitization: Data Mining, EU Foreign and Interior Policies”]
* [http://ieeexplore.ieee.org/xpl/freeabs_all.jsp?arnumber=4053016 Report from the Sixth International Conference on Data Mining-Copyright]

==Derivative work==

'''A derivative work is one that adapts or modifies an existing work, drawing on that work for its substance and general material.'''

A film based on a novel is a derivative work of that novel. An action figure based on a character from an original film is a derivative work of the film.

A derivative work may or may not be copyrightable on its own, depending on how much original material it contains, and whether permissions were granted for the copied material. The U.S. copyright office says “To be copyrightable, a derivative work must be different enough from the original to be regarded as a new work or must contain a substantial amount of new material.”

For example, Alfred Bester’s novel'' The Stars My Destination ''is inspired by and modeled after Dumas’'' The Count of Monte Cristo. ''It is arguably a derivative work of that older novel. However, Bester's book clearly has sufficient original material to qualify for copyright protection on its own, and further, is original enough that it would not infringe copyright in Dumas’ book, were that book still protected by copyright. On the other hand, an independent screenwriter's new screenplay featuring the "Rocky" character made famous by Sylvester Stallone was found to be clearly a derivative work, in which no copyright could be had.

''See also: ''

* [[Glossary#.E2.80.9CFair_Use.E2.80.9D|Fair Use]]
* [[Glossary#Right_of_Adaptation|Right of Adaptation]]
* [[Glossary#Idea_.2F_Expression_Dichotomy|Idea / Expression Dichotomy]]

''Other resources:''

* [http://www.chillingeffects.org/derivative/ Chilling Effects webpage on derivative works]
* [http://www.chillingeffects.org/derivative/faq.cgi Chilling Effects FAQ on derivative works]
* [http://www.linuxjournal.com/article/6366 Computer industry article on derivative works]
* [http://www.copyright.gov/circs/circ14.pdf US Government circular on derivative works]
* [http://en.wikipedia.org/wiki/Derivative_work Wikipedia article on derivative works]
* [http://www.altlaw.org/v1/cases/1081598 Text of seminal US court decision on derivative works, ''Lee vs. A.R.T.'']

==DMCA==

'''The DMCA is the short name for the Digital Millennium Copyright Act.'''

The DMCA is copyright legislation that was passed in the United States in 1998. Its intended purposes were to bring U.S.copyright law more into harmony with international norms and to address many of the new concerns that digital technology and file-sharing raised. The DMCA contains the now-notorious anti-circumvention provisions, which made it illegal, even for a legitimate user, to avoid, break or disable any technological measures protecting content. It also created what are known as “safe harbors”, descriptions of behavior where Internet service providers could be certain they would not be legally liable for the actions of their users.

''See also:''

* [[Glossary#.E2.80.9CCease-and-desist.E2.80.9D_letter|"Cease and Desist" Letter]]
* [[Glossary#Circumvention|Circumvention]]
* [[Glossary#DRM|DRM]]
* [[Glossary#TPM_.E2.80.93_Technological_Protection_Measures|TPM]]
* [[Glossary#WIPO|WIPO]]

''Other resources:''

* [http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281: Text of the DMCA]
* [http://www.copyright.gov/legislation/dmca.pdf US Copyright Office’s explanation of the DMCA]
* [http://www.eff.org/issues/dmca EFF webpage on DMCA]
* [http://www.gseis.ucla.edu/iclp/wipo1.htm Text of WIPO treaty to which the DMCA responded]
* [http://www.chillingeffects.org/dmca512/faq.cgi Chilling Effects FAQs on DMCA]
* [http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act Wikipedia Article on DMCA]
* [http://news.cnet.com/2010-1071-825335.html News editorial on DMCA]
* [http://secondlife.com/corporate/dmca.php Second Life white paper on DMCA take-down notices]

==DRM==

'''DRM, or “Digital Rights Management” is a catch-all term for any technological measures, usually but not always software-based, that are put in place to protect copyrighted content.'''

DRM usually works by restricting access to the content in some way. DRM applies to all would-be users of the content, event those who have purchased it, or the right to access it, legally. Most DRM techniques are also easily circumvented by a technically adept and/or determined user. Therefore, DRM has the net effect of inconveniencing legitimate users, sometimes seriously, and being a minor inconvenience at best for professional criminal users. Additionally, certain forms of DRM can raise serious privacy concerns, as well as call into question the very idea of “ownership” of digital information.

For these reasons, DRM has been heavily criticized, and there may be a trend in the content industry away from its use. For example, after many complaints from users, iTunes and Amazon now offer DRM-free music downloads, and most of the major record labels have given up on DRM for digital music. However, the Recording Industry Of America, and the Motion Picture Industry of America have both said that they see DRM being part of their business models for the foreseeable future.

''Other resources:''

* [http://en.wikipedia.org/wiki/Digital_rights_management Wikipedia article on DRM]
* [http://mashable.com/2008/01/04/drm-officially-dead-as-even-sony-bmg-drops-it/ Article discussing DRM and its prospects]
* [http://news.cnet.com/8301-10784_3-9939189-7.html News article on DRM in music industry]
* [http://www.almaden.ibm.com/cs/people/hongxia-jin/DRM2009/ Webpage for international workshop on DRM]
* [http://www.eff.org/issues/drm EFF webpage on DRM]
* [http://en.wikipedia.org/wiki/Sony_BMG_CD_copy_protection_scandal Wikipedia article on Sony’s rootkit scandal]
* [http://www.npr.org/templates/story/story.php?storyId=102605547 US’s National Public Radio story on DRM]
* [http://www.techcrunch.com/2008/01/04/europe-wants-to-force-drm-interoperability/ Article on European DRM interoperability]

==Due diligence==

'''Due diligence refers to the level of effort someone must make in order to have fulfilled their legal duties in a particular situation.'''

It is the standard of care that person must exercise. In the copyright context, the term is most often encountered with respect to the necessary efforts a would-be user of content must make to locate the holder of the rights in a particular piece of content. This has become an important concept recently with respect to so-called ”orphan works” and the Google Book Search project.

''Other resources:''

* [http://en.wikipedia.org/wiki/Due_diligence Wikipedia article on due diligence]
* [http://www.panix.com/~checker/ccddc.htm An economist’s article on copyright reform]
* [http://www.legalmatch.com/law-library/article/due-diligence-for-copyright.html Short legal article on due diligence]
* [http://www.chinalawinsight.com/2009/02/articles/intellectual-property/copyright-due-diligence-investigations-in-china-legal-entity-work-or-occupational-work/ Chinese website’s analysis on due diligence in Chinese copyright law]
* [http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00245 Text of testimony to US Senate, concerning orphan works]
* [http://www.publicknowledge.org/issues/ow Public Knowledge’s page on orphan works]
* [http://www.copyright.gov/orphan/ US Copyright Office webpage on orphan works]

==Economic Rights==

'''The rights associated with copyright that allow the rights holder to exercise control over use of the work for economic benefit.'''

Economic rights include, among others, the right to make and sell copies, to perform the work publicly, and to prepare derivative works.

==EIFL==

'''A nonprofit organization that advocates for access to library resources across the world.'''

According to [http://www.eifl.net EIFL's website:]

''“EIFL.net is a not for profit organisation that supports and advocates for the wide availability of electronic resources by library users in transitional and developing countries.''

''"EIFL’s core activities are negotiating affordable subscriptions on a multi-country consortial basis, supporting national library consortia and maintaining a global knowledge sharing and capacity building network in related areas, such as open access publishing, intellectual property rights, open source software for libraries and the creation of institutional repositories of local content.

''The EIFL.net vision is to provide leadership and be a strong international advocate for expanded availability of electronic resources and to enhance the skills base of EIFL's library consortia, so that they are at the leading edge of developments. EIFL’s mission is to: (1) assist in the building of strong national consortia; (2) be the premier multi-country negotiator for securing affordable commercial electronic information services; (3) provide strong advocacy and support for the development and accessibility of local digital resources; (4) provide an effective central advisory and capacity building program in open access publishing, copyright and free and open source software for libraries (5) leverage multi-national expertise and resources to fulfill this mission; (6) provide top quality educational and consulting services; (7) be an advocate for the adoption and advancement of effective information distribution models; and (8) develop model partnerships with global funding agencies, foundations, consortial groups, and content providers.”''

==Exceptions and Limitations==

'''The exceptions and limitations to the otherwise exclusive rights of a copyright holder.'''

While copyright is usually conceptualized as the granting of a monopoly for a limited period of time, there are nearly always exceptions and limitations to the otherwise exclusive rights of a copyright holder. These can be statutory or customary, and represent uses for which a user need not get permission, or for which fees are preset, or something else that places limits on the monopoly of the copyright holder. These exceptions and limitations are often driven by public policy concerns.

“Fair use” in U.S. law and “fair dealing” in some other parts of the world, are classic examples of doctrines that place a limitation on the copyright holder’s monopoly. Any form of compulsory licensing would be another. Some exceptions are directed at particular classes of user, such as the exceptions pertaining to making copies for the disabled.

====Rule-based====

Rule-based exceptions are those whose qualities are described in specific detail, so that a particular use either does or does not qualify as an exception.

The Chaffee Amendment in U.S. Copyright law that exempts the making of copies for the disabled is an example of a rule-based exception.

====Guideline-based====

A guideline-based exception or limitation is one that sets forth one or more factors to consider when determining whether a particular use is fair, rather than hard and fast bright-line rules.

Any particular use must be evaluated on an individual basis to determine if it qualifies for the exception. For example, the “fair use” doctrine in U.S. law, which lists four non-exhaustive factors and partial list of suggested fair uses, is a guideline-based exception.

====Library exceptions====

Libraries are often treated as a special sub-class of users of copyrighted material because of the public nature of their mission and the strong public policy arguments in their favor. As such, they enjoy a unique set of exceptions and limits on copyright law in many countries. While the copyright law concerning libraries varies from country to country, there are some near-universal general exceptions for libraries.

====Preservation====

Libraries are frequently permitted to make copies of works in order to preserve them, or for archival purposes, without violating the copyright in those works.

This is in line with the traditional role of libraries as repositories of knowledge.

====Loaning====

Under certain circumstances, libraries are permitted to make copies of copyrighted works for the purpose of loaning them to patrons or to other libraries without violating the copyright in those works.

====Research====

Libraries are often permitted to make copies of copyrighted works for research purposes (whether their own or that of their patrons) without violating the copyright in those works.

''Other resources:''

* [http://en.wikipedia.org/wiki/Limitations_and_exceptions_to_copyright Wikipedia article on limitations and exceptions]
* [http://www.copyright.gov/1201/ US Copyright Office’s Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works]
* [http://www.resourceshelf.com/2009/05/27/statement-of-principles-on-copyright-exceptions-and-limitations-for-libraries-and-archives/ International Federation of Library Associations Statement of Principles on exceptions and limitations]
* [http://wiki.ocwconsortium.org/index.php?title=Copyright_Exceptions_and_Limitations Open Courseware Consortium’s wiki on exceptions and limitations]
* [http://www.ifrro.org/upload/documents/WIPO%20SCCR%20Joint%20Position%20_1029%202008_%20EN.pdf PDF of IFRRO's joint position on exceptions and limitations – statement to WIPO]
* [http://www.ifla.org/en/publications/statement-of-principles-on-copyright-exceptions-and-limitations-for-libraries-and-archi IFLA Statement of Principles on Copyright Exceptions and Limitations for Libraries and Archives]
* [http://lawprofessors.typepad.com/law_librarian_blog/2009/05/drm-and-copyright-exceptions-for-libraries-empirical-assessment-of-article-64-of-the-information-soc.html Law professors’ blog analysis “DRM and Copyright Exceptions for Libraries: Empirical Assessment of Article 6(4) of the Information Society Directive”]
* [http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192 WIPO study on exceptions]
* [http://www.eifl.net/cps/sections/news/press-area/2008-10-29 eIFL press release on exceptions and limitations]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1415012 Kenneth Crews study on limitations and exceptions]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1415012 Copyright Alliance Statement on exceptions and limitation]

==“Fair Use”==

'''A tenet of U.S. copyright law that describes the circumstances under which one can sometimes make use of protected works without first getting permission or paying the rights holder.'''

Fair use is a tenet of U.S. copyright law, found in 17 U.S.C. section 107. It is often referred to as a “safety valve” for free speech, and is one of the two aspects of U.S. copyright law that help to prevent copyright’s monopoly from interfering with freedom of speech, another important U.S. right enshrined in the U.S. Constitution. (The other aspect of U.S. copyright law that seeks to balance the copyright monopoly against the public's interest in free speech is the idea/expression dichotomy.)

Fair use is a set of guidelines, rather than a rule, and is evaluated on a case-by-case basis according to four non-exclusive factors. These are:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit 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;

The effect of the use upon the potential market for, or value of, the copyrighted work .

Because of its status as a "safety valve" for speech, fair use is often called upon or relied on by content users attempting to assert their rights under copyright law. However, because fair use is not clearly defined and can be hard to interpret, and because a copyright lawsuit can be extremely expensive, many users are scared or reluctant to rely on fair use when they use copyrighted works. This, in turn, has led to an effort by some groups to “reclaim fair use” for the public, and prevent what author Lewis Hyde has called “the third enclosure” of the common, that of the mind.

''Other resources:''
* [http://www.copyright.gov/fls/fl102.html US Copyright Office page on fair use]
* [http://www.law.cornell.edu/uscode/17/107.shtml Text of US law on fair use]
* [http://fairuse.stanford.edu/ Stanford University Libraries’ Fair Use page]
* [http://www.centerforsocialmedia.org/resources/fair_use/ Center for Social Media’s fair use section]
* [http://w2.eff.org/IP/eff_fair_use_faq.php EFF page on fair use]
* [http://cyber.law.harvard.edu/research/freedomtoteach Berkman Webpage for “Freedom To Teach” about fair use in teaching]
* [http://www.nytimes.com/2008/11/16/magazine/16hyde-t.html?partner=permalink&exprod=permalink NY Times article on Freedom to Teach founder Lewis Hyde]
* [http://en.wikipedia.org/wiki/Fair_use Wikipedia article on fair use]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=875384 Academic paper on fair use "Google Book Search: Fair Use, Fair Dealing and the Case for Intermediary Copying"]

==“Fair Dealing”==

'''The term used in the United Kingdom and other Commonwealth nations to describe the circumstances under which one can use copyrighted works without payments or permission.'''

Somewhat similar to the concept of “fair use” in the United States, “fair dealing” is found in many common law jurisdictions, such as Canada, Australia, New Zealand and others. Unlike fair use, which is a set of guidelines, fair dealing in most countries is limited specific categories of use. If a particular use falls into one of these categories, a court will ascertain whether, on balance, it should be considered "fair." It is usually considered somewhat more predictable but also somewhat less flexible than the concept of “fair use” employed in the United States.

''Other resources:''

*[http://www.copyright.org.au/pdf/acc/infosheets_pdf/g079.pdf Australian Copyright Council document on fair dealing]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=875384 Academic paper "Google Book Search: Fair Use, Fair Dealing and the Case for Intermediary Copying"]
* [http://www.economicexpert.com/a/Fair:dealing.htmlAustralian analysis of fair dealing]
*[http://www.ukoln.ac.uk/services/elib/papers/pa/fair/ UK fair dealing guidelines]
* [http://davidakin.blogware.com/blog/_archives/2009/7/31/4274099.html Canadian blog analysis of fair dealing]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1014404 Academic paper "Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use"]
* [http://www.myitlawyer.com/2009/fair-dealing-exceptions-in-uk-copyright-law/ Lawyer’s discussion of UK fair dealing]
* [http://en.wikipedia.org/wiki/Fair_dealing Wikipedia article on fair dealing]

==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.

''Other resources:''

* [http://en.wikipedia.org/wiki/First-sale_doctrine Wikipedia article on first sale]
* [http://en.wikipedia.org/wiki/Exhaustion_of_rights Wikipedia article on exhaustion of rights]
* [http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/Exhaustion%20of%20rights%20article.htm Canadian discussion of exhaustion of rights]
* [http://williampatry.blogspot.com/2005/05/is-there-hole-in-first-sale-doctrine.html William Patry blog entry on first sale and possible exceptions]
* [http://www.bc.edu/bc_org/avp/law/st_org/iptf/headlines/content/1998040801.html US law journal article discussing US Supreme Court decision on first sale]
* [http://cyber.law.harvard.edu/media/uploads/81/iTunesWhitePaper0604.pdf PDF of Berkman Center paper on first sale and iTunes]
* [http://www2.warwick.ac.uk/fac/soc/law/elj/eslj/issues/volume2/number2/papadopoulos.pdf Article on first sale doctrine in international intellectual property law]
* [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML EU directive referencing first sale]
* [http://books.google.com/books?id=LvRRvXBIi8MC&pg=PA50&lpg=PA50&dq=first+sale+doctrine+WIPO&source=bl&ots=V9cyaBflUR&sig=Z8H_gM2A8BAZEmLSDRC9g6BMZQc&hl=en&ei=gxt3SojMKIKntgfr4M2WCQ&sa=X&oi=book_result&ct=result&resnum=6#v=onepage&q=&f=false Google Book: WIPO guide on the licensing of copyright and related rights]

==Fixation==

'''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.

''Other resources:''

* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1010937 US law review article "To Fix, or Not to Fix: Copyright's Fixation Requirement and the Rights of Theatrical Collaborators"]
* [http://en.wikipedia.org/wiki/Canadian_copyright_law#Fixation Wikipedia article on Canadian fixation requirements]
* [http://www.copyright.gov/title17/92chap11.html Text of US law on fixation: 17 USCA 1101]
* [http://books.google.com/books?id=hI8kN17SrEsC&pg=PA169&lpg=PA169&dq=copyright+fixation&source=bl&ots=RF48eIxcrK&sig=36ACkVr6WqJbnnw5DDsHCvDoQwc&hl=en&ei=hR53SsipEpyntgfjodGWCQ&sa=X&oi=book_result&ct=result&resnum=9#v=onepage&q=copyright%20fixation&f=false Google Book excerpt: from Principles of Intellectual Property Law by Catherine Colston]
* [http://books.google.com/books?id=MIIOdtjZLCkC&pg=PA144&lpg=PA144&dq=copyright+fixation&source=bl&ots=Jthqw8uLaY&sig=rwyzzz8JlMC3wYAnQhHdmyKLE4Q&hl=en&ei=CCB3SqHJH6KltgeNzOGWCQ&sa=X&oi=book_result&ct=result&resnum=2#v=onepage&q=copyright%20fixation&f=false Google Book excerpt: Research Handbook on Future of EU Copyright by Estelle Derclaye]
* [http://www.gillhams.com/dictionary/368.cfm English law firm’s explanation of fixation]

==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.

''Other resources:''

* [http://www.trade.gov/fta/index.asp Webpage with list of resources on FTAs]
* [http://www.export.gov/fta/ US government website on FTAs]

==GNU-GPL license==

'''The GNU-GPL license is an open source software license.'''

One of the most well known symbols of the free software movement, which is sometimes called FOSS, for “Free open source software”. GNU is an open source operating system, upwardly compatible with Unix.

Richard Stallman started working on GNU at MIT in 1984, and founded the Free Software Foundation in 1985 to help his efforts. When GNU was incorporated with the Linux kernel, the combination became the GNU/Linux system, now found in various different software distributions.

GPL stands for “General Public License”. GPL licenses must contain what are referred to as the ”four freedoms”, which are:

* The freedom to run the program, for any purpose (freedom 0).

* The freedom to study how the program works, and change it to make it do what you wish (freedom 1). Access to the source code is a precondition for this.

* The freedom to redistribute copies so you can help your neighbor (freedom 2).

* The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this.

A program is free software if users have all of these freedoms.

''Other resources:''

* [http://www.gnu.org/copyleft/gpl.html GNU’s webpage on GPL licenses]
* [http://creativecommons.org/licenses/GPL/2.0/ Creative Commons webpage on GPL]
* [http://www.opensource.org/licenses/gpl-license.php Opensource’s page on GPL]
* [http://www.linux.org/info/gnu.html Linux.org’s page on GNU]
* [http://en.wikipedia.org/wiki/GNU_General_Public_License Wikipedia article on GNU/GPL]

==HADOPI==

'''A slang term for recent French legislation [2008-09] designed to regulate Internet usage in accordance with existing French copyright law.'''

“HADOPI” is an acronym referring to the name of the French government agency that would be created by the bill, the High Authority for Copyright Protection and Dissemination of Works on the Internet.

The HADOPI law was the subject of intense lobbying, both for and against it, and became notorious for its so-called “three strikes provision” and for the fact that in its original form, it provided that an Internet user could be sanctioned after having only been ''accused'' of copyright infringement. Although the law eventually passed, the French high court later stuck down this part of the bill as unconstitutional. Soon afterwards, techophile enthusiasts demonstrated that it would be technologically feasible to disguise Internet usage in a way that would call the laws basic effectiveness into question.

''Other resources:''

* [http://en.wikipedia.org/wiki/HADOPI_law Wikipedia article on HADOPI]
* [http://www.eff.org/deeplinks/2009/06/three-strikes-dead-in-france EFF discussion of French “three-strikes”]
* [http://fr.wikipedia.org/wiki/Loi_Cr%C3%A9ation_et_Internet French Wikipedia article on the HADOPI law]
* [http://www.betanews.com/article/French-Assembly-passes-three-strikes-HADOPI-law/1242172150 News article on HADOPI law]
* [http://torrentfreak.com/hackers-undermine-piracy-evidence-with-hadopi-router-090709/ Article on possible flaws in HADOPI’s provisions]
* [http://www.maitre-eolas.fr/post/2009/06/18/1452-hadopi-2-le-gouvernement-envisage-le-recours-a-l-ordonnance-penale French article on HADOPI]
* [http://www.flickr.com/photos/st3f4n/3522802951/ Flickr page discussing HADOPI]
* [http://www.ip-watch.org/weblog/2009/07/21/entangled-in-amendments-hadopi-2-hits-summer-break/ IP-Watch article on HADOPI]
* [http://wendy.seltzer.org/blog/archives/2009/06/12/hadopi-3-strikes-law-gets-its-own-strike.html Wendy Seltzer on HADOPI]
* [http://recordingindustryvspeople.blogspot.com/2009/06/french-3-strikes-law-hadopi-ruled.html US Lawyer specializing in music copyright and P2P filesharing discusses HADOPI]

==(legal) Formalities==

'''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.

''Other resources:''

* [http://www.bitlaw.com/copyright/formalities.html Article on formalities]
* [http://itlaw.wikia.com/wiki/Copyright_formalities Legal wiki’s page on formalities]
* [http://www.laboratorium.net/archive/2009/01/02/an_informal_rant_about_formalities US law professor James Grimmelmann discusses formalities]
* [http://nymusiccopyright.org/copyright/formalities Web page on formalities]
* [http://www.eric.ed.gov/ERICWebPortal/custom/portlets/recordDetails/detailmini.jsp?_nfpb=true&_&ERICExtSearch_SearchValue_0=ED291401&ERICExtSearch_SearchType_0=no&accno=ED291401 Cost benefit analysis of US copyright formalities]
* [http://cyberlaw.stanford.edu/node/5688 Stanford Center For Internet and Society’s discussion of Canadian formalities]

==Idea / Expression Dichotomy==

'''The concept that ideas cannot be copyrighted, but their particular expression can.'''

The idea / expression dichotomy is fundamental in copyright law. For example, the particular text of Stephenie Meyer’s “Twilight” series of vampire novels is protected by copyright, but the idea of a girl falling in love with a vampire cannot be protected.

While this may seem obvious or self-evident, the line between the two is not always so easy to find, and aggressive rights-holders continue to try to push the limits of to what they can claim copyright. For example, in the U.S. case Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., Inc., the holder of the rights to the intellectual property making up the James Bond character successfully sued an automobile company for an advertisement they had aired. MGM claimed that the ad’s content was sufficiently similar to or evocative of, James Bond, that it had infringed, although no actual copying took place.

'In U.S. law, idea / expression is usually held up, along with fair use, as a “safety valve” that prevents the monopolies granted by copyright from interfering with public policy, freedom of speech, and more.

Under certain circumstances, courts have held that there are a limited number of ways in which to express a particular idea (such as the rules for lotteries or sweepstakes) and that therefore, no copyright can be held in those materials. This is known as the “merger” doctrine.

''Other resources:''

* [http://en.wikipedia.org/wiki/Idea-expression_divide Wikipedia article on idea/expression]
* [http://www.edwardsamuels.com/copyright/beyond/articles/ideapt1-20.htm US law review article: "The Idea-Expression dichotomy in copyright law]
* [http://www.techdirt.com/articles/20090629/0317365399.shtml Technology blog article on idea/expression]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=418685 Canadian law review article "A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law"]
* [http://books.google.com/books?id=Vu5n-ARorC0C&pg=PA20&lpg=PA20&dq=idea+expression+dichotomy&source=bll&ots=PaIFoQa1-v&sig=zLHpSQLKGOgqxAR5vdqr78e1e1g&hl=en&ei=7Uh4SsSlBpyltgeWvN2WCQ&sa=X&oi=book_result&ct=result&resnum=11#v=onepage&q=idea%20expression%20di&f=false Google Book excerpt on idea/expression from "Copyright Exceptions: the digital divide" by Robert Burrell and Alison Coleman]
* [http://www2.bc.edu/~yen/FirstAmendPer.html US law review article "A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in A Work's Total Concept and Feel"]
* [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=471&invol=539 Text of US Supreme court case discussing idea/expression - Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539]

==IFLA ==

'''International Federation of Library Associations and Institutions'''

According to the [http://ifla.org IFLA website], “The International Federation of Library Associations and Institutions (IFLA) is the leading international body representing the interests of library and information services and their users. It is the global voice of the library and information profession.”

==IFRRO==

'''The International Federation of Reproduction Rights Organisations'''

“The International Federation of Reproduction Rights Organisations (IFRRO) is an independent organisation established on the basis of the fundamental international copyright principles embodied in the Berne and Universal Copyright Conventions. Its purpose is to facilitate, on an international basis, the collective management of reproduction and other rights relevant to copyrighted works through the co-operation of national Reproduction Rights Organisations (RROs). Collective or centralised rights management is preferable where individual exercise of rights is impractical.

IFRRO through its members supports creators and publishers alike and provides internationally a common platform for them to foster the establishment of appropriate legal frameworks for the protection and use of their works.

IFRRO works to increase on an international basis the lawful use of text and image based copyright works and to eliminate unauthorised copying by promoting efficient Collective Management of rights through RROs to complement creators' and publishers' own activities.”

''Other resources:''

* [http://www.ifrro.org/ IFRRO website]

==Incentives==

'''The aspects of copyright law designed to motivate creators to create.'''

Copyright law grants to the rights-holder, for a limited time, a monopoly over uses of the copyrighted work. Since monopolies are usually considered inefficient, the justification for doing this is usually described as providing the necessary incentives to creators to get them to create. That is, without the incentive of being able to benefit economically by exploiting control of the work, why would an artist create? This is often called the economic theory of creator incentives, or something similar. The assumption is that there is a net gain for society. For example, the Copyright clause of the U.S. Constitution reads “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The incentive driven view of copyright and creation has come under some criticism for failing to take into account the many different motivations artists have for creating their work, some of which are not financial at all. Other critics point out that even if incentive theory is accurate, extremely long copyright terms do not increase the economic or monetary value of copyright, arguing against term extensions.

''Other resources:''

* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=876910 US law review article "The Internet, Creativity and Copyright Incentives"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1134035 US law review article "The Pope's Copyright? Aligning Incentives with Reality by Using Creative Motivation to Shape Copyright Protection"]
* [http://www.harvardlawreview.org/issues/122/april09/balganesh.shtml US law review article "Foreseeability and Copyright Incentives"]
* [http://madisonian.net/2007/08/09/ipsc-at-depaul-loren-on-copyrights-needless-incentives/ US legal academic blog entry discussing paper from #3 above]
* [http://www.paulschwartz.net/pdf/SchwartzFINAL.pdf US law review article "Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property"]
* [http://www.law.cornell.edu/supct/pdf/01-618P.ZD1 US Supreme court Justice Breyer's dissenting opinion in ''Eldred v. Ashcroft'']
* [http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/constitutionality.html Affidavit of Dean of the School of Information Management and Systems at the University of California, Berkeley, in ''Eldred v. Ashcroft'']
* [http://williampatry.blogspot.com/2008/05/forseeability-and-copyright-incentives.html One of many blog entries on incentives from renowned US copyright legal scholar William Patry]

==Intellectual Effort==

'''Literally, an effort of the mind, as opposed to a physical effort. The phrase is often synonymous with “creativity”.'''

In copyright law, this concept is important because not everything qualifies for copyright protection. Most importantly, simply having spent a lot of time and energy on something is not usually enough to qualify for copyright. However, in recent legislation, databases of facts have received protection solely by virtue of the effort that went into them.

Each jurisdiction has a different set of criteria as to what may receive copyright. The U.S. requires that the work be the result of creative input, but has a very low threshold for creativity. The U.S. also requires that the work be fixed in a tangible form. Italian law, for example, states things a little differently, and states that a work must involve an intellectual effort and possess creative character.

''See also:''

* [[Glossary#.E2.80.9CSweat_of_the_brow.E2.80.9D|"Sweat of the Brow"]]

==Infringement==

'''Violation without justification or excuse of one or more of the exclusive rights in a work granted by copyright law.'''

For example, if a copy of a book, song, or computer program is made, or a song or play performed without permission, the copyright in that work has been infringed. What sort of infringement has taken place depends on the level of knowledge and involvement of the infringer.

====Direct====

'''Direct infringement takes place when a person who is not the rightsholder performs or engages in one of the activities that the copyright holder has the exclusive right to perform.'''

Direct infringment is the most common kind of infringement, and takes place whenever a user violates any of the rights granted to a copyright holder.

“A plaintiff must meet two requirements to establish a prima facie case of copyright infringement: (1) ownership of the allegedly infringed material and (2) violation by the alleged infringer of at least one of the exclusive rights granted to copyright holders.” -- LGS Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150, 1156 (9th Cir. 1996)

For example, if a copy has been made without permission, that is direct infringement.

====Indirect /secondary====

'''These are two types of of infringement that take place in conjunction with direct infringement. '''

NOTE: There can be no indirect or secondary infringement without a concurrent act of direct infringement. An act qualifies as a particular type of infringement according to the knowledge, intent and abilities of the infringer.

====Contributory====

'''A contributory infringer has knowledge of the related direct infringement, i.e. that it is taking place; and must make a material contribution to it in some way.'''

Examples of contributory infringement would be a CD factory owner who knows that his machines are being used to make illegal copies of protected works, or someone who provides software tools for cracking encryption regimes.

====Vicarious====

''' A vicarious infringer is one who, while not deliberately encouraging or materially contributing to the direct infringement, has the right and ability to control or prevent infringement, and benefits from it, even if he or she does not realize the infringement is taking place.'''

Vicarious infringment is roughly akin to “you should have known infringement was taking place, and done something about it.

A club owner who hires performers who then play protected works without permission to do so, and without the owner’s knowledge, is vicariously infringing. The owner herself is not infringing, or helping the performer to do so, but she could make sure of the performer’s licensing, and she is indirectly profiting from the infringement, because of the revenues from patrons of the club. Another example would be someone who runs an outdoor market, renting stalls to vendors. If a particular vendor is selling infringing goods, the market owner is vicariously infringing. (For a classic example in US law, see Fonovisa Inc. v. Cherry Auction, Inc., 847 F.Supp. 1492 (E.D. Cal. 1994).

====Inducement====

'''The idea that someone might not only make the means of infringement possible, but might encourage others to infringe, even if the inducer is not profiting, either directly or indirectly.'''

Inducement was perhaps made most famous by the US case ''M.G.M. v Grokster''. In the Grokster case, the court found Grokster liable for indirect infringement, because it had actively induced others to directly infringed, regardless of any substantial non-infringing use of the Grokster technology. This was in contrast to the Sony v Betamax decision in the 1080’s which found video recorders non-infringing because they could be used in non-infringing ways, and because Sony had not encouraged infringing uses.

''Other resources:''

* [http://www.chillingeffects.org/piracy/faq.cgi Chilling Effects webpage on "piracy"]
* [http://www.chillingeffects.org/dmca512/question.cgi?QuestionID=268 chilling Effects FAQ on DMCA Section 512]
* [http://www.quizlaw.com/copyrights/what_is_contributory_infringem_1.php "Law for non-lawyers" website's page on contributory infringement]
* [http://www.quizlaw.com/copyrights/what_is_vicarious_infringement.php "Law for non-lawyers" website's page on vicarious infringement]
* [http://itlaw.wikia.com/wiki/Vicarious_copyright_infringement Technology wiki on contributory infringement]
* [http://cyberlaw.stanford.edu/packets002913.shtml Stanford Center for Internet & Society's page discussing a US case on indirect infringement]
* [http://www.benedict.com/Digital/Internet/Fonovisa/Fonovisa.aspx Copyright website's discussion of Fonovisa v Cherry Auction]
* [http://www.allacademic.com//meta/p_mla_apa_research_citation/1/7/1/7/6/pages171767/p171767-1.php Academic paper: "The Inducement Theory in Post-Grokster: Arista Records v. Flea World; UMG v. Bertelsmann"]
* [http://www.yarbroughlaw.com/Publications/pubs%20patent4%20indirect%20infringement%20of%20copyright.htm US lawyer's discussion of indirect infringement]
* [http://en.wikipedia.org/wiki/Contributory_copyright_infringement Wikipedia article on copyright infringement]
* [http://digital-law-online.info/lpdi1.0/treatise14.html US copyright website's page on infringement]
* [http://www.ipo.org/AM/Template.cfm?Section=Copyright&Template=/CM/ContentDisplay.cfm&ContentID=17825 Chinese law review article (in English): "Analysis & Solution for Indirect Infringing Liability of Developers of P2P File Sharing Software"]
* [http://www.becker-posner-blog.com/archives/2005/07/grokster_file_s.html US law professors' blog entry on infringement and ''Grokster'']
* [http://www.legallanguage.com/legal-articles/clarida008/ Article on Internet-based contributory infringement]
* [http://works.bepress.com/jamie_gregorian/1/ Academic paper: "Grokster, BitTorrent, Copyright Infringement, and Inducement: How Modus Operandi Can Provide a Functional Standard for Future File-Sharing Cases"]
* [http://www.cdt.org/files/pdfs/20061010streamcast.pdf Center for Democracy & Technology�s initial ''Grokster'' analysis]
* [http://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,_Ltd. Wikipedia article on ''MGM v Grokster'' case]
* [http://www.foley.com/publications/pub_detail.aspx?pubid=3398 US law firm article: "The Grokster Inducement Test For Secondary Copyright Infringement Liability"]

==Lex loci delicti==
'''Literally, "the law of the place of the wrongdoing"

The full term is '' lex loci delicti commissi.''

This concept comes up when discussing a tort or crime that takes place in multiple legal jurisdictions. In such a scenario, a court will have to decide which jurisdiction's laws apply. ''Lex loci delicti'' refers to the laws that apply in the place where the crime, copyright infringment for our purposes, was actually committed, rather than where the rightsholder lives, or where the right to the work were first received, etc.

''See also:''

* [[Glossary#Choice_of_Laws|Choice of Laws]]

''Other resources:''

*[http://en.wikipedia.org/wiki/Lex_loci_delicti_commissi Wikipedia article on ''Lex loci delicti'']

==License==

'''A license is a form of contract whereby a rights-holder grants permission to a person or entity to make use of a copyrighted work in some way.'''

Licenses can be quite specific, granting permission for only one particular kind of use, and for a limited time, or they can be comprehensive. They may be open source, or restrictive. They may or may not be transferable to others. Licenses have always been part of copyright law, but have come to greater prominence recently with their extensive use in conjunction with computer software.

====Model License====

A license that does not refer to any particular copyrighted work, or to specific parties, but is instead presented as an example of the license in general.

The model license can then be modified according to circumstances. For example, Creative Commons, which offers six different types of license, makes model versions of each available.

====Blanket License====

See [[Glossary#Blanket_license|Blanket License]].

====Compulsory License====

See [[Glossary#Compulsory_License|Compulsory License]].

====Institutional License====

'''A license granted to an institution, such as a library or school, rather than an individual.'''

An institutional license’s terms are predicated on the idea that the institution will be serving many different users, under a wide variety of circumstances, and that from a transaction costs perspective, it is far more efficient for all concerned to negotiate terms only once. For example, most, if not all, universities have institutional licensing agreements with the various collective management agencies for the performance of musical works. Many libraries, whether public or academic, have institutional subscriptions to commercial or academic databases, under which any patron of the library may access the database without having to negotiate personal access.

====Individual License====

'''An individual license is a license granted to a single person.'''

Individual licenses can be negotiated for any sort of copyrighted work, but are probably most often seen in the software context, where before using purchased software, a user must agree to the licensing terms.

====(non) Exclusive License====

'''An exclusive license is one granted to the holder only.'''

If a license is exclusive, it means that no other similar license will be granted. For example, a rights-holder in the United States might grant an exclusive license to someone in Germany to be the sole distributor of the copyrighted work in Germany, or vice versa. A non-exclusive license is just the opposite. A person with such a license knows that many others may have been granted the exact same rights. For example, when a person purchases software, he knows that he is not the only one who has eben granted permission to use that software.

'''Other Resources'''

* [http://www.bitlaw.com/copyright/license.html Legal information website's page on licenses]
* [http://creativecommons.org/about/licenses Creative Commons' licenses page]
* [http://en.wikipedia.org/wiki/Category:Copyright_licenses Wikipedia meta-page on copyright licenses]
* [http://www.copyright.gov/circs/circ75.pdf US Government's publication on licenses]
* [http://www.ivanhoffman.com/transfer3.html US lawyer discusses the right to transfer copyright licenses]
* [http://www.techdirt.com/articles/20090628/1626125387.shtml Technology blog's discussion of licensing controversy]
* [http://en.wikipedia.org/wiki/Compulsory_license Wikipedia page on compulsory licenses]
* [http://www.copyright.gov/circs/circ73.pdf US Government's circular on compulsory licensing for phonorecords]
* [http://www.cptech.org/blogs/cl4copyright/ Blog devoted to compulsory licenses]
* [http://www.artistshousemusic.org/videos/explaining+the+compulsory+license+clause Video with US lawyer explaining compulsory licenses]
* [http://muse.jhu.edu/about/subscriptions/license_review.html An example of institutional license agreement]
* [http://www.lib.uconn.edu/copyright/modelagreements.html University of Connecticut Libraries' webpage on licenses]
* [http://www.eff.org/wp/better-way-forward-voluntary-collective-licensing-music-file-sharing EFF white paper on voluntary collective licensing]
* [http://w2.eff.org/share/legal.php EFF page on P2P filesharing and licensing]
* [http://bandfoundry.draftlight.net/resources/copyright/license_types.php Music blog's discussions of licensing in music]
* [http://thepcweb.com/?p=358 Computer sciences blog page on software licenses]

==Material breach (of a contract)==

'''A violation of a contract serious enough that the person harmed may compel performance and collect damages, and/or terminate the contract.'''

A contract is fundamentally a list of terms to which the parties have agreed – things each party has agreed to do or not do. However, no contract, no matter how complex or carefully written, can foresee every possible eventuality. Therefore, it will sometimes happen that a party to a contract will violate one or more of the contract’s terms. Sometimes the breach will be deliberate, sometimes accidental, sometimes driven by circumstance. The question that arises, in the case of a breach, is what will be done about the violation.

Typically, minor violations of a contract mean only that the person harmed by the violation can collect only actual damages. If the breach is sufficiently immaterial these damages may well be zero.

However, substantial violations, which are also known as material breaches, are a different story. They are material breaches because the breached clauses fundamentally matter to the contract. Such breaches typically mean that the injured party can legally compel performance of the contract in addition to collecting damages. Of course, a particular contract may contain specific provisions for what will happen in the case of a material breach.

''Other resources:''

* [http://en.wikipedia.org/wiki/Breach_of_contract Wikipedia article on breach of contract]
* [http://www.constructionbusinessowner.com/topics/law/understand-material-breach-of-contract.html Construction industry website's page on material breach]
* [http://www.chicagobusinesslitigationlawyerblog.com/2009/05/material_breach_of_contract_in.html Chicago law firm's discussion of Illinois court's material breach ruling]
* [http://research.lawyers.com/glossary/material-breach.html Lawyer.com's definition of material breach]

==Monopoly==

'''A monopoly is exclusive control over a particular resource.'''

A copyright in a particular work can usefully be conceived of as a monopoly over that work and its uses, albeit for a limited time.

Economic theory typically sees most monopolies as inefficient uses of resources. These inefficiencies are harm to the public good. This harm is justified in copyright law by claiming that the incentives a monopoly provides to would-be creators balance it out. However, this view of things is being challenged more and more in recent years by critics who feel that copyright terms are too long, or that creators have motivations other than monetary reward.

''See also:''

* [[Glossary#Incentives|Incentives]]
* [[Glossary#Commons|Commons]]

''Other resources:''

* [http://www.againstmonopoly.org/index.php?perm=593056000000001200 "Against Monopolies" page on copyright's 'Catch-22']
* [http://www.open-spaces.com/article-v2n1-loren.php Law review article "The Purpose of Copyright"]
* [http://www.newswise.com/articles/view/549822/ Article discussing economists' criticism of copyright monopolies]
* [http://www.hackvan.com/pub/stig/etext/fair-use/mocking-the-monopoly-of-copyright.txt Article: "Mocking the Monopoly of Copyright"]
* [http://books.google.com/books?id=209GwCq-ATgC&pg=PA118&lpg=PA118&dq=monopoly+in+copyright+law&source=bl&ots=JYihE-5gK7&sig=Ws93FguDmc79hJ1AMk_i-IUySfM&hl=en&ei=kmd4SsiCI4extgfGrdmWCQ&sa=X&oi=book_result&ct=result&resnum=6#v=onepage&q=&f=false Google Books excerpt: The Economics of copyright – Wendy Gordon &Richard Watt]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1123575 Academic article: "Natural Monopolies in Antitrust, Patent, and Copyright Law: The Essential Facilities, Reverse Doctrine of Equivalents, and Originality Doctrines as Triggers for a Compulsory Licensing Remedy"]

==Moral Rights==

'''Broadly speaking, the set of rights in a work that give control over the existence or fate of a work, rather than over its economic exploitation.'''

Moral rights (a translation of the French concept “droit moral”) in a creative work are the corollary to the economic rights. They represent the rights in a work that are inherent in its status as a creative work and in its relationship with its creator. While they are statutorily reinforced, they typically are thought of as existing on their own. That is, they are much closer to being “natural” rights. Perhaps because of the nature of the rights, they are more often associated with visual works, such as painting or sculpture, than with “informational” works, such as texts.

The Berne Convention explicitly recognizes moral rights, but U.S. law does not officially recognize moral rights, which is an ongoing source of tension between U.S. law and that of other Berne Convention members. The U.S, maintains that its laws have sufficient provisions in place, such as the Visual Artists Rights Act, to accommodate moral rights.

Article 6bis (1) of the Berne convention reads:

“ (1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

The enumeration of moral rights varies from country to country, but they are most often listed as:

* The right of paternity -- to claim authorship (or disclaim it, in the event of unauthorized change).

* The right of integrity -- to approve of or object to any modification, distortion or change to the work.

* The right of withdrawal -- to remove a work from the public sphere at will.

* The right of release -- the right to control when a work is seen by the public.

''Other resources:''

* [http://cyber.law.harvard.edu/property/library/moralprimer.html Berkman Center webpage "Moral Rights Basics"]
* [http://en.wikipedia.org/wiki/Moral_rights_(copyright_law) Wikpedia page on Moral Rights]
* [http://www.rbs2.com/moral.htm Essay; "Moral Rights of Authors in the USA"]
* [http://www.copyright.gov/reports/exsum.html US Government document "Waiver of Moral Rights in Visual Artworks"]
* [http://www.vlaa.org/assets/documents/VARA.pdf PDF "Artists Guide to the Visual Artists Rights Act: understanding your (limited) rights"]
* [http://www.californialawreview.org/articles/against-moral-rights US law review article: "Against Moral Rights"]
* [http://www.ariadne.ac.uk/issue4/copyright/ Essay: Moral Rights and the electronic library"]
* [http://copyright.columbia.edu/node/50 MP3 file "The Five Exclusive Rights and Moral Rights"]
* [http://www.allacademic.com/meta/p_mla_apa_research_citation/1/8/5/3/2/p185328_index.html Academic paper: "Authorship and the Debate on Moral Rights in the Digital Environment"]
* [http://www.austlii.edu.au/au/journals/ILB/2001/11.html Australian law review article: "Berne, Baby, Berne: The Berne Convention, Moral Rights and Indigenous Peoples’ Cultural Rights"]
* [http://www.infotoday.com/IT/jan02/ardito.htm Legal column: "Moral Rights for Authors and Artists "]
* [http://www.megalaw.com/top/copyright/copyrightmoral.php Large list of links to resources on Moral Rights]

==Mortenson Center==

'''The Mortenson Center for International Library Programs'''

The Center was founded in 1991 at the University of Illinois at Urbana-Champagne.

According to [http://www.library.illinois.edu/mortenson/ its website], “The Mortenson Center and the Mortenson Distinguished Professorship seek to strengthen international ties among libraries and librarians, regardless of geographic location or access to technology.”

Individuals at the Mortenson Center participated in the initial testing of this curriculum.

==Neighboring Rights==

'''The rights of people who have participated in the creation of a copyrighted work, but who did not “write” it, and for a variety of reasons do not normally qualify for traditional forms of copyright.'''

Neighboring rights are copyrights that exist adjacent to more traditional author’s copyrights, and are granted to a few specific categories of person. The term most often refers to. Examples might include the sound engineers at a recording studio, the performers of a musical composition, or a broadcast organization.

Neighboring rights as such do not exist in all copyright law systems. Some jurisdictions subsume them within “copyright” in general without treating them as any different.

As just one example, the Rome Convention explicitly addresses the rights of performers and producers of sound recordings.

''See also:''

*[[Glossary#Rome_Convention|Rome Convention]]

''Other resources:''

* [http://www.wipo.int/export/sites/www/tk/en/laws/pdf/tanzania_copyright_1999.pdf PDF of 1999 Tanzanian Copyright and Neighboring Rights Act]
* [http://www.esa.int/esaMI/Intellectual_Property_Rights/SEMQPQL26WD_0.html European Space agency's page on copyright and neighboring rights]
* [http://en.wikipedia.org/wiki/Related_rights Wikipedia article on "related rights"]
* [http://www.sunsonline.org/trade/areas/intellec/12230096.htm 1996 article "WIPO: Copyright, Neighboring Rights in the Digital Age"]
* [http://archive.ifla.org/III/clm/p1/ilp.htm IFL document "Limitations and Exceptions to Copyright and Neighbouring Rights in the Digital Environment: An International Library Perspective]
* [http://www.ccaaa.org/copyright.shtml CCAAA statement on copyright and neighboring rights at the 13th session of the Standing Committee on Copyright and Related Rights, WIPO, Geneva, 21st-23rd November 2005]
* [http://portal.unesco.org/culture/en/files/30671/11443368003faq_en.pdf/faq_en.pdf UNESCO: "Basic Notions About Copyright And Neighbouring Rights"]

==Open Access==

'''Open access is a term describing an information resource that is open to all.'''

It also refers to a movement within the academic community dedicated to making scholarly research more accessible, rather than hidden behind a price or permission barriers.

“Open access” journals are not necessarily free, since they may charge a fee for maintenance costs, or to compensate authors, but typically an open access resource is free to all to read and use. Journals that ask for some payment are sometimes called “hybrid” access journals.

Harvard University recently adopted a policy where all of its faculty are permitted and encouraged to make their research available as open access. The U.S. National Institutes of Health has an open access policy requiring all research conducted with public funding to make its results open access, at least after a short interval of exclusivity.

''Other resources:''
* [http://www.doaj.org/ A directory of open access journals]
* [http://www.biomedcentral.com BioMed Central, publisher of 198 peer-reviewed open access journals]
* [http://www.earlham.edu/~peters/fos/overview.htm Professor Peter Suber's Open Access overview]
* [http://www.plos.org/index.php Website of the Public Library of Science]
* [http://www.soros.org/openaccess/read.shtml The Budapest Open Access Initiative]
* [http://www.soros.org/ Webpage of Open Society Institute]
* [http://www.arl.org/sparc/openaccess/ Scholarly Publishing and Academic Resources Coalition's open access page]
* [http://en.wikipedia.org/wiki/Open_access Wikipedia Article on Open Access]
* [http://www.oapen.org/ Website for Open Access Publishing in European Networks]
* [http://chronicle.com/article/Harvard-Faculty-Adopts/40447 Article about Harvard university adopting open access policy]
* [http://blogs.law.harvard.edu/mediaberkman/2009/03/03/radio-berkman-open-accessories/ MP3 of RadioBerkman interview with Peter Suber]
* [http://freegovinfo.info/node/2531 Discussion of proposed US law limiting open access to research]
* [http://publicaccess.nih.gov/ US National Institutes of Health Open Access homepage]
* [http://cyber.law.harvard.edu/interactive/events/2008/03/suber video of Professor Peter Suber's presentation "What Can Universities Do to Promote Open Access?"]

==“Opt-in”==

'''When a person must choose to do something, rather than it happening automatically.'''

Opt-in describes the default state any situation in which a user or participant has a choice of whether to do something or not, and where the default state is “not”. That is, a person must explicitly and consciously choose to take part. If no action is taken, the person will'' '''not''' ''participate, agree to terms, etc.

==“Opt-out”==

'''When a person must choose to not do something, otherwise it will happen automatically.'''

Opt-in describes the default state in any situation in which a user or participant has a choice of whether to do something or not, and the default state prior to any user involvement or active decision is “doing it”.

That is, unless the user consciously and deliberately decides to not agree, or participate, and chooses "no", the assumption going forward is that he or she agrees to the conditions proposed.

==Original expression==

'''Original expression refers to a creator’s original, copyrightable, creative work.'''

This is in contrast to any later derivative works, other later work that in some way incorporates the original work, or work that isn’t original at all. Expression that is not original cannot qualify for copyright.

''Other resources:''

* [http://www.buildingipvalue.com/08_AP/226-228SudathPerera.pdf Sri Lankan academic article: "A right to original expression: the role of copyright law in modern industry"]

==Orphan works==

'''Orphan works are creative works that are still under copyright protection, but for which it is either impossible or prohibitively difficult to identify the copyright holder.'''

This is most often a problem with photographs on the Internet, but arises with other types of works as well. Since the works are under copyright, permission is need to use them, but since the rights-holder cannot be found, no permission can be obtained. This puts these works into a sort of limbo. People want to make use of them, but usually won’t for fear of liability, and the works cannot pass into the public domain until the term of their copyright expires.

The settlement with the Author’s Guild in the Google Book Search lawsuit contains controversial provisions for orphan works, although it does not refer to them by that term. These terms are the subject of much debate and opposition worldwide.

Orphan works legislation has also been proposed at several different times in the U.S. Congress.

''Other resources:''

* [http://www.copyright.gov/orphan/ US Register of Copyright's article: "The Importance of Orphan Works Legislation"]
* [http://www.copyright.gov/docs/regstat031308.html US Register of Copyright's statement to US Congress on orphan works]
* [http://www.wired.com/threatlevel/2008/09/orphan-works-co/ technology magazine article "‘Orphan Works’ Copyright Law Dies Quiet Death"]
* [http://blog.librarylaw.com/librarylaw/2009/04/google-book-settlement-orphan-works-and-foreign-works.html LibraryLaw blog post: "Google Book Settlement, orphan works, and foreign works"]
* [http://news.cnet.com/8301-1023_3-10300887-93.html News article "Google pushes for new law on orphan books"]
* [http://www.researchinformation.info/news/news_story.php?news_id=487 Article "Copyright law prevents access to millions of 'orphan works'"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263361 US law review article: "Recent Developments in US Copyright Law: Part I - 'Orphan' Works"]
* [http://www.law.duke.edu/cspd/pdf/cspdproposal.pdf "Orphan Works Analysis and Proposal" from the Center for the Study of the Public Domain. Duke Law School]
* [http://www.nytimes.com/2008/05/20/opinion/20lessig.html Lawrence Lessig op-ed piece on orphan works]
* [http://www.mileproject.eu/orphanworks Metadata Image Library Exploitation website's page on orphan works (EU)]
* [http://www.cepic.org/issues/industry_issues_downloads/2008/10/situation_orphan_works_eu CEPIC report: "The Situation of Orphan Works In Europe"]
* [http://www.cenl.org/docs/Report_Digital_Preservation_Orphan_Works_Out-of-Print_Works_Selected_Implementation_Issues_June07.pdf Digital Libraries Expert Group's "Report on Digital Preservation, Orphan Works, and Out-of-Print Works. Selected Implementation Issues]
* [http://en.wikipedia.org/wiki/Orphan_works Wikipedia article on Orphan works]

=="Notice and Takedown”==

'''“Notice and takedown” refers to the particular sort of cease and desist letter associated with the U.S. Digital Millennium Copyright Act.'''

An Internet entity ( such as YouTube), upon receiving notice that it is hosting or otherwise making available a copyrighted work, can avoid liability for infringement by immediately taking down the copy of the work in question.

These notices are often criticized because their process strongly preferences rightsholders, who can effectively shut down any and all uses of their work, whether fair, permissible or not, since most posters will not bother to challenge a takedown notice with a counternotice.

====Counternotice ====

'''The response to a DMCA takedown notice.'''

A counternotice is the action taken by the person who originally posted the work that was taken down under a DMCA Section 512 “notice and takedown”. If the poster believes that the work was used legitimately, they can inform the host, who then are required to put it back up, and notify the alleged rightsholder that the copyright has been challenged.

The process for challenging takedowns with a counterntice is much more time-consuming and lengthy than that for a takedown itself, leading some to criticize the system as unfairly favoring alleged rights-holders, creating a legal avenue for private censorship of speech, and confronting Internet hosting sites with skewed incentives.

====“Putback”====

'''When a website that took content down in response to a DMCA takedown notice puts it back up after receiving a counternotice.'''

“Putback” refers to when an Internet content host, such as YouTube, having received a “notice and takedown” and then a “counternotice”, puts the possibly infringing content back online, pending a review of its copyright status.

''Other Resources''
* [http://www.chillingeffects.org/dmca512/faq.cgi#QID130 Chilling Effects FAQ on notice and takedown]
* [http://www.ivanhoffman.com/dmca.html US lawyer's article on DMCA notice and takedown]
* [http://digital-law-online.info/lpdi1.0/treatise34.html Digital Law Online: "Notice-and-Takedown Procedures"]
* [http://works.bepress.com/graeme_dinwoodie/41/ Academic paper: "A Reverse Notice and Takedown Regime To Enable Fair Uses of Technically Protected Copyrighted Works (with J. Reichman & P. Samuelson)"]
* [http://creativecommons.org/dmca/ Creative Commons page on DMCA notice and takedown]
* [http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act Wikipedia page on Online Copyright Infringement Liability Limitation Act]
* [http://www.copyright.gov/legislation/dmca.pdf US Government report on DMCA]
* [http://www4.law.cornell.edu/uscode/17/512.html Text of DMCA Section 512]
* [http://www.chillingeffects.org/dmca512/faq.cgi#QID132 Chilling Effects FAQ on counternotices]
* [http://www.chillingeffects.org/dmca/counter512.pdf PDF of a counternotice]
* [http://www.cs.cmu.edu/~dst/Terrorism/form-letter.html A "do it yourself" counternotice letter]
* [http://www.chillingeffects.org/responses/notice.cgi?NoticeID=360 Chilling Effects example of a counternotice]
* [http://www.google.com/support/youtube/bin/answer.py?hl=en&answer=59826 YouTube's help page on counternotices]
* [http://www.chillingeffects.org/dmca512/faq.cgi#QID132 Chilling Effects FAQ about putback procedures]
* [http://www.thelaw.com/guide/writing-a-dmca-counter-reply-put-back-notice/ Legal advice website's "Writing a DMCA Counter-Reply Put Back Notice"]
* [http://www.dyniam.com/marketing-blog/what-to-do-when-google-bans-your-site-because-of-a-bogus-dmca-take-down-notice/ Marketing website's page "What To Do When Google Bans Your Site Because Of A Bogus DMCA Take-Down Notice"]
* [http://www.bowdoin.edu/copyright/pdf/notice_692003.pdf PDf of Bowdoin College's DMCA procedures]
* [http://mylaw.usc.edu/documents/512Rep/ Academic paper: "Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act"]

==Perform==
'''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.

''Other resources:''

* [http://arstechnica.com/tech-policy/news/2009/07/telcos-and-reform-groups-slam-ascap-on-ringtone-grab.ars Technology blog article on ringtone controversy]
* [http://arstechnica.com/media/news/2009/06/ringing-up-cash-ascap-suing-att-for-ringtone-performance.ars Another technology blog article on ringtone controversy]
* [http://www.eff.org/press/archives/2009/07/02 EFF article on ringtone controversy]
* [http://www.ascap.com/press/2009/0622_Fighting_For_Your_Fair_Share.aspx ASCAP's page on its mission]
* [http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202432025253 Legal website's article "ASCAP Sues Over Ringtone 'Performance'"]
* [http://www.eff.org/deeplinks/2009/06/ascap-wants-be-paid- EFF legal analysis on ringtone controversy]
* [http://news.cnet.com/8301-1023_3-10161104-93.html News article "Book publishers object to Kindle's text-to-voice feature"]
* [http://news.cnet.com/amazon-retreats-on-kindles-text-to-speech-issue/ News article on Kindle Text-to-speech controversy]
* [http://www.crunchgear.com/2009/05/15/random-house-shuts-down-kindle-text-to-speech-for-their-titles/ Technology blog article "Random House shuts down Kindle text-to-speech for their titles"]
* [http://www.techflash.com/Disability_groups_demand_full_return_of_Kindles_text-to-speech_41583262.html Technology news article "Disability groups demand full return of Kindle's text-to-speech"]
* [http://online.wsj.com/article/SB123419309890963869.html Wall Street Journal article "New Kindle Audio Feature Causes a Stir"]

==Piracy==

'''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.

''Other resources''

* [http://www.chillingeffects.org/piracy/ Chilling Effects page on piracy]
* [http://www.chillingeffects.org/piracy/faq.cgi Chilling Effects FAQ on piracy]
* [http://www.copyright.gov/docs/regstat052505.html US Register of Copyright's statement to Congress on piracy]
* [http://www.publishersweekly.com/article/CA6672109.html?rssid=192 Article: "Copyright Industries Warn Against Piracy Threat"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=443160 Academic paper: "Four Common Misconceptions About Copyright Piracy"]
* [http://books.google.com/books?id=0iau-RT8eEsC&dq=copyright+piracy&printsec=frontcover&source=in&hl=en&ei=sZ94SuqnG8OMtgeMiNGWCQ&sa=X&oi=book_result&ct=result&resnum=18#v=onepage&q=copyright%20piracy&f=false Google Book: The Politics of Piracy: Intellectual property in contemporary China by Andrew Mertha]
* [http://www.copynot.com/ Anti-piracy website]
* [http://www.gnu.org/philosophy/words-to-avoid.html#Piracy GNU "Words to avoid" entry on piracy]
* [http://www.macobserver.com/tmo/article/iphone_app_piracy/ News article about "iPhone App Piracy"]
* [http://tim.oreilly.com/pub/a/p2p/2002/12/11/piracy.html Article: "Piracy is Progressive Taxation, and Other Thoughts on the Evolution of Online Distribution"]

==Plagiarism==

'''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.

''Other resources:''

* [http://www.pddoc.com/copyright/plagiarism.htm Legal information website's article: "Copyright and Plagiarism: What's the Difference?"]
* [http://www.transcendentalists.com/plagiarism_and_copyright.htm List of resources on plagiarism and copyright]
* [http://www.plagiarismchecker.com/plagiarism-vs-copyright.php PLagiarismChecker.com article: "Plagiarism and Copyright Infringement: Is Copying Illegal?"]
* [http://lists.ibiblio.org/pipermail/cc-community/2008-May/003685.html Discussion of plagiarism vs copyright]
* [http://www.plagiarismtoday.com/2005/10/06/copyright-infringement-plagiarism-and-fair-use/ Plagiarism Today article "Copyright Infringement, Plagiarism and Fair Use"]
* [http://www.historians.org/governance/pd/curriculum/plagiarism_defining.htm "Plagiarism: Curricular Materials for History Instructors"]
* [http://www.eucopyright.org/plagiarism/ EU Copyright.org article "Plagiarism Judo - a clever remedy?"]

==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.

''Other resources:''

* [http://www.librarycopyright.net/digitalslider/ "Is it protected by copyright?" -interactive tool for US law]
* [http://www.thepublicdomain.org/download/ Website for the book The Public Domain – Enclosing the Commons of the Mind by James Boyle]
* [http://www.copyright.gov/pr/pdomain.html US Copyright office statement on public domain works]
* [http://www.law.duke.edu/cspd/ Website for The Center for the Study of the Public Domain]
* [http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/ Stanford University Library system's page on Copyright and the Public Domain]
* [http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-a.html Stanford University Libraries "Welcome to the Public Domain"]
* [http://www.copyright.cornell.edu/resources/publicdomain.cfm Copyright Term and the Public Domain in the United States]
* [http://www.unc.edu/~unclng/public-d.htm A chart for determining when a work is in the public domain]
* [http://creativecommons.org/licenses/publicdomain/ Creative Commons webpage "Copyright-Only Dedication* (based on United States law) or Public Domain Certification"]
* [http://googleblog.blogspot.com/2005/11/preserving-public-domain-books.html Google Blog "Preserving public domain books"]
* [http://creativecommons.org/choose/publicdomain-2 Creative Commons page about identifying works already in the public domain]
* [http://librivox.org/public-domain/ Librivox web page "Copyright, Public Domain & LibriVox"]
* [http://www.eff.org/deeplinks/2009/07/eff-defends-wikipedi EFF legal analysis "EFF Defends Wikipedian's Right to the Public Domain"]
* [http://www.public-domain.org/ Public-Domain.org]
* [http://www.cpdl.org/wiki/index.php/Main_Page ChoralWiki, home of the Choral Public Domain Library]
* [http://en.wikipedia.org/wiki/Public_domain Wikipedia article on public domain]

==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.

''Other resources:''

* [http://www.bitlaw.com/copyright/scope.html#display BitLaw entry on "public display"]
* [http://www.utexas.edu/law/faculty/treese/Illinois.pdf Law review article: "The public display right: the Copyright Act's neglected solution to the controversy over RAM 'copes'"]
* [http://www.gseis.ucla.edu/iclp/oct96.html Article: "New Directions in Cyberspace Law"]
* [http://www.quizlaw.com/copyrights/what_is_the_right_of_public_di.php QuizLaw: "What is the right of public display?"]
* [http://www.arl.org/bm~doc/crs_rl33810.pdf PDF of US Congressional Research Service report "Internet Search Engines: Copyright’s “Fair Use” in Reproduction and Public Display Rights"]
* [http://itlaw.wikia.com/wiki/Public_display IT Law wiki entry on "public display"]

==Registration==

'''Formally obtaining copyright protections for a creative work by notifying the copyright office that it exists.'''

In U.S. copyright law, although a creative work receives copyright at the moment it is fixed in a tangible form, a copyright holder cannot file suit against an alleged infringer without officially registering the work with the copyright office.

The Berne Convention does not require registration, or any other official formalities.

''See also:''

* [[Glossary#.28legal.29_Formalities|Formalities]]

''Other resources:''

* [http://www.copyright.gov/register/ US Government's copyright website page on registration]
* [http://www.copyright.gov/eco/ US Government's copyright website online registration system]
* [http://www.copyright.gov/forms/ US Government's copyright website forms for off-line registration]
* [http://en.wikipedia.org/wiki/Copyright_registration Wikipedia article on copyright registration]
* [http://www.allbusiness.com/legal/intellectual-property/3931441-1.html Article on registration tool for user-generated content. (blogging, podcasting, etc.)]

==Relief==

'''What a court grants a rightsholder who has won an infringement lawsuit.'''

When a copyright lawsuit is resolved in favor of the rightsholder, a court will then grant them relief -- relief from the harm which they have suffered as a result of the infringement

====Injunctive====

'''Injunctive relief occurs when a court issues an injunction or a restraining order against an infringer.'''

The injunction might order that infringing content be removed from display, or that extant illegal copies be collected and destroyed, or whatever measures the court finds appropriate.

====Statutory====

'''Statutory relief is relief according whatever provisions for relief exist explicitly in statute.'''

These could include damage awards, criminal punishment or more.

==Religious Legal System==

'''A religious legal system is one where the law is based on the tenets of a particular religion.'''

Some religious legal systems exist on their own, while some exist in conjunction with another legal system.
Sharia, the system of religiously inspired Islamic law, is an example of a religious legal system, as are Hindu law and Halakha or Jewish law.

''See also:''

* [[Glossary#Common_Law|Common Law]]
* [[Glossary#Civil_Law|Civil Law]]

''Other resources:''

* [http://nyugloballaw.com/globalex/Religious_Legal_Systems.htm Academic paper "Religious Legal Systems: A Brief Guide to Research and Its Role in Comparative Law"]
* [http://en.wikipedia.org/wiki/Religious_law Wikipedia article on Religious law]
* [http://books.google.com/books?id=YsUMTA4MebwC&pg=PA49&lpg=PA49&dq=religious+legal+system&source=bl&ots=hELODC8c5N&sig=TPV22i8YViZXi1V8sGzxFGKxrg4&hl=en&ei=efB4SsK3BtWPtgeuptGWCQ&sa=X&oi=book_result&ct=result&resnum=4#v=onepage&q=religious%20legal%20system&f=false Google book: Religion,law and tradition By Andrew Huxley]

==Rights==

'''The rights a creator, copyright holder, the public or member of the public has as a result of copyright.'''

Copyright grants its holder various exclusive rights as part of its limited time monopoly. These rights can be usefully divided into economic rights and moral rights. In addition, as part of the copyright “bargain” the public gains certain rights in a copyrighted work as well. A list of these rights follows.

====Right of Integrity ====

The right to prevent the destruction or defacement of a creative work, or to object to any changes made to a creative work

Most often seen in the context of a painting or sculpture. For example, the rights to a piece of art on display.

====Right of Attribution ====

The right to be known as the creator of a particular creative work, to be given appropriate credit for one’s creations, and not to be blamed for things one did not create.

====Right of Disclosure ====

The right to determine when and if a work shall be made public.

====Right of Reproduction====

The right to make copies of a work.

====Right of Adaptation ====

The right to make derivative works.

====Right of Distribution ====

The right to sell, export or import a work or copies of a work.

====Right of Public Performance and Display====

The right to perform or display a work in public.

====Right of Withdrawal====

The right to withdraw a work from the public sphere.

Most commonly seen with artworks of which only a single copy exists but also sometimes seen as a right to purchase extant copies of a creative work at a reduced rate. For example, a book a writer no longer wants on the market.

====Right of Access====

The right of the public to have access to a published copyrighted work.

This particular right is actually not a right of the copyright holder, but rather of the public. In return for granting the creator the various copyrights, arguably at the expense of the public, the public gains access to the work.

''Other resources:''

* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=270861 Law review article: "Copyright in the EU and U.S.: What 'Access-Right'?]
* [http://www.reuters.com/article/pressRelease/idUS85594+01-May-2009+PRN20090501 Reuters article: "Right of Access in Germany Affects Only Serious Breaches of Copyright"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1199122 Working paper: "Access-Right: An Inquiry into the Problem of Digital Copyright Law "]
* [http://www.ip-watch.org/weblog/2009/04/24/eu-stakeholders-debate-copyright-access-and-rewarding-artists-in-digital-age/ IP Watch article: "EU Stakeholders Debate Copyright, Access And Artists In Digital Age "]
* [http://www.springerlink.com/content/facjg59bahexvj3g/ Book chapter: "Copyright Dilemma: Access Right as a Postmodern Symbol of Copyright Deconstruction?"]
* [http://informationr.net/ir/10-3/paper230.html Academic paper: "Intellectual property rights vs. public access rights: ethical aspects of the DeCSS decryption program"]
* [http://www.allacademic.com/meta/p_mla_apa_research_citation/2/5/5/2/5/p255259_index.html Academic paper: "Copyright and Access to Knowledge in a Human Rights Framework"]
* [http://cyberlaw.stanford.edu/node/5446 Stanford Center for Internet & Society article: "Access-Right and Copyright Presentation"]
* [http://books.google.com/books?id=pTIS8HWvNOgC&pg=PA69&lpg=PA69&dq=copyright+right+of+access&source=bl&ots=p7NjKS9Mh4&sig=_dt0GWcNN8yG8PkzcxWI-ovVSus&hl=en&ei=mfJ4Ss2aI8awtgfkttWWCQ&sa=X&oi=book_result&ct=result&resnum=9#v=onepage&q=&f=false Google Book: The nature of copyright by Lyman Ray Patterson & Stanley W. Lindberg]

==Rome Convention==

'''The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations'''

The Rome Convention is an international copyright agreement specifically addressing the rights of three groups. These groups are: performers, the producers of sound recordings, and the broadcasters of broadcasts, all of whom receive protection for their efforts, especially against acts to which they have not consented, like being recorded. First done in 1961, the convention attempts to offer specific protection for creative work that might otherwise not qualify for copyright, usually because of its transitory nature.

''See also:''

* [[Glossary#Neighboring_Rights|Neighboring Rights]]

''Other resources:''
* [http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html WIPO's text of convention]
* [http://www.wipo.int/treaties/en/ip/rome/ WIPO's Rome convention page]
* [http://www.wipo.int/treaties/en/ip/rome/summary_rome.html WIPO Summary of Rome Convention]
* [http://www.statemaster.com/encyclopedia/Rome-Convention Web encyclopedia entry on Rome convention]
* [http://www.unesco.org/search/search_en.html?cx=000136296116563084670:h14j45a1zaw&cof=FORID%3A9&ie=UTF-8&q=rome%20convention#1172 UNESCO resources on Rome Convention]
* [http://www.kipo.ke.wipo.net/clea/en/details.jsp?id=2031 WIPO page re: Rome convention for Guatemala]
* [http://ompi.ch/clea/en/details.jsp?id=2862 WIPO page regarding convention for Lithuania]
* [http://unesdoc.unesco.org/images/0013/001397/139776E.pdf PDF of 2005 Intergovernmental committee meeting on Rome Convention]
* [http://www.thefreelibrary.com/Rome+Convention+on+the+law+applicable+to+contractual+obligations...-a0149936237 News article about Rome Convention's force in Latvia]
* [http://en.wikipedia.org/wiki/Rome_Convention_for_the_Protection_of_Performers,_Producers_of_Phonograms_and_Broadcasting_Organisations Wikipedia article on Rome Convention]

==“Safe Harbors”==

'''A clearly defined set of circumstances or actions with respect to a particular law that shield the actor from liability.'''

A law with safe harbors says “These things will make you liable, but if you do “this”, then you are guaranteed to be safe". Safe harbors play an important role in areas of the law that are primarily governed by guidelines (which ultimately need to be interpreted by a court) , rather than rules. Since many people may lack the resources or legal sophistication to know or find out if their behavior is legal, a safe harbor provides certainty.

In the context of copyright law, although it is also used as a generic term for the limits of “safe” activity”, safe harbors are most often encountered with respect to Section 512 of the United States’ Digital Millennium Copyright Act, “Limitations on liability relating to material online”, which describes various ways in which Internet content providers can ensure that they will avoid liability for the behavior of their users and patrons. The most important of these is the “notice and takedown” proceeding.

Note: ''“Safe harbor” may also refer to a U.S. – EU agreement regarding the safety and privacy of personal data and databases.''

''See also:''

* [[Glossary#DMCA|DMCA]]
* [[Glossary#.22Notice_and_Takedown.E2.80.9D|Notice and Takedown]]
* [[Glossary#.E2.80.9CCease-and-desist.E2.80.9D_letter|Cease and Desist]]

''Other resources:''

* [http://images.chillingeffects.org/512.html A Chilling Effects page on the DMCA's Section 512]
* [http://www.chillingeffects.org/dmca512/ Another Chilling Effects page on the DMCA and Section 512]
* [http://www.chillingeffects.org/dmca512/faq.cgi#QID125 Chilling Effects FAQ on DMCA Section 512]
* [http://blogs.zdnet.com/micro-markets/?p=526 News article "Google YouTube copyright 'safe harbor' marriage"]
* [http://arstechnica.com/tech-policy/news/2009/01/judge-transcoding-doesnt-block-veoh-safe-harbor-defense.ars Technology website article: "Judge: transcoding doesn't block Veoh "safe harbor" defense"]
* [http://copywrite.org/2007/03/28/digital-millennium-copyright-act-section-512-safe-harbor-basics/ Copywrtie.org article "Digital Millennium Copyright Act section 512 safe harbor basics"]
* [http://arstechnica.com/tech-policy/news/2008/10/adecade-of-the-dmca-keep-the-safe-harbor-ditch-the-rest.ars Technology website article: "A decade of the DMCA: keep the Safe Harbor, ditch the rest"]
* [http://cyberlaw.stanford.edu/packet/200902/dmca-safe-harbor-service-providers-also-protects-non-storage-activitie Stanford Center for Internet and Society article: "DMCA Safe Harbor for Service Providers Also Protects Non-Storage Activities Designed to Facilitate Access to User-Stored Content "]
* [http://arstechnica.com/tech-policy/news/2007/10/riaa-shifts-legal-battle-to-a-new-front-sues-usenet-access-provider.ars Technology website article: "RIAA shifts legal battle to a new front, sues Usenet access provider"]
* [http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act U.S. – EU Safe Harbour resources Wikipedia article on "Online Copyright Infringement Liability Limitation Act"]
* [http://www.export.gov/safeharbor/eg_main_018236.asp Export.gov: "Safe Harbor Overview"]
* [http://www.ita.doc.gov/td/ecom/menu.html International Trade Administration Electronic Commerce Taskforce's safe harbor documents]
* [http://www.export.gov/safeharbor/ Export.gov's safe harbor page]
* [http://www.markem.com/references/policies/REF00156%20GBL%20European%20Union%20_EU_%20Safe%20Harbour%20Privacy%20Policy.pdf PDF of GBL European Union (EU) Safe Harbour Privacy Policy]
* [http://www.thefreelibrary.com/U.S.+companies+not+complying+with+E.U.+Safe+Harbor+rules-a0127433376 News article: "U.S. companies not complying with E.U. Safe Harbor rules."]
* [http://en.wikipedia.org/wiki/International_Safe_Harbor_Privacy_Principles Wikipedia article: "International Safe Harbor Privacy Principles"]
* [http://www.truste.com/pdf/EU_Data_Sheet.pdf EU-US Safe Harbor datasheet]
* [http://web.ita.doc.gov/safeharbor/shlist.nsf/webPages/safe+harbor+list US Department of Commerce list of safe harbor countries]
* [http://ec.europa.eu/justice_home/news/information_dossiers/personal_data_workshop/doc/Presentation_Greer.ppt Presentation: "The US Safe Harbor - Fact or Fiction? (2008)"]
* [http://en.wikipedia.org/wiki/Directive_95/46/EC_on_the_protection_of_personal_data Wikipedia article: "Data Protection Directive"]

==Statutory Exemption==

'''An exemption to copyright law protections explicitly written into statute.'''

While a particular behavior might be infringing under the general description of copyright, it is specifically exempted, usually for public policy reasons. For example, copying books without the express permission of the rights-holder is a violation of copyright. However, making copies expressly for the purpose of providing the disabled with access to the book is exempted by statute. Therefore, such behavior is not infringing.

Other statutory exemptions include copying for certain academic uses, especially instructional activities, copying for archival purposes or to deal with broken or obsolete technology, distance education, and more.

The Berne Convention places some limits on what statutory exemptions a country can have in its national legislation with its three-step test, saying “"[i]t shall be a matter for legislation in the countries of the Union to permit the reproduction of such [literary and artistic] 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".

''See also:''

* [[Glossary#Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works|Berne Convention]]

''Other resources:''

* [http://www.copyright.gov/fedreg/2006/71fr68472.html US regulation 37 CFR 201: "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies" final rule]
* [http://www.copyright.gov/1201/2008/responses/new-media-rights-40.pdf PDF of New Media Right's comments in response to the Notice of Inquiry of Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies]
* [http://www.mlanet.org/government/term_ext/replycomments.html#notice Medical Library Association's comments on notice provisions and the Berne Convention]
* [http://www.proquest.com/en-US/products/dissertations/copyright/Summary.html Academic paper: "International Copyright Summaries To Accompany: "Copyright Law & Graduate Research""]
* [http://www.legco.gov.hk/yr01-02/english/panels/ci/papers/ci0110cb1-743-2e.pdf PDF: Music Publishers Association of Hong Kong Submission in Response to Consultation Document Review of Certain Provisions of Hong Kong Copyright Ordinance 1997]

==Statute of Limitations==

'''A statute of limitations is a law that limits how long a person can wait to bring a legal action after a law is broken.'''

When the time limit specified by the statute of limitations has run out, or “tolled”, any future legal action is said to be "barred". For example, if the statute of limitations for a particular crime is 10 years, it is generally not possible to prosecute for that crime twelve years after it took place.

With respect to copyright law, the statute of limitations will describe how long after an act of infringement a rights-holder can wait to bring a suit. It will also limit the number of infringing acts for which the rights holder may seek damages. The length of the time limit varies between jurisdictions, and the exact nature of the limits varies as well.

For instance, in the United States, there is a three year statute of limitations for copyright violations, although this is a generic limit, not specific to copyright. This three year clock begins on the date of the most recent infringing act. However, some courts treat this as a “rolling” three years, meaning that a rights holder can only seek damages for acts within the three years prior to bringing suit. Other courts have held that even if the infringing began more than three years prior to the suit, if the infringement was ongoing, and at least one act was within the last three years, the rights holder may seek damages for all of the infringing acts.

''Other resources:''

* [http://williampatry.blogspot.com/2005/05/statute-of-limitations-part-one.html Copyright scholar William Patry's blog entry #1 on statute of limitations]
* [http://williampatry.blogspot.com/2005/05/statute-of-limitations-part-two.html Copyright scholar William Patry's blog entry #2 on statute of limitations]
* [http://williampatry.blogspot.com/2006/07/laches-and-statute-of-limitations.html Copyright scholar William Patry's blog entry on laches statute of limitations]
* [http://williampatry.blogspot.com/2007/12/statute-of-limitations-for-actions.html Copyright scholar William Patry's blog entry on statute of limitations for actions]
* [http://law.freeadvice.com/intellectual_property/copyright_law/copyright_statute_limitations.htm Advice webpage answer "From what point in time does the 3-year statute of limitations begin to run?"]
* [http://www.plagiarismtoday.com/2006/03/30/statute-of-limitations-in-copyright-law/ Plagiarism Today article: "Statute of Limitations in Copyright Law"]
* [http://www.photoattorney.com/2005/05/dont-sit-on-your-copyright.html Photo Attorney blog post: "Don't Sit On Your Copyright Infringement Claim!"]
* [http://www.exclusiverights.net/category/statute-of-limitations/ Copyright blog post on statute of limitations: "Third Circuit holds discovery rules govern claim accrual under the Copyright Act"]
* [http://www.chicagoiplitigation.com/tags/statute-of-limitations/ IP litigation blog post: "Copyright Office Printout Suggesting Registration Sufficient to Maintain Infringement Claim"]

==“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:''

* [[Glossary#Intellectual_Effort|Intellectual Effort]]

''Other resources:''

* [http://www.gutenberg.org/wiki/Gutenberg:No_Sweat_of_the_Brow_Copyright Project Gutenberg article: "Gutenberg: No Sweat of the Brow Copyright"]
* [http://itlaw.wikia.com/wiki/Sweat_of_the_brow IT Law wiki article on: "Sweat of the Brow"]
* [http://www.copyright.gov/docs/regstat092303.html Statement of David O. Carson General Counsel, United States Copyright Office on Database and Collections of Information Misappropriation Act of 2003"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=621184 Canadian law review article: "Sweat of the Brow, Creativity and Authorship: On Originality in Canadian Copyright Law "]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1398303 Law review article: "Doctrine of Sweat of the Brow"]
* [http://www.law.duke.edu/journals/DLTR/Articles/2001dltr0017.html Law review article: "The Future of Database Protection in U.S. Copyright Law]
* [http://www.iusmentis.com/databases/us/ Law and Technology website article: "Database protection in the USA"]
* [http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf PDF of EU Commission's DG Internal Market and Services Working Paper - First evaluation of Directive 96/9/EC on the legal protection of databases"]
* [http://www.concurringopinions.com/archives/2009/05/databases-and-australian-copyright-law.html Australian blog post: "Databases and Australian Copyright Law"]
* [http://www.asis.org/Bulletin/Dec-97/Copyrite.htm US Copyright Office: "Report on Legal Protection for Databases"]
* [http://en.wikipedia.org/wiki/Sweat_of_the_brow Wikipedia Article on "Sweat of the brow"]
* [http://en.wikipedia.org/wiki/Feist_Publications_v._Rural_Telephone_Service Wikipedia article on ''Feist v Rural Telephone'']

==Tangible Medium==

'''The physical form that a copyrighted work may take.'''

U.S copyright law requires that a creative work be fixed in a “tangible medium” before it qualifies for copyright, in contrast with the law of some other countries, which confer copyright at the moment of conception.

The tangibility requirement has led to some problems with protection for types of works that are not normally “fixed”, such as dance, stand-up comedy, live musical performances, and more. It has also been the subject of much discussion with respect to computers, computer displays and computer memory, in terms of when a program or a program’s output is “fixed” or not. Some of these issues have been addressed with targeted legislation.

''See also:''

* [[Glossary#fixation|Fixation]]

''Other resources:''

* [http://www.law.cornell.edu/uscode/17/102.html US Code Â§ 102. Subject matter of copyright: In general ]
* [http://www.ehow.com/video_2384683_tangible-medium-expression-music-copyright.html Tangible Medium of Expression: Music Copyright]
* [http://www.quizlaw.com/copyrights/what_is_a_tangible_medium.php Copyright Quizlaw: What is a tangible medium?]

==“Three-Strikes” Laws==
'''A 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:''

* [[Glossary#DMCA|DMCA]]
* [[Glossary#Glossary#.22Notice_and_Takedown.E2.80.9D]]

''Other resources:''

* [http://arstechnica.com/tech-policy/news/2009/02/kiwis-get-strict-copyright-three-strikes-law-at-months-end.ars Kiwis get strict copyright, three-strikes law at month's end]
* [http://arstechnica.com/tech-policy/news/2009/07/its-baack-french-3-strikes-law-gets-another-go-from-senate.ars French "3 strikes" law returns, now with judicial oversight!]
* [http://techgeist.net/2009/05/three-strikes-law-struck-down-in-european-parliament/ Three Strikes Law Struck Down In European Parliament]
* [http://freeculturenews.com/2009/07/15/australian-goverment-considering-3-strikes-law/ Australian Goverment Considering 3 Strikes Law]
* [http://www.michaelgeist.ca/content/view/2915/125/ France Says Canada Considering "Three Strikes and You're Out" ISP Policy]
* [http://torrentfreak.com/campaign-to-stop-file-sharers-being-guilty-upon-accusation-090105/ Campaign to Stop File-Sharers Being “Guilty Upon Accusation”]

==“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:''

* [[Glossary#Statutory_Exemption|Statutory Exemption]]

''Other resources:''

* [http://williampatry.blogspot.com/2008/04/fair-use-three-step-test-and-european.html Fair Use, the Three-Step Test, and the Counter-Reformation]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=299543 Academic article: "The Three-Step Test Frenzy - Why the TRIPS Panel Decision Might be Considered Per Incuriam"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=253867 Academic article: "Toward Supranational Copyright Law? The WTO Panel Decision and the 'Three-Step Test' for Copyright Exceptions"]
* [http://www.murdoch.edu.au/elaw/issues/v10n4/meyer104.html Academic article: "Exceptions to Intellectual Property Rights: Lessons from WTO-Trips Panels"]
* [http://law.bepress.com/cgi/viewcontent.cgi?article=1520&context=expresso Academic article: "Towards a New Core International Copyright Norm: The Reverse Three-Step Test"]
* [http://www.bakercyberlawcentre.org/unlocking-ip/2009/materials/Papers/3A_BAtkinson.pdf Academic article: "Three-step test and Australia: right to remuneration and the concept of sterile copyright"]
* [http://en.wikipedia.org/wiki/Berne_three-step_test Wikipedia: Berne Three Step Test]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=924174 Academic article: "Fixing the Three-Step Test"]

==TPM – Technological Protection Measures==

'''Technological protection measures, or “TPM” are security measures added to digital technology and content by content providers in order to restrict and control access, and exert greater control over the uses of the content they sell.'''

TPM is a broader term than “DRM", which really refers only to software-encoded protections. TPM is potentially both software and hardware based. Measures could include requiring passwords, filtering software, censor chips in computers, monitoring/ surveillance technology, (semi-)autonomous software tools and more. Regionally coded DVDs and DVD players are one example of a TPM. Other examples are Microsoft’s “Trusted Computing” and the “feature” of Apple’s iTunes that permits users to transfer a song to only five different computers.

While ostensibly aimed only at infringing users, TPM techniques often have negative impact on legitimate users, both with respect to legal uses and to privacy concerns. However, under at least U.S. law, it is illegal both to circumvent any technological protection measure and to possess anything that makes circumvention possible. The potentially sweeping nature of TPMs has led some to argue that TPMs make it possible for a rights-holder to not only enforce their copyright, but to exert control over a work that exceeds the limits of what copyright law permits.

''See also:''

* [[Glossary#DRM|DRM]]

''Other resources:''

* [http://www.eifl.net/cps/sections/services/eifl-ip/issues/handbook/technological-protection Technological Protection Measures - the "triple lock"]
* [http://www.ntia.doc.gov/ntiahome/ntiageneral/cipa2003/cipareport_08142003.htm Children’s Internet Protection Act]
* [http://www.wipo.int/enforcement/en/faq/technological/faq03.html How do technological protection measures work?]
* [http://www.eff.org/pages/technological-protection-measures-draft-ftaa Technological Protection Measures in the Draft FTAA]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1162263 Technological Protection Measures in EC and Italian Copyright Law]
* [http://www.aph.gov.au/house/committee/laca/protection/report.htm Inquiry into technological protection measures (TPM) exceptions]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=793504 Academic article: "Technological Protection Measures: Tilting at the Copyright Windmill" ]
* [http://www.vjolt.net/vol8/issue3/v8i3_a13-Baesler.pdf Academic article: "How Much Fair Use Do We Need in the “Digital World”?"]
* [http://slisweb.lis.wisc.edu/~libtpm/ LibTPM: Technological Protection Measures and Research Libraries]

==Transferability (of rights)==

'''The feature of copyrights that makes it possible for one rightsholder to transfer ownership of the rights to another person.'''

One of the basic characteristics of property is that it can be transferred to others, whether by sale, gift, or something else. Copyrights are no different. While a creator initially holds copyright in his or her creative work, those rights can be transferred to another person or entity, who can then transfer them again, etc. For example, recording artists frequently transfer the copyright in their songs to a records company. Michael Jackson famously owned the rights to all of the Beatles’ music.

The various rights that “copyright” subsumes can be transferred as a block, but more often are transferred or sold one at a time, some times to different people.

==TRIPS ==

'''The Agreement on Trade Related Aspects of Intellectual Property Rights'''

TRIPS is an international agreement on property rights that came into effect in 1995.

The World Trade Organization’s website describes TRIPS as “to date, the most comprehensive multilateral agreement on intellectual property.” and states that:

“The areas of intellectual property that it covers are: copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations); trademarks including service marks; geographical indications including appellations of origin; industrial designs; patents including the protection of new varieties of plants; the layout-designs of integrated circuits; and undisclosed information including trade secrets and test data.”

The three main features of TRIPS are its sections on standards, enforcement, and dispute settlement. In a way, it is an umbrella agreement, since it requires that its participants agree to and uphold the tenets of several other agreements, treaties and conventions. These are the main conventions of the WIPO, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic in their most recent versions.

''See also:''

* [[Glossary#Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works|Berne Convention]]
* [[Glossary#WIPO|WIPO]]

''Other resources:''

* [http://www.wto.org/english/tratop_E/trips_e/intel2_e.htm Overview: the TRIPS Agreement]
* [http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm Agreement on Trade-Related Aspects of Intellectual Property Rights]
* [http://www.cid.harvard.edu/cidtrade/issues/ipr.html Intellectual Property Summary]
* [http://www.osec.doc.gov/ogc/occic/ipr.htm Overview of Intellectual Property Rights and the TRIPs Agreement]
* [http://www.wpro.who.int/NR/rdonlyres/F9F3BBE1-8663-4DF9-B08A-53B2426FD50C/0/ART_Newsletter_Issue_8.pdf HIV/AIDS Intellectual Property Review]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1400527 Academic article: "Trips, Intellectual Property Law Reform in Indonesia: Why Injunctions Aren't Stopping Piracy"]
* [http://www.wipo.int/about-ip/en/studies/pdf/ssa_lesser_trips.pdf WIPO report: "The effects of TRIPS Mandated Intellectual Property Rights on Economic Activities in Developing Countries]
* [http://www.wiggin.com/db30/cgi-bin/pubs/carlsonQLR01.pdf Academic article: "Trapped by TRIPS? Intellectual property rights, the cold war, and the Cuban embargo revisited"]
* [http://archive.ifla.org/III/clm/p1/tt-e.htm IFLA Guide for Libraries and Librarians to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)]

==UNESCO==

'''The United Nations Educational, Scientific and Cultural Organization'''

UNESCO was founded in 1945. According to [http://unesco.org its website] it “ functions as a laboratory of ideas and a standard-setter to forge universal agreements on emerging ethical issues.

The Universal Copyright Convention of 1952 was adopted under UNESCO’s auspices.

'''Other Resources'''

* [http://portal.unesco.org/en/ev.php-URL_ID=29008&URL_DO=DO_TOPIC&URL_SECTION=201.html UNESCO homepage]
* [http://portal.unesco.org/culture/en/ev.php-URL_ID=5125&URL_DO=DO_TOPIC&URL_SECTION=201.html UNESCO World Book and Copyright Day]
* [http://unesdoc.unesco.org/ulis/copyright/search.htm UNESCO copyright bulletin archives]
* [http://www.accu.or.jp/appreb/10copyr/pdf_ws0509/2_2_unesco.pdf Why is UNESCO in copyright?]
* [http://www.unesco-ci.org/cgi-bin/portals/libraries/page.cgi?g=Reference%2FCopyright%2Findex.html;d=1 UNESCO’s library resources]
* [http://oerwiki.iiep-unesco.org/index.php?title=UNESCO_OER_Toolkit/Copyright_and_Open_Content_Licensing UNESCO OER Toolkit/Copyright and Open Content Licensing ]
* [http://www.unescap.org/tid/projects/iprt_s5_urtnasan.pdf UNESCO’s Copyright Activities and Mongolia]
* [http://ec.europa.eu/libraries/doc/50ans/Copyright_innovation_and_UNESCO_Library.ppt Copyright Innovation and UNESCO Powerpoint Presentation]
* [http://ghanaculture.gov.gh/index1.php?linkid=65&archiveid=962&page=1&adate=26/05/2007 UNESCO / Ghana Copyright Workshop]
* [http://merlin.obs.coe.int/iris/1996/7/article1.en.html UNESCO Copyright and Communication in the Information Society]

==United Kingdom’s Chartered Institute of Library and Information Professionals (CILIP)==

'''CILIP: the Chartered Institute of Library and Information Professionals is the leading professional body for librarians, information specialists and knowledge managers. '''

According to [http://www.cilip.org.uk/Pages/default.aspx its website], "CILIP forms a community of around 36,000 people engaged in library and information work, of whom approximately 21,000 are CILIP members and about 15,000 are regular customers of CILIP Enterprises. CILIP speaks out on behalf of the profession to the media, government and decision makers. CILIP provides practical support for members throughout their entire careers, helpingthem with their academic education, professional qualifications, job hunting and continuing professional development.”

==Universal Copyright Convention (or UCC)==

'''The UCC, which came into effect in 1955, represents an alternative to the Berne Convention.'''

It was designed by UNESCO to provide a form of multilateral copyright protection for countries what wanted such a thing, but which disagreed with some or all of the Berne Convention. These countries include the United States and Russia as well as much of Latin America and the former USSR.

Its opening section states:

"The Contracting States, Moved by the desire to ensure in all countries copyright protection of literary, scientific and artistic works, Convinced that a system of copyright protection appropriate to all nations of the world and expressed in a universal convention, additional to, and without impairing international systems already in force, will, ensure respect for the rights of the individual and encourage the development of literature, the sciences and the arts, Persuaded that such a universal copyright system will facilitate a wider dissemination of works of the human mind and increase international under-standing, Have resolved to revise the Universal Copyright Convention as signed at Geneva on 6 September 1952 (hereinafter called `the 1952 Convention')"

All Berne Convention participants are also UCC members. Additionally, the UCC’s Article 17 explicitly states that none of its provisions are intended to conflict with the Berne Convention, making the UCC of limited importance today, since most countries are Berne members.

''See also:''

* [[Glossary#UNESCO|UNESCO]]

'''Other Resources'''

* [http://portal.unesco.org/culture/en/ev.php-URL_ID=1814&URL_DO=DO_TOPIC&URL_SECTION=201.html UNESCO website's text of Universal Copyright Convention]
* [http://www.copyrightservice.co.uk/copyright/p14_universal_copyright_convention UK copyright Serivce fact sheet on Universal Copyright Convention]
* [http://www.britannica.com/EBchecked/topic/618051/Universal-Copyright-Convention Britannica article on Universal Copyright Convention]
* [http://www.duhaime.org/LegalResources/IntellectualProperty/LawArticle-591/Universal-Copyright-Convention.aspx Legal information website on Universal Copyright Convention]
* [http://manybooks.net/titles/unitednationsother07Universal_Copyright_Convention.html Downloadable text of universal Copyright Convention]
* [http://unesdoc.unesco.org/images/0004/000444/044475Eb.pdf PDF of the draft report of the subcommitee of the intergovernmental committee of the Universal Copyright Convention]
* [http://books.google.com/books?id=OCGsutgMdPIC&pg=PA151&lpg=PA151&dq=universal+copyright+convention+analysis&source=bl&ots=JROw-agDOn&sig=bCuUXetLwC41KNJHUEzUa9cLe50&hl=en&ei=ONx5SumuF4m4M8fRmaMO&sa=X&oi=book_result&ct=result&resnum=5#v=onepage&q=&f=false Googgle Book excerpt: Intellectual property licensing By Richard Raysman, Edward A. Pisacreta, Kenneth A. Adler, Seth H. Ostrow]
* [http://en.wikipedia.org/wiki/Universal_Copyright_Convention Wikipedia article on Universal Copyright Convention]

==WIPO==

'''WIPO is the World Intellectual Property Organization.'''

According to [http://wipo.int its website], WIPO "is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest. WIPO was established by the WIPO Convention in 1967 with a mandate from its Member States to promote the protection of IP throughout the world through cooperation among states and in collaboration with other international organizations. Its headquarters are in Geneva, Switzerland. The Director General is Francis Gurry. WIPO administers 24 different treaties, including the WIPO Convention, thirteen of which are intellectual property treaties.

''Other resources:''

* [http://www.wipo.int/portal/index.html.en WIPO homepage]
* [http://www.wipo.int/treaties/en/ WIO treaties page]
* [http://www.wipo.int/treaties/en/convention/ The page for the WIPO Convention]
* [http://www.wipo.int/export/sites/www/treaties/en/documents/pdf/wipo_convention.pdf PDF with list of "Contracting parties of treaties adminstered by WIPO"]
* [http://www.wipo.int/amc/en/index.html WIPO Arbitration and Mediation Center]
* [http://www.copyright.gov/wipo/treaty1.html WIPO Copyright Treaty adopted by the Diplomatic Conference on December 20, 1996]
* [http://books.google.com/books?id=LiI0BXyPlF8C&dq=WIPO&printsec=frontcover&source=bl&ots=NaawecLEVy&sig=INAtiwx5Uy85dO9rOp9mOjmviqU&hl=en&ei=wbF5SrziD47OM7HUnaMO&sa=X&oi=book_result&ct=result&resnum=7#v=onepage&q=&f=false Google Book: WIPO guide to intellectual property worldwide -- World Intellectual Property Organization]

==WIPO Performances and Phonograms Treaty (WPPT)==

'''A WIPO treaty that came into effect in 2002, explicitly addressing the rights of performers and producers of sound recordings.'''

WIPO's website states that:

“The Treaty deals with intellectual property rights of two kinds of beneficiaries:
(i) performers (actors, singers, musicians, etc.), and (ii) producers of phonograms (the persons or legal entities who or which take the initiative and have the responsibility for the fixation of the sounds).

They are dealt with in the same instrument because most of the rights granted by the Treaty to performers are rights connected with their fixed, purely aural performances (which are the subject matter of phonograms).

As far as performers are concerned, the Treaty grants performers four kinds of economic rights in their performances fixed in phonograms (not in audiovisual fixations, such as motion pictures):
(i) the right of reproduction, (ii) the right of distribution, (iii) the right of rental, and (iv) the right of making available."

''See also:''

* [[Glossary#Fixation|Fixation]]
* [[Glossary#Rights|Rights]]

''Other resources:''

* [http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html Text of WIPO Performances and Phonograms Treaty (WPPT)]
* [http://www.wipo.int/treaties/en/ip/wppt/summary_wppt.html Summary of the WIPO Performances and Phonograms Treaty (WPPT) (1996)]
* [http://portal.unesco.org/culture/en/ev.php-URL_ID=15851&URL_DO=DO_PRINTPAGE&URL_SECTION=201.html Supplemental UNESCO page on WPPT]
* [http://books.google.com/books?id=_pJyKvyGlUoC&pg=PA165&lpg=PA165&dq=WIPO+Performances+and+Phonograms+Treaty+%28WPPT%29&source=bl&ots=QQkMs_bIk-&sig=loiRRI8ommcqBd71rJYKU2ByXAE&hl=en&ei=B955SoP-GZXYNp3LlaMO&sa=X&oi=book_result&ct=result&resnum=10#v=onepage&q=&f=false Google Book excerpt:Concise European copyright law By Thomas Dreier, P. B. Hugenholtz]
* [http://en.wikipedia.org/wiki/WIPO_Performances_and_Phonograms_Treaty Wikipedia article on WPPT]

==WTO – World Trade Organization==

'''The WTO is an organization devoted to the rules of international trade.'''

According to [http://www.wto.org its website], the WTO's "main function is to ensure that trade flows as smoothly, predictably and freely as possible."

The WTO is responsible for, among other things, the TRIPS agreement, which was the first time and place that copyright issues became a focus of an international trade agreement.

''See also:''

* [[Glossary#TRIPS|TRIPS]]

''Other resources:''

* [http://www.wto.org/ WTO website]
* [http://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr00_e.htm The WTO in Brief]
* [http://www.wto.org/english/tratop_e/trips_e/trips_e.htm TRIPS materials on WTO website]
* [http://www.wto.org/english/tratop_e/dispu_e/dispu_subjects_index_e.htm#copyright WTO index of disputes issues]
* [http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm WTO website: Uraguay Round Agreement: TRIPS Trade-Related Aspects of Intellectual Property Rights]
* [http://www.wired.com/threatlevel/2009/01/china-pledges-w/ WIRED magazine article: "China Pledges WTO Copyright, Trademark Cooperation"]
* [http://www.chinadaily.com.cn/china/2007-07/04/content_909757.htm China Daily article: "US urged to withdraw WTO copyright complaint"]
* [http://www.nytimes.com/2009/01/27/business/27trade.html New York Times article: "W.T.O. Finds China Copyright Law Lacking"]
* [http://www.readwriteweb.com/archives/gad-zookz_wto_to_allow_copyright_infringement.php ReadWriteWeb article: "Gad-Zookz! WTO to Allow Copyright Infringement?" (Antigua)]
* [http://www.wipo.int/clea/en/details.jsp?id=3389 WTO page for Panama: Industrial Property (WTO Copyright), Law (Title VII Art. 286 & 291]
* [http://www.trademinister.gov.au/releases/2000/mvt065a_00.html Media release: "WTO Copyright Win a Boom for Australian Musicians"]
* [http://merlin.obs.coe.int/iris/1996/6/article11.en.html European Commission WTO copyright infringement procedure against Japan]
* [http://jobfunctions.bnet.com/abstract.aspx?docid=64544 Article: "Toward Supranational Copyright Law? The WTO Panel Decision and the 'Three-Step Test' for Copyright Exceptions"]
* [http://jlis.glis.ntnu.edu.tw/ojs/index.php/jlis/article/download/416/416 Article: "Impact of WTO’s Copyright Protection to Library Operations & Academic Communications"]
* [http://ifl.sagepub.com/cgi/pdf_extract/29/2/141 Article: "TRIPS into the unknown: Libraries and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights]
* [http://fairuse.stanford.edu/primary_materials/regulations/fr092995.html Text of US Code of Federal Regulations: Restoration of Certain Berne and WTO Works]
* [http://libraryjuicepress.com/blog/?p=550 Article: "A Marxist Analysis of the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights"]
* [http://www.ifla.org/en/publications/the-ifla-position-on-the-world-trade-organization The IFLA Position on The World Trade Organization (available in Chinese, French and German]
* [http://archive.ifla.org/III/clm/p1/pos-wto.htm The IFLA Position on WTO Treaty Negotiations]

==Work For Hire==

'''A creative work that the creator has made at someone else’s request, usually for pay.'''

Work for hire is a concept from U.S. copyright law, and exists in a few others as well. For example, if a person commissions a sculpture from an artist, and provides very specific requirements as to materials and appearance, the sculpture will probably be a work for hire, although the ultimate determination is fact specific.

The concept serves to clear up any confusion that might result when an employee creates a copyrightable work in the course of their employment. Under the “works made for hire” doctrine, the employer holds the copyright in such a situation.

It is this doctrine that ensures that, for example, the hundreds of people who work on the production of a motion picture do not have any claim to the copyright.

However, the nature of the employer/employee relationship can be complex and difficult to define, especially when it exists only for the duration of the work’s creation, or the work is created in an educational context.

Further complicating things, since the Berne Convention separately recognizes economic and moral rights, even a creator who has made a work for hire may still possess moral rights in that work.

''See also:''

* [[Glossary#Neighboring_Rights|Neighboring Rights]]
* [[Glossary#Transferability_.28of_rights.29|Transferability of Rights]]
* [[Glossary#Academic_Exception|Academic Exception]]

''Other resources:''

* [http://www.copyright.gov/circs/circ09.pdf PDF of US Copyright Office circular "Works Made for Hire Under the 1976 Copyright Act"]
* [http://www.copyright.gov/title17/92chap2.html Text of US copyright law "Chapter 2 - Copyright Ownership and Transfer"]
* [http://www.copylaw.com/new_articles/wfh.html Article: "Working with freelancers: What every publisher should know about the "work for hire" doctrine."]
* [http://www.oyez.org/cases/1980-1989/1988/1988_88_293 A short analysis of ''Community For Creative Non-Violence v. Reid'' the seminal U.S. case on the topic]
* [http://www.music-law.com/workforhire.html Music Law.com's page on work for hire]
* [http://www.keytlaw.com/Copyrights/wfhire.htm Legal information site's page on "Works Made for Hire Under the Copyright Act"]
* [http://www.artistshousemusic.org/videos/protecting+your+work+understanding+publishing+copyright+and+work+for+hire Video: Protecting Your Work: Understanding Publishing, Copyright, and “Work For Hire”"]
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=359720 Law Review article: "Pre-existing Confusion in Copyright's Work-for-Hire Doctrine"]
* [http://www.gkbledsoe.com/articles/submissions/work_for_hire.html The Writing for Children Resource Site article: "The Work-for-hire question"]
* [http://www.eff.org/deeplinks/2007/09/film-schools-teach-wrong-copyright-lesson EFF article: "Film Schools Teach Wrong Copyright Lesson"]
* [http://www.scribd.com/doc/1795117/EFF-ACM-copyright-FAQ-010806 Academy for Creative Media FAQ on the Student Copyright Agreement]
* [http://keepyourcopyrights.org/copyright/rights/work-for-hire KeepYourCopyrights.org page on Work for Hire]
* [http://en.wikipedia.org/wiki/Work_for_hire Wikipedia article on work for hire]

{{NavFooter}}

Main Page

2011-10-11T11:03:39Z

Thackett:

__NOEDITSECTION__
{| style="border:0; margin: 0;" width="100%" cellspacing="4"

| valign="top" style="width:55%; padding:0; border:1px solid #ffcc00; margin-bottom:3px;" |

<div style="font-size: 105%; font-weight:bold; padding:0.4em; background-color:#ffffcc; border-bottom:1px solid #ffcc00; text-align: center;">Preface</div>
<div style="background:#ffffff; padding:0.2em 0.4em 0.2em 0.4em;">
{| style="border: 0; margin: 0;" cellpadding="3"
| valign="top" |
=== Objectives ===

Copyright for Librarians is a joint project of the [http://cyber.law.harvard.edu/ Berkman Center for Internet & Society] and [http://www.eifl.net/ Electronic Information for Libraries (EIFL)], a consortium of libraries from 50 countries in Africa, Asia and Europe. The goal of the project is to provide librarians in developing and transitional countries information concerning copyright law. More specifically, it aspires to inform librarians concerning:
*copyright law in general
*the aspects of copyright law that most affect libraries
*how librarians in the future could most effectively participate in the processes by which copyright law is interpreted and shaped.

=== How to Use this Course ===

The course materials can be used in three different ways. First, they can provide the basis for a self-taught course. A librarian can read the modules in sequence or focus on the modules that address issues that interest him or her.

Second, the course materials can be used in a traditional classroom-based course. In such a setting, the instructor will determine the pace at which the materials are read and will select topics for discussion. The instructor may find useful the Assignments we have included in the modules, but will likely pose additional questions as well.

Third and finally, the materials can be used in a distance-learning course. An instructor will guide the inquiry, but the librarians taking the course will participate remotely through their computers. To assist the instructors in such settings, we have included a discussion tool, originally developed at the Berkman Center, known as the Rotisserie. A manual explaining to instructors how they might use the Rotisserie is available [http://cyber.law.harvard.edu/copyrightforlibrarians/How_to_prepare_a_Rotisserie_session here]. Instructions explaining to students how to sign up for and use the Rotisserie are available [http://cyber.law.harvard.edu/copyrightforlibrarians/Information_about_the_Rotisserie_Session here]. This system can be used to facilitate conversations among the students concerning the Assignments we have included in each module. Alternatively, an instructor could identify different questions for discussion.

=== Levels ===

Not all users will have the time or interest to read all of the materials contained in this curriculum. Recognizing this, we have arranged and marked the materials in ways that should assist instructors and users in deciding how deeply to explore this subject. Specifically, the materials are organized into five levels:

* Level 1 (appropriate for users who want a basic knowledge of how copyright law affects the work of librarians in developing and transitional countries): Read modules 1, 3-7. (In other words, skip the Introduction and modules 2, 8, and 9.)

* Level 2 (appropriate for users who are also interested in the theory underlying copyright law and in the international dimensions of copyright law): Read the Introduction and all of the modules.

* Level 3 (appropriate for use in a one-semester undergraduate course in this subject or for users who wish to obtain an in-depth understanding of the field and to see how legislatures and courts are struggling to refine and apply copyright law): Read all of the modules and, in addition, all of the documents marked with red links.

* Level 4 (appropriate for use in a graduate-level course in this subject): Read all of the modules and, in addition, all of the documents marked with red and green links.

* Level 5 (appropriate for a faculty member preparing to teach this subject): Read all of the modules and, in addition, all of the documents marked with red, green, and blue links.

===Off-Line Usage===

Some users will find it more convenient to use these materials off-line. They are provided for off-line use in two formats. First, the materials have been packaged as a [[Offline ISO|ISO]] that can be [[Offline ISO|written to a CD-ROM]] and viewed with any browser (such as [http://www.google.com/chrome Chrome], [http://www.mozilla.com/firefox/ Firefox], [http://www.microsoft.com/windows/internet-explorer/default.aspx Internet Explorer], [http://www.opera.com/ Opera], [http://www.apple.com/safari/download/ Safari], etc). Second, the materials have also been packaged as a [[Offline PDF|PDF]] document that can be [[Offline PDF|viewed and printed]] with any PDF viewer (such as [http://get.adobe.com/reader/ Adobe Acrobat], [http://gnome.org/projects/evince/ Evince], [http://www.ghostscript.com/ GhostScript], [http://en.wikipedia.org/wiki/Preview_(software) Preview], etc).

An effort has been made to include all links to relevant material in both the CD-ROM and printable versions. However, in order to access content that is external to the course materials contained on this site, an internet connection is necessary.

===Permissions===

The course materials prepared by the project are licenced under a [http://creativecommons.org/licenses/by/3.0/ Creative Commons Attribution license]. Librarians and the public at large are encouraged to use, distribute, translate, modify, and build upon these materials, provided that they give EIFL and the Berkman Center appropriate credit.

===Disclaimer===

This course does not offer legal advice. It provides general information concerning the principles that underlie the copyright system, and it indicates how various concrete problems are resolved in most countries. It cannot, however, provide reliable guidance concerning how a court in a specific country would respond to a specific set of facts. Thus, if you find yourself coming close to any of the legal boundaries described in these materials, you should consult a lawyer in your own jurisdiction.

===Help Us Improve the Course===

We hope to update and refine these materials periodically. To do so, we need help from users. Please let us know if a piece of information contained in a module is incorrect or out of date. If you have suggestions concerning either the content of the modules or the way in which the content is presented, we are eager to hear them. Finally, librarians are strongly encouraged to let us know how the issues addressed in the modules are handled in their home countries; we will try to include that information in future versions.

You can make these suggestions in either of two ways. First, if you would like your suggestion to be available to the public, please click on the "Discussion" tab at the top of the module page to which your suggestion is relevant. Second, you can simply email us at [mailto:cfl-feedback@cyber.law.harvard.edu cfl-feedback@cyber.law.harvard.edu].

We look forward to your contributions.

The EIFL and Berkman teams
|}

</div>

| valign="top" style="width:40%; padding:0; border:1px solid #ffcc00; margin-bottom:3px;" |

<div style="font-size: 105%; font-weight:bold; padding:0.4em; background-color:#ffffcc; border-bottom:1px solid #ffcc00; text-align: center;">Contents</div>
<div style="background:#ffffff; padding:0.2em 0.4em 0.2em 0.4em;">
{| style="border: 0; margin: 0;" cellpadding="3"
| valign="top" |

'''[[Introduction]]'''

'''Course Materials:'''
* '''[[Module 1: Copyright and the Public Domain]]'''
* '''[[Module 2: The International Framework]]'''
* '''[[Module 3: The Scope of Copyright Law]]'''
* '''[[Module 4: Rights, Exceptions, and Limitations]]'''
* '''[[Module 5: Managing Rights]]'''
* '''[[Module 6: Creative Approaches and Alternatives]]'''
* '''[[Module 7: Enforcement]]'''
* '''[[Module 8: Traditional Knowledge]]'''
* '''[[Module 9: Activism]]'''
* '''[[Glossary]]'''
'''[[Contributors]]'''

'''The Rotisserie'''
* for students: '''[[Information about the Rotisserie Session]]'''
* for instructors: '''[[How to prepare a Rotisserie session]]'''

</div>

Main Page

2011-10-11T11:02:41Z

Thackett:

__NOEDITSECTION__
{| style="border:0; margin: 0;" width="100%" cellspacing="4"

| valign="top" style="width:55%; padding:0; border:1px solid #ffcc00; margin-bottom:3px;" |

<div style="font-size: 105%; font-weight:bold; padding:0.4em; background-color:#ffffcc; border-bottom:1px solid #ffcc00; text-align: center;">Preface</div>
<div style="background:#ffffff; padding:0.2em 0.4em 0.2em 0.4em;">
{| style="border: 0; margin: 0;" cellpadding="3"
| valign="top" |
=== Objectives ===

Copyright for Librarians is a joint project of the [http://cyber.law.harvard.edu/ Berkman Center for Internet & Society] and [http://www.eifl.net/ Electronic Information for Libraries (EIFL)], a consortium of libraries from 50 countries in Africa, Asia and Europe. The goal of the project is to provide librarians in developing and transitional countries information concerning copyright law. More specifically, it aspires to inform librarians concerning:
*copyright law in general
*the aspects of copyright law that most affect libraries
*how librarians in the future could most effectively participate in the processes by which copyright law is interpreted and shaped.

=== How to Use this Course ===

The course materials can be used in three different ways. First, they can provide the basis for a self-taught course. A librarian can read the modules in sequence or focus on the modules that address issues that interest him or her.

Second, the course materials can be used in a traditional classroom-based course. In such a setting, the instructor will determine the pace at which the materials are read and will select topics for discussion. The instructor may find useful the Assignments we have included in the modules, but will likely pose additional questions as well.

Third and finally, the materials can be used in a distance-learning course. An instructor will guide the inquiry, but the librarians taking the course will participate remotely through their computers. To assist the instructors in such settings, we have included a discussion tool, originally developed at the Berkman Center, known as the Rotisserie. A manual explaining to instructors how they might use the Rotisserie is available [http://cyber.law.harvard.edu/copyrightforlibrarians/How_to_prepare_a_Rotisserie_session here]. Instructions explaining to students how to sign up for and use the Rotisserie are available [http://cyber.law.harvard.edu/copyrightforlibrarians/Information_about_the_Rotisserie_Session here]. This system can be used to facilitate conversations among the students concerning the Assignments we have included in each module. Alternatively, an instructor could identify different questions for discussion.

=== Levels ===

Not all users will have the time or interest to read all of the materials contained in this curriculum. Recognizing this, we have arranged and marked the materials in ways that should assist instructors and users in deciding how deeply to explore this subject. Specifically, the materials are organized into five levels:

* Level 1 (appropriate for users who want a basic knowledge of how copyright law affects the work of librarians in developing and transitional countries): Read modules 1, 3-7. (In other words, skip the Introduction and modules 2, 8, and 9.)

* Level 2 (appropriate for users who are also interested in the theory underlying copyright law and in the international dimensions of copyright law): Read the Introduction and all of the modules.

* Level 3 (appropriate for use in a one-semester undergraduate course in this subject or for users who wish to obtain an in-depth understanding of the field and to see how legislatures and courts are struggling to refine and apply copyright law): Read all of the modules and, in addition, all of the documents marked with red links.

* Level 4 (appropriate for use in a graduate-level course in this subject): Read all of the modules and, in addition, all of the documents marked with red and green links.

* Level 5 (appropriate for a faculty member preparing to teach this subject): Read all of the modules and, in addition, all of the documents marked with red, green, and blue links.

===Off-Line Usage===

Some users will find it more convenient to use these materials off-line. They are provided for off-line use in two formats. First, the materials have been packaged as a [[Offline ISO|ISO]] that can be [[Offline ISO|written to a CD-ROM]] and viewed with any browser (such as [http://www.google.com/chrome Chrome], [http://www.mozilla.com/firefox/ Firefox], [http://www.microsoft.com/windows/internet-explorer/default.aspx Internet Explorer], [http://www.opera.com/ Opera], [http://www.apple.com/safari/download/ Safari], etc). Second, the materials have also been packaged as a [[Offline PDF|PDF]] document that can be [[Offline PDF|viewed and printed]] with any PDF viewer (such as [http://get.adobe.com/reader/ Adobe Acrobat], [http://gnome.org/projects/evince/ Evince], [http://www.ghostscript.com/ GhostScript], [http://en.wikipedia.org/wiki/Preview_(software) Preview], etc).

An effort has been made to include all links to relevant material in both the CD-ROM and printable versions. However, in order to access content that is external to the course materials contained on this site, an internet connection is necessary.

===Permissions===

The course materials prepared by the project are licenced under a [http://creativecommons.org/licenses/by/3.0/ Creative Commons Attribution license]. Librarians and the public at large are encouraged to use, distribute, translate, modify, and build upon these materials, provided that they give eIFL and the Berkman Center appropriate credit.

===Disclaimer===

This course does not offer legal advice. It provides general information concerning the principles that underlie the copyright system, and it indicates how various concrete problems are resolved in most countries. It cannot, however, provide reliable guidance concerning how a court in a specific country would respond to a specific set of facts. Thus, if you find yourself coming close to any of the legal boundaries described in these materials, you should consult a lawyer in your own jurisdiction.

===Help Us Improve the Course===

We hope to update and refine these materials periodically. To do so, we need help from users. Please let us know if a piece of information contained in a module is incorrect or out of date. If you have suggestions concerning either the content of the modules or the way in which the content is presented, we are eager to hear them. Finally, librarians are strongly encouraged to let us know how the issues addressed in the modules are handled in their home countries; we will try to include that information in future versions.

You can make these suggestions in either of two ways. First, if you would like your suggestion to be available to the public, please click on the "Discussion" tab at the top of the module page to which your suggestion is relevant. Second, you can simply email us at [mailto:cfl-feedback@cyber.law.harvard.edu cfl-feedback@cyber.law.harvard.edu].

We look forward to your contributions.

The EIFL and Berkman teams
|}

</div>

| valign="top" style="width:40%; padding:0; border:1px solid #ffcc00; margin-bottom:3px;" |

<div style="font-size: 105%; font-weight:bold; padding:0.4em; background-color:#ffffcc; border-bottom:1px solid #ffcc00; text-align: center;">Contents</div>
<div style="background:#ffffff; padding:0.2em 0.4em 0.2em 0.4em;">
{| style="border: 0; margin: 0;" cellpadding="3"
| valign="top" |

'''[[Introduction]]'''

'''Course Materials:'''
* '''[[Module 1: Copyright and the Public Domain]]'''
* '''[[Module 2: The International Framework]]'''
* '''[[Module 3: The Scope of Copyright Law]]'''
* '''[[Module 4: Rights, Exceptions, and Limitations]]'''
* '''[[Module 5: Managing Rights]]'''
* '''[[Module 6: Creative Approaches and Alternatives]]'''
* '''[[Module 7: Enforcement]]'''
* '''[[Module 8: Traditional Knowledge]]'''
* '''[[Module 9: Activism]]'''
* '''[[Glossary]]'''
'''[[Contributors]]'''

'''The Rotisserie'''
* for students: '''[[Information about the Rotisserie Session]]'''
* for instructors: '''[[How to prepare a Rotisserie session]]'''

</div>

Module 8: Traditional Knowledge

2011-05-24T14:00:09Z

Thackett: /* United Nations Declaration on the Rights of Indigenous Peoples (2007) */

==[[Image:key.png|50px|]] Learning objective ==

One of the most complex recent extensions of copyright law involves traditional knowledge. This module first describes the intricate and rapidly changing set of legal rules pertaining to traditional knowledge, and then explores the fierce continuing debate concerning the appropriate scope of protection for this novel topic.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

== [[Image:casestudy.png|50px|]]Case Study ==

Angela is a member of an indigenous community that has a unique tradition of dance. Performances of these dances attract members of other indigenous communities and tourists. Angela calls Nadia when she sees elements of one of the dances in a recently released music video by the American singer, Madonna. Anglea asks whether she has any legal recourse either to stop the use of the dance or to obtain compensation for herself or for her community.

</div>

==[[Image:lesson.png|50px|]] Lesson ==

=== What Is Traditional Knowledge? ===

Though difficult to define, '''traditional knowledge (TK)''' is generally understood to encompass four types of creative works: '''verbal expressions''' (stories, epics, legends, folk tales, poetry, riddles, etc.), '''musical expressions''' (folk songs and instrumental music), '''expressions by action''' (dances, plays, ceremonies, rituals and other performances) and '''tangible expressions''' that must be fixed on a permanent material (drawings, designs, paintings (including body-paintings), carvings, sculptures, pottery, mosaics, jewelry, basket work, textiles, carpets, costumes, musical instruments, etc.) More detailed definitions can be found in the [http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_7/wipo_grtkf_ic_7_3.pdf World Intellectual Property Organization (WIPO)] and [http://portal.unesco.org/culture/en/ev.php-URL_ID=34325&URL_DO=DO_TOPIC&URL_SECTION=201.html United Nations Educational, Scientific and Cultural Organization (UNESCO)] Model Provisions. TK is used interchangeably with the term '''traditional cultural expressions (TCEs)'''; both refer to music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives. TCEs are integral to the cultural and social identities of indigenous and local communities. They embody knowledge and skills, and they transmit core values and beliefs.

=== What is the Debate About? ===

Several combined forces have recently led to commercialization of TCEs on a global scale without due respect being given to the cultural or economic interests of the communities from which they originate. The Internet provides pervasive access to TCEs. The demand of western consumers for what is sometimes (disrespectfully) called "primitive art" has increased. Finally, tourism in developing countries has exposed more potential consumers to manifestations of folklore that can be found there. As a result, indigenous groups are seeking protection for their TCEs and their responses have affected legislation at national, regional and international levels.

=== What types of Traditional Knowledge are Most Frequently Used? ===

Exploitation of TK occurs in different forms. Examples include the unauthorized production of indigenous craft objects in the [http://www.wipo.int/export/sites/www/tk/en/studies/cultural/minding-culture/studies/carpetscase-main.pdf souvenir market], the unauthorized use of indigenous imagery on [http://www.wipo.int/tk/en//studies/cultural/minding-culture/studies/rockart.pdf clothing], [http://cita.chattanooga.org/chml.html food products], or [http://news.bbc.co.uk/2/hi/asia-pacific/1627209.stm toys], the unauthorized use of indigenous names or phrases as [http://www.wipo.int/export/sites/www/tk/en/studies/cultural/minding-culture/studies/trademarks.pdf trademarks], the unauthorized incorporation of traditional dance into commercial [http://www.villagevoice.com/2004-04-13/news/rap-rage-redvolution/ performances], and the unauthorized use of traditional music in commercial [http://en.wikipedia.org/wiki/Taiwanese_aborigines musical productions].

=== What Kind of Legal Liability Governs? ===

What kinds of legal rules (if any) should govern use of traditional knowledge by people who are not members of communities from which the TK originates? This issue is being addressed on national, regional and international levels. TK might be protected through conventional IP law -- for example, through the use of Copyright law, Patent law, Geographical Indicators, or Certification Trademarks. However, many regions and countries have found it difficult to fit TK into traditional IP protection schemes. As a result, some have adopted ''sui generis'' laws that apply specifically to TK. Examples of these different approaches are discussed below.

== How Individual Nations deal with Traditional Knowledge ==

==='''Countries Whose Traditional IP Laws Do Not Cover Traditional Knowledge'''===

Several nations have copyright laws that expressly exclude folklore from the list of works eligible for copyright protection. These include: '''Armenia, Azerbaijan, Belarus, Bulgaria, Estonia, Greece, Hungary, Kazakhstan, Kyrgyzstan, Lebanon, Lithuania, Moldova, Russia, Slovenia, The Ukraine, Uzbekistan''' and '''Yemen'''. These countries tend to classify traditional knowledge as within the "public domain" and thus do not restrict use of or access to TK. For instance, [http://www.ohr.int/ohr-dept/legal/oth-legist/doc/BH-LAW-ON-COPYRIGHT-AND-RELATED-RIGHTS.doc Article 9] of the 2002 Copyright Act of '''Bosnia and Herzegovina''' states that "the use of folk literature and art creations for the purpose of a literary, artistic or scientific arrangement shall be free."

=== '''Countries Whose Traditional IP Laws Cover Traditional Knowledge'''===

==== ''' Protection Despite No Explicit Reference to TCE'''====

The traditional IP statutes in some nations contain no explicit references to folklore, but TCEs may still be protected in those nations under copyright law, other traditional intellectual property doctrines, or through special statutes. For example, most countries in Europe have copyright legislation that may be used to cover traditional knowledge, but do not have any provisions explicitly mentioning TCEs. These include: '''Belgium''', '''Cyprus''', '''Denmark''', '''Finland''', '''France''', '''Germany''', '''Iceland''', '''Italy''', '''Latvia''', '''Luxembourg''', '''Norway''', '''Poland''', '''Portugal''', '''San Marino''', '''Spain''', '''Sweden''', and '''Switzerland'''. Several other "major industrialized countries" lack explicit TCE references as well. These include: '''Australia''', '''Canada''', '''Japan''', and the '''United States'''. Additionally, several countries with recently-enacted copyright legislation have not expressly included TCEs within its scope. Included in this group are several Asian countries (such as '''India''', '''Malaysia''', '''Philippines''', and '''Thailand''') and several Caribbean and South American countries (such as '''Barbados''', '''El Salvador''', '''Saint Vincent and the Grenadines''', '''Trinidad and Tobago''', and '''Venezuela'''). Silence in these statutes, however, does not mean that traditional knowledge is unprotected. Rather, in these countries TCEs are protected on the basis of traditional IP, customary, regional or international laws or through ''sui generis'' legislation.

In '''Australia''', TCEs are protected through traditional copyright law. For example, in [http://www.austlii.edu.au/au/journals/AILR/1996/20.html ''Milpurrurru v. Indofurn Ply Ltd.''((.link_red))], aboriginal Australian artists sued to prevent the importation by a Perth-based company of carpets manufactured in Vietnam, upon which were reproduced the designs of several prominent aboriginal artists without their permission. The designs had been copied from a portfolio of artworks produced by the Australian National Gallery. The federal court awarded the aboriginal artists substantial damages for copyright infringement and granted an injunction against any further infringement. The court pointed out that the unauthorized use of the artwork involved the pirating of cultural heritage and that such behavior could have far reaching effects on the Australian cultural environment. It was deemed especially offensive that the images had been used on a medium (carpet) that was designed to be walked upon.

Other nations have begun using trademark law to protect TCEs, even when TCEs are not mentioned in national statutes. For example, in '''Canada''', '''New Zealand''' and the '''United States''', as well as '''Australia''', indigenous people have sometimes relied (with varying degrees of success) upon trademark law or its equivalent to protect tribal names and other designs and motifs against unauthorized use by others. Considerable efforts have also been made to protect sacred and culturally significant symbols as well as collective and certification marks under traditional trademark law. For instance, '''Australia''' provides for design registration, which allows for the registration of features of shape, configuration, pattern or ornamentation applicable to an article. This system protects the visual form for 16 years, provided that it is new and original and is not based on a pre-existing design. Still, because of the originality requirement, this system has not yet been effective for protecting folklore. More effective is the system used in '''New Zealand'''. There, the recently adopted [http://www.legislation.govt.nz/act/public/2002/0049/latest/DLM164240.html?search=ts_act_Trade+Marks+Act_resel&sr=1 Trade Marks Act of 2002], prevents the registration of trademarks based on Maori text or imagery where the use or registration of such marks would be offensive to the Maori. The Commissioner of Trade Marks has set up a Maori Advisory Committee to advise on whether the proposed registration or use of a mark is likely to be offensive.

Although the '''United States''' has not acted to provide general protection for indigenous peoples' traditional knowledge, it has sometimes adopted narrow statutes in response to Native Americans' attempts to regain self-governance and to control the use of their traditional knowledge by non-community members. Efforts of this sort include:

* the [http://www.nps.gov/history/local-law/anti1906.htm Antiquities Act of 1906] (16 U.S.C. §§ 431-33 (2000)), giving the President power to set aside as national monuments certain historic landmarks, structures and other objects of historic interest,
* the [http://www.nps.gov/history/local-law/hsact35.htm Historic Sites, Buildings and Antiquities Act of 1935] (16 U.S.C. §§ 461-67), empowering the National Park Service to restore, reconstruct, and maintain sites and objects of historic interest,
* the [http://www.nps.gov/history/local-law/nhpa1966.htm National Historic Preservation Act of 1966] (16 U.S.C. § 470), providing for the maintenance of a National Register of Historic Places and requiring the Secretary of the Interior to establish a program to help Native American tribes to preserve their properties, taking into account tribal values,
* the [http://www.doi.gov/iacb/act.html Native American Arts and Crafts Act] (25 U.S.C. § 305 (2000)), intended to assure the authenticity of Native American artifacts, and
* the [http://www.nps.gov/nagpra/MANDATES/25USC3001etseq.htm Native American Graves Protection and Repatriation Act] (“NAGPRA”)( 25 U.S.C. § 3001(1)-(13) (2000)), which provided that the ownership or control of Native American cultural items excavated or discovered on federal or tribal lands remained with lineal descendants, Native American tribes, or Hawaiian Organizations.

==== ''' Protection Using Explicit Reference to TCEs'''====

Many countries now explicitly refer to folklore in their copyright legislation. Such references take various forms.

Some countries have sections, chapters, or special parts of copyright law that are entirely devoted to folklore. Countries within this group include '''Algeria, Bolivia, Brazil, Burkina Faso, Burundi, Chile, Congo, Ghana, Kenya, Mongolia, Morocco, Namibia, Nicaragua, Niger, Nigeria, Papua New Guinea, Paraguay, Rwanda, Seychelles, Togo, Tanzania, Tunisia,''' and '''Zimbabwe'''.

In the '''Congo''', for example, folklore is considered party of the country's heritage, and Congolese copyright law protects folklore without a time limitation. A "Body of Authors" society is responsible for collecting royalties, representing authors' interests, and overseeing the use of folklore. Permission must be sought from the society before any public performance, reproduction, or adaptation of folklore for commercial purposes. This includes the import or distribution of copies of works of national folklore made abroad. Public agencies are exempted from the obligation to obtain prior authorization to use folklore for non-profit activities, though they still must notify the society before use.

In '''Ghana''', the recently adopted [http://www.wipo.int/clea/en/text_pdf.jsp?lang=EN&id=1789. Copyright Act of 2005] significantly changed the way traditional knowledge is protected. In the Act, copyright protection extends to literary works, artistic works, musical works, sound recordings, broadcasts, cinematographic works, choreographic works, derivative works, and program-carrying broadcast signals. To be eligible for copyright, the work must be original, in writing (or otherwise reduced to material form), and created by a citizen or resident of Ghana. The work must also have been first published in Ghana, or, if first published outside Ghana, published in Ghana within thirty days of its original publication. A work created by an individual is protected for the life of that individual plus fifty years; a work created by a corporation is protected for fifty years from the date on which the work was first made public. In Ghana, an author has exclusive rights to reproduce the work (with the exception of private use, quotations in other works, and use in pedagogy, which are permitted). It is an infringement of the copyright to reproduce, sell or exhibit in public for commercial purposes any work without authorization, or to use the work in a manner that adversely affects the reputation of the author. Both civil and criminal penalties may apply. Article 59 of the Act establishes a National Folklore Board, which governs the administration, preservation, registration and promotion of expressions of folklore. The Board may authorize the use of folklore and may determine a fee to be paid. The Act provides that the copyrights of authors of folklore vest in the government as if the government were the creator of the works. In Ghana (as in the Central African Republic and Congo), funds from fees or other money accruing from the use of folklore are to be used for social welfare benefits.

'''Namibia''' grants indigenous communities indefinite exclusive rights to control expressions of folklore and their adaptations, translations, and transformations. These exclusive rights include the right to publicize, make a reproduction, or distribute copies of an expression of folklore; communicate an expression of folklore to the public by performance, broadcasting, distribution by cable or other means; include an expression of folklore in a cinematographic film or a television broadcast; cause the folklore expression, or a television program or other program including the expression, to be transmitted in a diffusion service (unless such service transmits a lawful broadcast, including the expression, and is operated by the original broadcaster); make adaptations, translations and other transformation of the expression ([http://www.wipo.int/export/sites/www/tk/en/consultations/questionnaires/ic-2-7/namibia.pdf Article 60]). [http://www.wipo.int/export/sites/www/tk/en/consultations/questionnaires/ic-2-7/namibia.pdf Article 61], however, allows a secondary user to use expressions of folklore for personal or private use, criticism or review, teaching or scientific research, and incidental use. Article 61 also allows the use of the original expression if the use is "compatible with fair practice," such as for creating an illustration or borrowing the expression to create an original work.

Likewise, '''Nigerian''' [http://www.nigeria-law.org/CopyrightAct.htm Copyright Law] protects expressions of folklore "against reproduction, communication to the public by performance, broadcasting, [or] distribution by cable." In addition, it forbids adaptations, translations, and other transformations of such folklore, when made either for commercial purposes or outside their traditional customary context. The right to authorize any of these acts lies with the Nigerian Copyright Council. However, Nigerian folklore may be used without authorization for private, educational, or illustrative purposes. The law requires identification of the source of the folklore by reference to the community or place from which the folklore is derived. Violations of the law subject the user to liability in damages, injunctions, and other remedies the court deems appropriate. Nigeria also protects traditional knowledge through patents and trademarks. To be patentable, an invention must be new, result from inventive activity, and be capable of industrial application. The patent right is vested in the inventor, and the patent is valid for 20 years after the filing date. Additionally, Nigerian legislation protects registered trademarks. Registration is valid for seven years and then can be renewed; registration is limited to marks that are distinctive.

In '''Rwanda''', [http://www.amategeko.net/display_rubrique.php?ActDo=ShowArt&Information_ID=874&Parent_ID=3070032&type=public&Langue_ID=Fr&rubID=3070056#3070056 Art. 3 of the Copyright Law (1983)] provides generous protection to folklore. Included in its coverage are traditions and literary productions (tales, legends, myths, proverbs, accounts, and poems), artistic works (dances and spectacles of any kind, musical works of any kind, styles and works of decorative art, and architectural styles), religious works (ritual rites, objects, clothing, and places of worships), scientific knowledge (practices and products of medicine and pharmacology, theoretical and practical fields of the natural science and anthropology), and technological knowledge.

The Copyright Law of '''Zimbabwe''' protects performers' rights to record, broadcast and distribute copies of their performances ([http://www.unesco.org/culture/pdf/anti-piracy/Zimbabwe/zb_copyright_2000_en Section 68]). In addition, it extends protection to a "work of folklore," which it defines as a literary, musical or artistic work, whether or not it is recorded, of which: (a) no person can claim to be the author; and (b) the form or content is embodied in the traditions peculiar to one or more communities in Zimbabwe; and includes: (i) folk tales, folk poetry and traditional riddles; (ii) folk songs and instrumental folk music; (iii) folk dances, plays and artistic forms of ritual; and (iv) productions of folk art, in particular drawings, paintings, sculptures, pottery, woodwork, metalwork, jewelery, baskets and costumes ([http://www.unesco.org/culture/pdf/anti-piracy/Zimbabwe/zb_copyright_2000_en Section 80]).

The copyright laws in several other countries shield traditional knowledge by including folklore in the list of literary and artistic works eligible for regular copyright protection. Countries adopting this approach include '''Angola, Benin, Cameroon, Djibouti, Gabon, Guinea, Ivory Coast, Lesotho, Madagascar, Mali, Mozambique, Oman, Republic of Central Africa, Senegal, Togo, Uganda, and Zaire'''.

For instance, '''Cameroonian''' law extends copyright protection to [http://www.wipo.int/clea/en/text_html.jsp?lang=en&id=836 "works derived from folklore."] Users must seek permission from the National Copyright Corporation before any commercial exploitation of folklore may occur. Agents authorized by the Corporation regulate the use of folklore in Cameroon, while the Corporation collects royalties fixed by agreement between the parties and brings infringement actions against unlawful users of protected works.

'''Lesotho''''s [http://www.copyright-watch.org/sites/default/files/LesothoCopyrightOrder1989.pdf Copyright Order of 1989] defines folklore as cultural productions with "characteristic elements of the traditional artistic heritage developed and maintained over generations by a community or by individuals reflecting the traditional artistic expectations of their community." Works inspired by expressions of folklore are protected as original works (Article 4(c)).

In '''Mali''' all persons (except public entities) seeking to use folklore for profit must obtain prior authorization from the Minister of Arts and Culture who may impose a fee for such use. The law prohibits the assignment or licensing of "works derived from folklore" without the approval of the Minister. The law also places in the public domain and charges a user fee for all "works whose authors are unknown, including the songs, legends, dances, and other manifestations of the common cultural heritage."

'''Senegal''' includes folklore in the list of works eligible for copyright protection. Article 1 of the Senegalese Copyright Act provides special protection for folklore, and Article 9 states that any "direct or indirect" fixation of such material for "profit-making purposes" is subject to prior authorization by the Copyright Office of Senegal. All folklore uses require prior authorization from the Office, which charges users a fee whose amount depends on the nature of the use and prior arrangements. Senegal criminalizes the importation of works into Senegal that violate its copyright law.

''' Uganda's''' [http://www.i-network.or.ug/index2.php?option=com_docman&task=doc_view&gid=93&Itemid=130 Copyright and Neighbouring Rights Act, 2006] grants copyright protection to "work in the field of literature, traditional folklore and knowledge, science and art" (Article 5). It grants performers -- persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore -- the right to control the fixation, transmission and reproduction of their performances (Articles 2 and 22).

A final group of countries protect TCEs by granting rights to the State for its protection. Included in this group are '''Egypt, Jordan, Malawi, Saudi Arabia, Sudan, ''' and '''Qatar'''.

For instance, in '''Sudan''', [http://www.wipo.int/clea/en/text_html.jsp?lang=en&id=3605#P116_9052 Article 7] of the Copyright Act notes that "National folklore of the Sudanese community is deemed to be the property of the State" and that the "State represented by the Ministry of Culture and Information, shall endeavor to protect works of folklore by all legal ways and means, and shall exercise the rights of an author in cases of mutilation, transformation and commercial exploitation." Similarly, in '''Egypt''', [http://www.ecipit.org.eg/Arabic/pdf/IPR%20law%20no%2082%20year%202002%20English.pdf Article 142] of the Law on the Protection of Intellectual Property Rights No. 82 (3 June 2002) defines "national folklore" as part of the "public domain of the people." The act states, "The competent ministry shall exercise the author’s economic and moral rights and shall protect and support such folklore." In '''Saudi Arabia''', [http://www.boe.gov.sa/English/En%20Word/2%20Media,%20Culture%20and%20Publishing/Copyright%20Law.doc Article 7] of the Copyright Law of 2003 states that "[f]olklore shall be the property of the state, and the Ministry shall exercise the copyright pertaining thereto," and that "[t]he import or distribution of copies of folklore works, copies of their translations or others which are produced outside the Kingdom without a license from the Ministry shall be prohibited." Likewise, in '''Qatar''', Article 32 of the Copyright Act of 2002 provides that "[n]ational folklore shall be the public property of the State" and that "the State...shall protect national folklore by all legal means, and shall act as the author of folklore works in facing any deformation, modification or commercial exploitation." In '''Jordan''', [http://www.agip.com/country_service.aspx?country_key=50&service_key=C&SubService_Order=3&lang=en Article 7(c)(3)] of the Copyright Law No. 22 of 1992 excludes from copyright protection "works which reverted to the public domain. For the purpose of this article folklore shall be considered in the public domain with the minister exercising the copyrights of these works against distortion, misrepresentation or damage to cultural interests" unless "the collections of these works were distinguished by a personal effort involving innovation or arrangement."

=== '''Countries with ''Sui Generis'' Traditional Knowledge Laws'''===

The countries discussed in the previous section include traditional knowledge in their regular copyright laws, but typically treat TK somewhat differently from other types of copyrighted works. The members of the final group of countries go one step further. Instead of classifying TK as a (special) type of copyrighted work, these countries have adopted so-called ''sui generis'' laws that create an entirely different sort of legal protection for TK. (As we will see, the distinction between customized copyright laws and sui generis laws is blurry, but is nevertheless helpful in differentiating the types of approaches to this issue.)

Two early examples of national ''sui generis'' laws grew out of countries' efforts to protect the traditional knowledge of indigenous groups concerning the medicinal value of plants. '''Ecuador’s''' [http://www.wipo.int/clea/en/text_html.jsp?lang=en&id=1205 Law on Intellectual Property of 1998] protects the country’s biological and genetic heritage and conditions the grant of product or process patents relating to that heritage on the acquisition of rights from the relevant traditional owners. Similarly, in 1997, the '''Philippine Congress''' passed the [http://www.grain.org/brl_files/philippines-ipra-1999-en.pdf Indigenous Peoples Rights Act] “to recognize and promote all the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs), including their rights to “preserve and develop their cultures, traditions, and institutions” in cultural property. The Act affirms the right of ICCs/IPs to the full ownership and control of their cultural and intellectual rights. Thus, access to biological and genetic resources is permitted only after obtaining the free and informed consent of such communities. In addition, the Act guarantees ICCs/IPs the right to practice and revitalize their cultural traditions, including “to practice and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect and have access to their religious and cultural sites; the right to the use and control of ceremonial objects; and, the right to the repatriation of human remains.”

'''Panama's''' [http://www.ichrdd.ca/english/commdoc/publications/indigenous/aresioPanamaLawEng.html Act No. 20] launched the ''sui generis'' protection movement specifically for TCEs in June, 2000. The Act subjects “the rights of use and commercialization of the arts, crafts and other cultural expressions based on the tradition of the indigenous community” to the regulation of each indigenous community approved and registered in the DIGERPI or in the National Copyright Office of the Ministry of Education. It defines “indigenous collective rights” as “indigenous intellectual and cultural property rights law relating to art, music, literature...and other subject matter and manifestations that have no known author or owner and no date of origin and constitute the heritage of an entire indigenous people.”

Likewise, '''Peru's''' 2002 [http://www.wipo.int/export/sites/www/tk/en/laws/pdf/peru_law_27811.pdf ''sui generis'' TK Law] aims to promote respect for and protect the "collective knowledge of indigenous peoples; to promote the fair and equitable distribution of the benefits derived from the use of that collective knowledge; to promote the use of the knowledge for the benefit of the indigenous peoples and mankind in general; to ensure that the use of the knowledge takes place with the prior informed consent of the indigenous peoples; to promote the strengthening and development of the potential of the indigenous peoples...and to avoid situations where the patents are granted for inventions made or developed on the basis of collective knowledge of the indigenous peoples of Peru without any account being taken of that knowledge as prior art in the examination of the novelty and inventiveness of the said inventions."

In 2003, '''Guatemala''' designed and implemented a special ''sui generis'' set of intellectual property rights for indigenous folklore, backed by both civil and criminal penalties. Guatemala's "Cultural Heritage Protection Law" also enables the attorney general to protect any registered indigenous cultural good (including oral or musical traditions) and provides perpetual intellectual property protection for any registered item. The Guatemalan system is reciprocal; it recognizes the registered folklore of any other country that recognizes the Guatemalan registry.

It is likely that many other countries will soon adopt ''sui generis'' TK laws. One indication of the trend in this direction is that many national members of WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore have called for the establishment of ''sui generis'' systems in their written submissions to the Committee. Among such countries are '''Brazil, Colombia, Ethiopia, Egypt, Indonesia, Iran, Morocco, the Russian Federation, Thailand''', and '''Venezuela'''.

== Regional Codes Governing Traditional Knowledge ==

Another way in which some countries attempt to protect traditional cultural expressions (TCEs) is by pooling their resources and creating intergovernmental organizations that monitor and seek to control the use of TCEs in foreign territories. Advantages of this approach include harmonizing local laws, centralizing administration, and avoiding duplication of costly efforts across multiple countries. While the objectives of regional laws may be sound, it is debatable whether the regional organizations provide effective forms of enforcement. The major examples of this strategy are described below.

=== '''[http://www.aripo.org/ African Regional Intellectual Property Organization (ARIPO)]''' ===
The African Regional Intellectual Property Organization (ARIPO) (originally named the African Regional Industrial Property Organization) was formed in 1976 and includes many of the English-speaking African countries: '''Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia,''' and '''Zimbabwe'''. ARIPO’s overall [http://www.aripo.org/index.php?option=com_content&view=article&id=19&Itemid=53 objectives] are to harmonize intellectual property regimes, foster cooperation, and provide coordinated administrative training across member states.

ARIPO has adopted two central protocols: the [http://www.aripo.org/index.php?option=com_docman&task=doc_view&gid=4&tmpl=component&format=raw&Itemid=11 Harare Protocol], pertaining to patents and industrial designs, and the [http://www.aripo.org/index.php?option=com_docman&task=doc_view&gid=5&tmpl=component&format=raw&Itemid=11 Banjul Protocol], relating to trademarks and service marks. Surprisingly, neither protocol specifically mentions protection of traditional knowledge or TCEs. Some have criticized the protocols as insensitive to the needs of the member states. However, since the adoption of the protocols, ARIPO has continued to work with the World Intellectual Property Organization (WIPO) to protect indigenous knowledge. Furthermore, ARIPO’s Administrative Council has initiated a study to assess the feasibility of developing a traditional knowledge database. In 2009, ARIPO’s Administrative Council [http://www.aripo.org/index.php?option=com_docman&task=doc_view&gid=57&tmpl=component&format=raw&Itemid=11 suggested] three primary ways to implement the Organization’s mandate on the protection of genetic resources, traditional knowledge, and expressions of folklore: (1) develop ARIPO’s Traditional Knowledge Digital Library, (2) create regional frameworks on access and benefit sharing related to biological resources, and (3) adopt the Draft Protocol and implementing regulations on the protection of traditional knowledge and the expressions of folklore. Progress on one or more of these paths can be expected in the near future.

=== '''[http://www.oapi.wipo.net/en/OAPI/index.htm African Intellectual Property Organization (OAPI)]''' ===
The African Intellectual Property Organization (OAPI) was created by the francophone African countries in 1962. The organization's most important legal instrument is the Bangui Agreement, which was signed in 1977. The following 16 African countries are bound by the Agreement: '''Benin, Burkina Faso, Cameroon, Central African Republic, Congo, Cote d’Ivoire, Guinea, Equitorial Guinea, Gabon, Guinea Bissau, Mali, Mauritania, Niger, Senegal, Chad,''' and '''Togo'''. The [http://www.oapi.wipo.net/doc/en/bangui_agreement.pdf Bangui Agreement] was amended in 1999 so that its formal name is now “the Agreement of 24 February 1999 Revising the Bangui Agreement of 2 March 1977 on the creation of an African Intellectual Property Organization.” Although the 1977 version of the Agreement is no longer effective, comparing the 1977 and 1999 versions helps to identify the strengths and weaknesses of OAPI’s most important agreement.

====''Annex VII in the 1977 Bangui Agreement''====

The most notable difference between the 1977 and the 1999 Agreements is the removal of direct protection of folklore from the copyright section. Annex VII of the 1977 Agreement obliged member states to declare use of folklore to a national agency and to pay fees for such use. The fees collected were directed, in part, to cultural and social purposes. This section was criticized for its vagueness because most people were not sure how broadly to interpret the scope of “use of elements borrowed from folklore” (1977 Agreement, Annex VII, Chapter 1, Article 8, para. 5). Additionally, the older version of the Bangui Agreement imposed a fine for any use “of folklore work or a work that has entered the public domain” without prior declaration to the appropriate national agency (1977 Agreement, Annex VII, Chapter 1, Article 38, para. 2). The older system can be described as one in which folklore automatically belongs to the public domain and folklore users simply pay the public domain for the use to be authorized. Alternatively, this older system can be characterized as one in which folklore is owned and regulated by the state because, as declared in the original Agreement, the state has an indefeasible right with respect to folklore and “folklore is by its origin part of national heritage” (1977 Agreement, Annex VII, Chapter 1, Article 8, para. 1). The tension between these two interpretations ultimately created confusion regarding who owned TCEs. Protection of folklore and cultural heritage was then moved from the copyright section of the 1977 Agreement to the section discussing provisions common to copyright and neighboring rights in the 1999 Agreement. As discussed below, this new placement did not eliminate confusion and ambiguity.

====''Annex VII in the [http://www.oapi.wipo.net/doc/en/bangui_agreement.pdf 1999 Bangui Agreement]''====

The 1999 Bangui Agreement continues earlier attempts to protect folklore and cultural heritage. Under the new system, users of folklore must receive prior authorization. The objectives of the system are to protect (Chapter 2), to safeguard (Chapter 3), and to promote (Chapter 4) cultural heritage. “Cultural heritage” is defined as a composition of “all those material or immaterial human productions that are characteristic of a nation over time and space. Such productions relate to (i) folklore, (ii) sites and monuments; [and] (iii) ensembles” (Article 67, paras. 1-2). The definitions of “folklore” (Article 68) and “monuments” (Article 70) are very detailed. Additionally, the definitions of “sites” and “ensembles” can be found in Articles 69 and 71, respectively.

Prohibited acts are listed in Article 73. They include deformation, export, misappropriation, and unlawful transfer. Article 74 states three main exceptions to these prohibitions: "use for teaching," "use as illustration of the original work of an author on condition that the scope of such use remains compatible with honest practice," and "borrowings for the creation of an original work from one or more authors."

A fee payment scheme similar to the 1977 Agreement still exists in which “the exploitations of expressions of folklore and that of works or productions that have fallen into the public domain . . . shall be subject to the user entering into an undertaking to pay the national collective rights administration body a relevant royalty” (1999 Agreement, Annex VII, Chapter 5, Article 59, para. 1). The fees will be donated, in part, to “welfare and cultural purposes” (1999 Agreement, Annex VII, Chapter 5, Article 59, para. 3).

Some observers contend that the 1999 Agreement completely removed folklore from copyright law and instead provided it with ''sui generis'' protection whereby folklore is regulated and owned by the government. However, others see that folklore can still be protected as a form of copyright as stated in Article 5 of Annex VII. This ambiguity creates confusion as to who owns folklore under the terms of the Agreement. This confusion is even greater than in the 1977 Agreement because there are no longer specific references to the States having an indefeasible right with respect to folklore and cultural heritage.

=== '''[http://en.wikipedia.org/wiki/Mercosur Common Market of the South (MERCOSUR)]''' ===

MERCOSUR is a regional trade agreement created in 1991 by the Treaty of Asuncion between '''Argentina, Brazil, Paraguay,''' and '''Uruguay'''. In 1995, the regional organization adopted an important protocol to protect indigenous heritage: the Protocol for the Harmonization of Intellectual Property Norms in MERCOSUR with respect to Trademarks and Indications of Source or Denominations of Origin. In particular, Article 19 of the Protocol requires Party States to “reciprocally protect their indications of source and dominations of origin.” “Denomination of origin” is defined broadly as “the geographical name of a country, city, region or locality within a Party State's territory, which designates products or services whose qualities or characteristics are exclusively or essentially caused by the geographical environment, including natural and human factors.” Such a broad definition of geographic origin -- which notably includes “human factors” -- encompasses traditional cultural expressions. Similarly, the Protocol attempts to protect traditional knowledge through its definition of “indications of source” by basing the defined term on the location that is “known as a center place for extraction, production or manufacture of a certain product or for the performance of a certain service.” In 1996, MERCOSUR affirmed the importance of cultural rights by creating the Protocol on the Cultural Integration of MERCOSUR. Although traditional knowledge is not specifically mentioned, this protocol focuses on the creation of cultural policies that display historical traditions, common values, and cultural diversity of member countries.

=== '''[http://www.comunidadandina.org/endex.htm Andean Community]'''===

The Andean Community (originally known as the Andean Pact) was created in 1969 with the signing of the Cartagena Agreement. The overall objective of the Community is to enable the member countries to work jointly to “improve their people’s standard of living through integration and economic and social cooperation.” The current member states are '''Bolivia, Columbia, Ecuador,''' and '''Peru;''' '''Mexico''' and '''Panama''' are observer countries. In 2000, the Community enacted [http://www.comunidadandina.org/ingles/normativa/D486e.htm Decision 486], the purpose of which was to improve intellectual property protection and provide “more expeditious and transparent procedures for trademark registration and patent issues.” Although this Decision focuses on biological resources, it also provides for protection of traditional knowledge in the General Provisions. Article 3 states that member countries must “ensure that the protection granted to intellectual property elements shall be accorded while safeguarding and respecting their biological and genetic heritage, together with the traditional knowledge of their indigenous, African American, or local communities. As a result, the granting of patents on inventions that have been developed on the basis of material obtained from that heritage or that knowledge shall be subordinated to the acquisition of that material in accordance with international, Andean Community, and national law. The Member Countries recognize the right and the authority of indigenous, African American, and local communities in respect of their collective knowledge.”

=== '''[http://www.forumsec.org.fj/resources/uploads/attachments/documents/PacificModelLaw,ProtectionofTKandExprssnsofCulture20021.pdf Pacific Regional Framework for the Protection of Traditional Knowledge and Expression of Culture]''' ===

The [http://www.forumsec.org/resources/uploads/attachments/documents/PacificModelLaw,ProtectionofTKandExprssnsofCulture20021.pdf Pacific Regional Framework for the Protection of Traditional Knowledge and Expression of Culture] was created in 2002 but has not yet been implemented. It was drafted by the [http://www.forumsec.org/index.cfm Pacific Islands Forum Secretariat] whose member countries are '''Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Republic of Marshal Islands, Samoa, Solomon Islands, Tonga, Tuvalu,''' and '''Vanuatu'''. Additionally, the following countries have associate membership: '''New Caledonia''' and '''French Polynesia'''. Finally, '''Tokelau, Wallis and Futuna, the Commonwealth, the Asia Development Bank,''' and '''Timor L'este''' all have observer status.

The Forum has developed a [http://www.forumsec.org/resources/uploads/attachments/documents/Traditional%20Knowledge%20Action%20Plan%202009.pdf specific action plan] that details ways that the member countries plan to protect the Region’s traditional knowledge. In particular, the Forum has created a set of [http://www.forumsec.org/resources/uploads/attachments/documents/PacificModelLaw,ProtectionofTKandExprssnsofCulture20021.pdf Model Laws to protect traditional knowledge and the expressions of culture]. The laws are noteworthy because they not only protect TK and TCEs but also employ customary uses as the foundation of the framework.

The Framework’s general approach is to create ''new'' rights in traditional knowledge and expressions of culture, which previously may have been regarded as part of the public domain. People seeking to use TCEs must have prior and informed consent from the traditional owners. The rights the Framework specifies fall into two categories: moral rights and traditional cultural rights. It is crucial to note that neither moral nor traditional cultural rights depend on copyright formalities (e.g., registration requirements). Moral rights include the right of attribution, the right against false attribution, and the right of integrity of indigenous work. As stated in Clause 7(2) of Part I, traditional cultural rights include the right to reproduce, publish, perform, make available online, and create derivative works, among many others. These are said to be both exclusive and inalienable.

Clause 11 is noteworthy because it states that traditional rights exist in addition to (and do not affect) the rights created by other intellectual property law regimes. Clause 7(4) provides that there is no traditional knowledge protection in the following contexts: face-to-face teaching, criticism or review, reporting news or current events, judicial proceedings, and incidental use.

Clause 7 of Part I of the Framework makes clear who owns the protected TCEs. Traditional owners are defined as: “a group, clan, or community of people, or the individual who is recognized by a group, clan, or community of people as the individual, in whom the custody or protection of the traditional knowledge or expressions of culture are entrusted in accordance with customary law and the practices of that group, clan, or community.”

Finally, Clause 37 details the role of the Cultural Authority in protecting TCEs. Those attempting to seek permission to use elements of protected TCEs have two options: (1) apply directly to the Cultural Authority or (2) communicate directly with the traditional owners. One of the Authority’s many roles is to advise the traditional owners. Valid TCE users must prove they have received consent from the traditional owners via an “authorized user agreement.”

This Framework is ambitious and may provide for strong TCE protection once adopted; however, its potential impact is unknown as the laws have not yet been implemented.

== International Legal Instruments ==

The final set of laws pertaining to traditional knowledge consist of international agreements. These agreements have emerged from various international organizations, including the United Nations Education, Scientific and Cultural Organization (UNESCO), the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO) and the International Labor Organization (ILO). The types and strength of the protections they provide for TCEs vary radically; no consistent pattern or theme is discernible. They are discussed below in reverse chronological order.

=== '''[http://www.un.org/esa/socdev/unpfii/en/drip.html United Nations Declaration on the Rights of Indigenous Peoples]''' (2007) ===
The UN has been [http://www.sami.uit.no/girji/n02/en/102daes.html#Anchor-39228 investigating] the protection of minorities and indigenous populations since 1969. On 30 January 2007, the Assembly of the Union adopted a decision (Assembly/AU/ Dec. 141 (VIII)), known as the UN Declaration on the rights of indigenous peoples. 143 countries voted in favor of the Declaration. '''Australia, Canada, New Zealand''' and the '''United States''' voted against it. '''Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa''' and '''Ukraine''' abstained. The Declaration is the most comprehensive statement of the rights of indigenous peoples ever developed, giving prominence to collective rights to a degree unprecedented in international human rights law. The adoption of this instrument is the clearest indication yet that the international community is committing itself to the protection of the individual and collective rights of indigenous peoples. The key provisions follow.
===== Article 8 =====
# Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. States shall provide effective mechanisms for prevention of, and redress for:
Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;
Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;
Any form of forced assimilation or integration;
Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.
===== Article 11 =====
# Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.
# States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.
===== Article 12 =====
# Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.
# States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.
===== Article 25 =====
Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.
===== Article 27 =====
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples' laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.
===== Article 28 =====
# Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
# Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.
===== Article 31 =====
# Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
# In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.
===== Article 34 =====
Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

=== [http://www.wipo.int/export/sites/www/tk/en/consultations/draft_provisions/pdf/draft-provisions-booklet.pdf WIPO Draft Provisions on Traditional Cultural Expressions/Folklore and Traditional Knowledge] (2006) ===

In 1998, the World Intellectual Property Organization (WIPO) embarked on a fact-finding mission to 28 countries to identify intellectual property-related regulations of traditional knowledge. Following a review of those materials, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) was formed in 2001. Since 2004, it has been [http://www.wipo.int/tk/en/consultations/draft_provisions/draft_provisions.html working] on draft provisions for the enhanced protection of traditional cultural expressions against misappropriation and misuse. Although the provisions are still in draft form, they are meant to serve as points of reference for ongoing policy discussions at the national, regional, and international levels.

The Draft Provisions have the following objectives: to recognize value; to promote respect; to meet the actual needs of communities; to prevent the misappropriation of traditional cultural expressions/expressions of folklore; to empower communities; to support customary practices and community cooperation; to contribute to safeguarding traditional cultures; to encourage community innovation and creativity; to promote intellectual and artistic freedom, research and cultural exchange on equitable terms; to contribute to cultural diversity; to promote community development and legitimate trading activities; to preclude unauthorized IP rights and to enhance certainty, transparency and mutual confidence. The General Guiding Principles and Substantive Principles are available [http://www.wipo.int/export/sites/www/tk/en/consultations/draft_provisions/pdf/draft-provisions-booklet.pdf here((.link_red))].

==='''[http://portal.unesco.org/culture/en/ev.php-URL_ID=33232&URL_DO=DO_TOPIC&URL_SECTION=201.html Convention on the Protection and Promotion of the Diversity of Cultural Expressions]''' (2005) ===
The Convention on the Protection and Promotion of the Diversity of Cultural Expressions builds off the earlier [http://portal.unesco.org/en/ev.php-URL_ID=13179&URL_DO=DO_TOPIC&URL_SECTION=201.html Universal Declaration on Cultural Diversity] of (2001). '''Canada, France, Germany, Greece, Mexico, Monaco, Morocco,''' and '''Senegal''' and Francophone member states of UNESCO strongly supported the Convention. The '''United States''' opposed it. 104 countries have acceded to or ratified the Convention.

The Convention recognizes "the importance of traditional knowledge as a source of intangible and material wealth, and in particular the knowledge systems of indigenous peoples, and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion." It seeks to “to reaffirm the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory” (Article 1(h)). The Convention also seeks to mitigate the dilution of culture that follows from the movement of cultural goods and services across national borders.

The Convention mentions intellectual property rights once, by recognizing "the importance of intellectual property rights in sustaining those involved in cultural creativity." The Convention is ambiguous, however, on how much protection to grant to TCEs. Article 6 lists the types of measures member states may adopt to protect and promote cultural diversity. Subsection 2(g) allows “measures aimed at nurturing and supporting artists and others involved in the creation of cultural expressions” but subsection 2(e) allows for measure that “promote the free exchange and circulation of . . . cultural expressions and cultural activities, goods and services.” Strong support for indigenous groups as creators of TCEs is not required by Article 7, as members states need only “endeavour to recognize the important contribution of artists, others involved in the creative process, cultural communities, and organizations that support their work, and their central role in nurturing the diversity of cultural expressions.”
Professor Laurence R. Helfer has [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891303 noted] that the Convention disregards the protection for TCEs that could be derived from the use of intellectual property law.

=== '''[http://www.unesco.org/culture/ich/index.php?pg=00006 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage] (2003)''' ===
In 2001, [http://www.unesco.org/culture/ich/index.php?pg=00007 UNESCO] began drafting a definition of intangible cultural heritage and formulating provisions for its protection. In 2003, the resulting Convention was adopted and in 2006 it entered into force. [http://www.unesco.org/culture/ich/index.php?pg=00024 121] countries have ratified the Convention. '''Australia, Canada, New Zealand''' and the '''United States''' have not ratified the Convention. '''Argentina, Columbia, Denmark, Indonesia, Saudi Arabia, Seychelles''' and '''the Syrian Arab Republic''' all entered declarations or reservations.

[http://www.unesco.org/culture/ich/index.php?pg=00006 Article 1] lists the purposes of the Convention as "to safeguard the intangible cultural heritage; to ensure respect for the intangible cultural heritage of the communities, groups and individuals concerned; to raise awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof; to provide for international cooperation and assistance." Although the Convention does not directly discuss intellectual property rights, [http://www.unesco.org/culture/ich/index.php?pg=00022 Article 3] notes that nothing in the Convention affects "the rights and obligations of States Parties deriving from any international instrument relating to intellectual property rights ... to which they are parties."

===== Article 11 Role of States Parties =====
Each State Party shall:
# take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory;
# among the safeguarding measures referred to in Article 2, paragraph 3, identify and define the various elements of the intangible cultural heritage present in its territory, with the participation of communities, groups and relevant nongovernmental organizations.

=== Trade-Related Aspects of Intellectual Property Rights (1994) ===
As we saw in Module 2, the 1994 [http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm TRIPS Agreement] created a set of minimum intellectual property standards for all members of the World Trade Organization. Although the Agreement requires developing countries to increase many forms of intellectual property protection, it does not mention folklore or TCEs.

After the passage of TRIPS, the UN Human Rights Commission studied its implications for human rights. In 2000, the Commission, relying on that study, adopted Resolution 2000/7 on Intellectual Property and Human Rights. The Resolution notes that “actual or potential conflicts exist between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights in relation to . . . the reduction of communities’ (especially indigenous communities’) control over their own . . . natural resources and cultural values.” It declares that “the implementation of the TRIPS Agreement does not adequately reflect the fundamental nature and indivisibility of all human rights, including . . . the right to self-determination. There are apparent conflicts between the intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and international human rights law, on the other.” The Sub-Commission urged national governments, intergovernmental organizations, and civil society groups to give human rights primacy over the economic policies and agreements. Since the passage of the 2000/7 Resolution, Human Rights bodies at the UN have investigated the relationship between intellectual property law and human rights, as discussed by Lawrence Helfer in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891303 this article((.link_green))].

=== '''[http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169 ILO Convention 169 on Indigenous and Tribal People]''' (1989) ===
The International Labor Organization, a special agency under the auspices of the UN, was the first international organization to attempt to define indigenous populations and to declare the rights of such populations. ILO Convention No. 169 replaced [http://www.ilo.org/ilolex/cgi-lex/convde.pl?C107 ILO Indigenous and Tribal Populations Convention No. 107] (1957) that had been ratified by six African States. Although no African states have yet [http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169 ratified] ILO Convention 169, the [http://www.ilo.org/indigenous/Resources/Publications/lang--en/docName--WCMS_115929/index.htm ILO and the African Commission on Human and Peoples’ Rights] view this instrument as an inspiration and a reflection of a trend towards the protection of indigenous rights globally and in Africa.

The 169 Convention focuses on indigenous peoples’ rights to control their own institution, economic development, customs and belief systems. It applies to "tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations" and to "peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions." [http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169 Article 1]. The Convention does not mention intellectual property rights, but seeks to protect indignous culture and recognizes the collective ownership that characterizes many indigenous populations.
===== Article 4(1) =====
Special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned.
===== Article 5 =====
# the social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals;
# the integrity of the values, practices and institutions of these peoples shall be respected;
# policies aimed at mitigating the difficulties experienced by these peoples in facing new conditions of life and work shall be adopted, with the participation and co-operation of the peoples affected.
===== Article 13 =====
# In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.

=== '''[http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html Berne Convention for the Protection of Literary and Artistic Works] (1979)''' ===
Although the Berne Convention (discussed at length in Module 2) does not mention traditional knowledge, Article 15(4) can be interpreted to leave to the discretion of each member country how (if at all) to protect TCEs.
===== Article 15(4) =====
# In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.

=== '''[http://www2.ohchr.org/english/law/cescr.htm International Covenant on Economic, Social and Cultural Rights]''' (1966) ===
The International Covenant on Economic, Social and Cultural Rights (ICESCR) establishes a right to the protection of the moral and material interests resulting from any scientific, literary or artistic production. ICESCR has 160 [http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en parties], 69 of which are signatories.
[https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=48+Am.+U.L.+Rev.+769&srctype=smi&srcid=3B15&key=353d9e7da6d89fd06493aaddf1e8606b Read.] In conjunction with the 1948 Universal Declaration of Human Rights, and recognizing the binding nature of the treaty upon its signatories, the ICESCR can be [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891303 interpreted] as guaranteeing intellectual property rights as a human right. In 2005, the Committee on Economic, Social and Cultural Rights (CESCR) [http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/E.C.12.GC.17.En?OpenDocument commented] on Article 15 of the ICESCR (reproduced below), expanding it to protect indigenous groups' expressions of cultural heritage. CESCR calls upon signatories to adopt protective measures that "recognize, register and protect the individual or collective authorship of indigenous peoples under national intellectual property rights regimes and should prevent the unauthorized use of scientific, literary and artistic productions of indigenous peoples by third parties."

===== Article 15=====
# The States Parties to the present Covenant recognize the right of everyone:
## To take part in cultural life;
## To enjoy the benefits of scientific progress and its applications;
## To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
# The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
# The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

==='''[http://www2.ohchr.org/english/law/ccpr.htm International Covenant on Civil and Political Rights]''' (1966)===
The International Covenant on Civil and Political Rights (ICCPR) recognizes the self determination of minority groups and their right to control their culture. The ICCPR has 165 [http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en parties], 72 of which are signatories. Although the ICCPR is silent on most cultural and intellectual property rights issues, [https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=48+Am.+U.L.+Rev.+769&srctype=smi&srcid=3B15&key=353d9e7da6d89fd06493aaddf1e8606b considered] in conjunction with the 1966 International Covenant on Economic, Social and Cultural Rights and the 1948 Universal Declaration of Human Rights, the ICCPR can be viewed as establishing intellectual property rights as human rights.

=====Article 1 =====
# All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

=====Article 27 =====
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

=== '''[http://www.un.org/en/documents/udhr/index.shtml Universal Declaration of Human Rights] (1948)''' ===
The Universal Declaration of Human Rights (UDHR) establishes the right to the protection of moral interests and materials deriving from any scientific, literary or artistic production. The UDHR is not a binding document, but it is a foundational document for the United Nations and for the two 1966 Covenants, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.

Although the UDHR does not address intellectual property rights, [http://www.un.org/en/documents/udhr/index.shtml Article 27] of the UDHR recognizes the "moral and material interests" of authors and inventors and the right of the public “to enjoy the arts and to share in scientific advancement and its benefits.” This article expresses the challenge of balancing private intellectual property rights and a vibrant public domain.

===== Article 17 =====
# Everyone has the right to own property alone as well as in association with others.
# No one shall be arbitrarily deprived of his property.
===== Article 27 =====
# Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
# Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

== Policy Arguments ==

As indicated above, the questions of whether and how to protect traditional knowledge are currently being debated and are highly controversial. At the international level and within many individual countries, strong differences of opinion can be found. Set forth below are summaries of the primary arguments made in this debate.

===Why Protect TK? ===

'''Arguments from Personhood'''. For many indigenous groups, TK encompasses cultural elements that are integral to the group's sense of identity. One can argue that objects and expressions that are fundamental to a person's or group's identity merit protection, and at the extreme, could be considered inalienable. Similarly, some advocates for TK protection have proposed a "cultural stewardship" justification for this protection. For example, Kristen Carpenter, Sonya Katyal and Angela Riley advocate allowing indigenous communities to retain control, if not exclusive access and ownership, of TK because of its importance in shaping the identity of the indigenous group and its culture.

Closely related to arguments from personhood are arguments from moral rights, which we discussed in Module 4. It is argued, just as an individual artist should enjoy a right of attribution and integrity with respect to her creations, so should a community enjoy a right of attribution and integrity with respect to its collective creations.

'''Arguments based on Preservation'''. Another reason to advocate for protection of TK is that unlike many forms of intellectual property, cultural expressions may require protection in order to preserve their value. For example, religious ceremonies and sacred rituals may be valuable to a culture in part because they are not widespread; their rarity is integral to their place in the culture. In order to maintain the value of these traditions, it may be necessary to restrict their use.

'''Arguments based on Reparations'''. A third argument in favor of protection for TK is based upon the idea that many indigenous cultures have been damaged by invasive colonialism practiced by Western countries in the past few centuries. Supporters of this argument believe that protection of TK is a way of providing reparations, symbolic as well as monetary, for the wrongs committed against these indigenous groups.

=== How Should TK be protected? ===

==== Traditional IP Modes of Protection ====

'''Copyright'''

As we have seen, many nations have used copyright law (either alone or in conjunction with ''sui generis'' laws) to protect TK. However, there are many arguments against using standard copyright to protect TK.

#''The fixation requirement.'' Some copyright systems require that a work be fixed in a material form. This is an obstacle in the protection of TCEs, which are not always manifested in tangible expressions.
#''Originality.'' Copyright law requires that a work be "original" in order to merit protection. Since most TK is "traditional" rather than new, this originality requirement will often be difficult to satisfy.
#''Authorship.'' Much cultural expression develops gradually over time, through the contributions of several members of a community. If no single author or group of authors can be identified, it will be difficult for copyright protection to be obtained.
#''The term of protection.'' The term of protection for copyright in most countries is traditionally limited, and not infinite. Many forms of TK are in fact older than the copyright term. As a result, copyright protection may be unavailable for them.

To avoid these difficulties, it is possible for countries to modify copyright legislation so that it has different requirements for folklore or cultural expression. For example, the [http://portal.unesco.org/culture/en/ev.php-URL_ID=31318&URL_DO=DO_TOPIC&URL_SECTION=201.html Tunis Model Law for Copyright in the Developing Countries], adopted in 1976, advocates extending copyright protection to works of folklore without requiring fixation and with an unlimited term of protection.

'''Trademark Law'''

Some expressions of folklore might be registered as trademarks. Trademark law protects not only graphic representations, but also words and (in some countries) sounds. An advantage of protection through trademark law is its near indefinite term of protection, and its lack of a novelty requirement; it is sufficient for purposes of protection that the trademark has a "distinctive character." However, at least in some countries, trademark protection, unlike copyright and patent protection, requires that the applicant demonstrate use of the mark in commerce. Many cultural expressions do not have a direct link to commerce and are not used as designations of source to the consuming public. Furthermore, the application of trademark law to TK is complicated, since by registering a mark the community makes public TK that the community may desire to keep secret for religious or other reasons.

'''Collective Trademarks, Certification Marks, and Geographic Indicators'''

Collective trademarks, certification marks, and geographic indicators form a subset of trademark law that could be particularly useful for the protection of TK. Collective trademarks are trademarks that are used by a group of producers rather than one producer. Collective marks are held by an association rather than an individual; in order to be useful for protecting TK, members of indigenous groups would need to form an association for the purpose of marking their cultural expressions.

Certification marks indicate that the producer of a good has met certain standards of quality. (A popular example is the [http://www.goodhousekeeping.com/product-testing/history/welcome-gh-seal Good Housekeeping] certification prominent on household products sold in the United States.) Certification marks could be used to specify which TCEs meet the standards of the indigenous community in which they originated. This, like a collective trademark, would require the formation an official oversight organization to act on behalf of the indigenous community in determining which expressions can bear the certification mark.

Geographic indicators, as the name suggests, are marks that can be placed on products that come from a specific geographic area. Geographic indicators are often used for food products, such as wines, but some indigenous groups have experimented with using geographic indicators as a means of protecting cultural expressions by authenticating products that are sold elsewhere. One example of such a program is the Alaskan [http://www.eed.state.ak.us/aksca/Native.htm Silver Hand Program].

'''''Sui Generis'' Laws'''

As we have seen, where TK does not map onto traditional intellectual property regimes, ''sui generis'' laws may be adopted. ''Sui generis'' legislation is a promising route for advocates of TK protection, as it can provide strong protection while avoiding the hurdles that separate TK from traditional IP subject matter.

===='''Absolute Ownership'''====
One possibility for TK protection is to give absolute ownership of the cultural expression to the indigenous group from which it originated. However, this is relatively unpopular option, as it would impede the spread of knowledge and risk the loss of cultural expressions and information in the event that the group is disbanded or its members are assimilated into the general population.

===='''Negotiation and Mutual Respect'''====
Michael Brown argues that the law should, at most, foster "negotiation and mutual respect" between indigenous cultures and those who seek to employ a culture's traditional expressions. This approach would give indigenous groups much less protection, but would facilitate, he argues, beneficial cultural interchange.

===='''International Human Rights'''====
Other scholars, such as Laurence R. Helfer, approach the issue as one of Human Rights. They advocate granting TK protection that is fair and balanced and not overreaching. Their ambition is to balance the needs of indigenous groups and the benefits of a robust public domain.

In this vein, [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1414900 Duncan M. Matthews] points out that "a human rights approach takes what is often an implicit balance between the rights of inventors and creators and the interests of the wider society within intellectual property paradigms and it makes it far more explicit and exacting.... [T]he rights of the creator are not absolute but conditional on contributing to the common good and welfare of society.... [B]ecause a human rights approach also establishes a different and often more exacting standard for evaluating the appropriateness of granting intellectual property protection, in order for intellectual property to fulfill the conditions necessary to be recognised as a universal human right, intellectual property regimes and the manner they are implemented first and foremost must be consistent with the realisation of the other human rights, particularly those enumerated in the Covenant."

===='''System of Domain Public Payant'''====
The doctrine of domain public payant, advocated by the [http://portal.unesco.org/culture/en/ev.php-URL_ID=31318&URL_DO=DO_TOPIC&URL_SECTION=201.html Tunis Model Law] and discussed at WIPO's 1999 Round Table on IP and TK [http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=1192 (section 3 b of the Round Table minutes)], advocates payment of royalties for works, including TCEs, that are in the public domain because they do not qualify for protection under traditional intellectual property law. This would provide monetary compensation for indigenous communities, but would not be a satisfactory solution for communities whose priority is control over their TCEs rather than remuneration. For more on different versions of domain public payant, see the UNESCO Copyright Bulletin from 1994.

=== Why not protect TK? ===

Some observers think that legal protection for traditional knowledge is highly problematic. Here are some of their arguments:

'''TK does not map onto IP law easily'''. As indicated above, traditional cultural expressions are often not put into a fixed form, are not "original," and do not have a defined author -- three requirements for copyright protection. Furthermore, as indicated above, most expressions of folklore are not used in commerce as a means of identifying their source, and so would not be eligible for trademark protection. Finally, patent law may not be available to protect TK because by definition, TK has been used and passed down through generations, and this type of prior public use may preclude patent protection, as least if it is publicly recorded. Thus, it appears that certain attributes of TK make it a difficult fit with all three of the major types of intellectual property law. Additionally, protection for TK does not fit well with the principal goals underlying the protection of intellectual property law. There is little evidence that protection of TK is necessary to incentivize the creation of cultural expression, as other factors have successfully motivated the creation of these expressions for millennia. Furthermore, the labor-desert theory does not easily fit with TK protection, as those who created the traditional expression are either unidentifiable because the expression was the product of collaboration, or in some cases, long dead. Current members of the culture do not have as strong a claim for protection from a labor-desert perspective.

'''Protection of TK would involve perpetuation of illiberal social hierarchies and oppressive customs within indigenous groups'''. Another argument against providing protection for TK is that doing so may perpetuate inequality and oppression within indigenous groups. When an indigenous group is given the right to control the use of TK, the powerful members of that indigenous group may benefit at the expense of the group's minorities. Paul Kuruk argues that protection of TK may further the oppression of women and subordinated social and economic groups within an indigenous culture.

'''Protection of TK may deprive the world community of valuable knowledge'''. Some might argue that principles of liberal democracy dictate that knowledge should be freely shared rather than restricted to certain people or groups. Protection of TK might deprive outsiders of a chance to benefit from the traditions, medicinal or otherwise, of an indigenous culture. When advancing this argument, however, one should keep in mind that principles of liberal democracy, while widely accepted in the Western world, are not necessarily an agreed-upon starting point for this debate.

'''Increase awareness rather than changing the law'''. Some organizations have advocated protection of TK through nongovernmental organizations and projects rather than through legislation. For example, the Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage has compiled a [http://www.unesco.org/culture/ich/index.php?pg=00011#list List of Intangible Heritage in Need of Urgent Safeguarding((.link_green))]. UNESCO lists projects for safeguarding intangible cultural heritage in African countries [http://www.unesco.org/culture/ich/index.php?pg=00176 here]. Finally, groups of academics and activists have created community standards for those, such as anthropologists, whose work impacts indigenous cultures and may involve sensitive issues of disclosure of TK.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

==[[Image:casestudy.png|50px|]] Back to the case study ==

Nadia should make Angela aware of the various types of national intellectual property laws that could apply to this situation. For example, in their country traditional dances might be protected under copyright or ''sui generis'' statutes. However, those laws would only apply within their country, not to the distribution of the Madonna video in other countries. Nadia should also make Angela aware of regional organizations of which their country may be a member. Finally, Nadia could help equip Angela to advocate for protection of her community's traditional cultural expressions by making her aware of the policy recommendations and reports of international organizations, such as WIPO, and the relevant committees that may be proposing draft legislation on traditional knowledge in the near future.

</div>

==[[image:resource.png|50px|]] Additional resources ==

=== '''In General''' ===

:Silke Von Lewinski Ed., Indigenous Heritage and Intellectual Property (2d. 2008).

:[http://www.wipo.int/tk/en/folklore/creative_heritage/ WIPO's Database] contains existing codes, guides, policies, protocols and standard agreements relating to the recording, digitization and dissemination of intangible cultural heritage, with an emphasis on intellectual property issues.

:[http://www.williams.edu/AnthSoc/native/index.htm Who Owns Native Culture by Michael F. Brown((.link_green))] is a good resource for understanding current debates about the legal status of indigenous art, music, folklore, biological knowledge and sacred sites.

:[http://www.iprsonline.org/resources/tk.htm#2006 Intellectual Property Rights Online((.link_green))] is a compendium articles about Traditional Knowledge and Cultural Expressions

:[http://www.aca2k.org/index.php?option=com_content&view=article&id=174&Itemid=60&lang=en The African Copyright & Access to Knowledge Project (ACA2K)((.link_red))] probes the relationship between national copyright environments and access to knowledge in African countries.

:[http://www.wipo.int/tk/en/studies/cultural/expressions/preface/index.html National Experiences with the Protection of Traditional Cultural Expressions/Expressions of Folklore: Preface((.link_green))]

:[http://www.wipo.int/tk/en/folklore/ WIPO's resources on Traditional Cultural Expressions (Folklore)((.link_green))]

:[http://www.wipo.int/tk/en/folklore/culturalheritage/index.html Creative Heritage Project: Strategic Management of IP Rights and Interests((.link_green))] lists resources for developing best practices and surveys existing practices, protocols and policies.

:[http://www.caslon.com.au/ipguide14.htm Resources on Indigenous Cultures and Cultural Property] is a searchable database of codes, guides, policies, protocols and agreements relating to IP and the digitization of ICH. It also includes short case studies presenting informal summaries of best practices, multimedia materials, articles, laws and other resources.

:[http://docs.google.com/viewer?a=v&q=cache:YpXBL2B8YW4J:www.iipi.org/speeches/newyork011404.pdf+what+are+sui+generis+laws+WIPO&hl=en&gl=us&sig=AHIEtbT-vKUx386Lbgxl_JtZO798bxHrrw Is a Sui Generis System Necessary?] reviews traditional IP laws and outlines potential problems with sui generis systems.

:[http://www.wipo.int/tk/en/laws/tk.html WIPO] list of legislative texts on the protection of TK.

:[http://www.wipo.int/tk/en//studies/cultural/minding-culture/studies WIPO case studies of appropriated traditional cultural expressions((.link_green))]

=== '''Examples of Nation Specific Rules Governing Traditional Knowledge''' ===

: [http://www.wcl.american.edu/pijip/go/news/professor-peter-jaszi-authors-report-on-protection-of-the-traditional-arts-in-indonesia Peter Jaszi, "Traditional Culture: A Step Forward for Protection in Indonesia" (2009)((.link_green))]

: Lauryn Grant, "The Protection of Traditional or Indigenous Knowledge," SJ049 ALI-ABA 469 (2004).

:Paul Kuruk, "Goading a Reluctant Dinosaur: Mutual Recognition Agreements as a Policy Response to the Misappropriation of Foreign Traditional Knowledge in the United States," 34 Pepp. L. Rev. 629 (2007).

: Paul Kuruk , "The Role of Customary Law Under ''Sui Generis'' Frameworks of Intellectual Property Rights in Traditional and Indigenous Knowledge," 17 Ind. Int'l & Comp. L. Rev. 67 (2007).

:Paul Kuruk, "Protecting Folklore Under Modern Intellectual Property Regimes: A Reappraisal of the Tensions Between Individual and Communal Rights in Africa and the United States," 48 Am. U. L. Rev. 769 (1999).

:Stephen R. Munzer, Kal Raustiala, "The Uneasy Case for Intellectual Property Rights in Traditional Knowledge," 27 Cardozo Arts & Ent. L.J. 37 (2009).

:[http://en.wikipedia.org/wiki/Native_American_mascot_controversy Wikipedia site] on the United State's Native American Mascot Controversy.

=== '''Examples of Regional Codes Governing Traditional Knowledge''' ===

:Adebambo Adewopo, "The Global Intellectual Property System and Sub-Sahara Africa: A Prognostic Reflection," 33 U. Tol. L. Rev. 749 (2002).

:[http://www.oapi.wipo.net/en/OAPI/index.htm African Intellectual Property Organization (OAPI)]

:[http://www.aripo.org/ African Regional Intellectual Property Organization (ARIPO)]

:[http://www.comunidadandina.org/endex.htm Andean Community]

:[http://untreaty.un.org/unts/144078_158780/12/10/5009.pdf Common Market of the South (MERCOSUR)]

:[http://www.forumsec.org/index.cfm Pacific Islands Forum Secretariat]

=== '''International Legal Instruments''' ===
:Laurence R. Helfer, "Toward a Human Rights Framework for Intellectual Property," 40 U.C. Davis Law Review 971 (2007).

:[http://www.wipo.int/export/sites/www/tk/en/igc/ngo/ciel_gap.pdf A critique of WIPO's Draft Principles from a coalition of indigenous groups((.link_red))]

=== '''Policy Arguments''' ===
:Megan Carpenter, Intellectual Property Law and Indigenous Peoples: "Adapting Copyright Law to the Needs of a Global Community," 7 Yale Hum. Rts. & Dev. L.J. 51 (2004).

:Patty Gerstenblith, "Identity and Cultural Property: The Protection of Cultural Property in the United States," 75 B. U. L. REV. 559, 570 (1995).

:Lorie Graham and Stephen McJohn, "Indigenous Peoples and Intellectual Property," 19 WASH. U. J.L. & POL’Y 313 (2005).

:Kristen A. Carpenter, "Real Property and Peoplehood," 27 Stan. Envtl. L.J. 313, 345-51, 355-57 (2008).

:Paul Kuruk, "Promoting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights in Africa and the US," 48 Am. U. L. Rev. 769 (1999).

:Anupam Chander & Madhavi Sunder, "The Romance of the Public Domain," 92 California Law Review 1331 (2004).

:Kristen A. Carpenter, Sonia Katyal, and Angela Riley, "In Defense of Property," 118 Yale L.J. 1022 (2009).

== [[image:question.png|50px|]] Assignment and discussion questions ==

'''[[image:assignment.png|50px|]]Assignment'''

Answer one of the following questions:

1. Should intellectual property protection of any sort be granted to traditional knowledge?

2. Assuming some sort of intellectual property protection for traditional knowledge is appropriate, which of the many legal systems discussed in this module is the best?

'''[[image:discussion.png|50px]]Discussion Question(s)'''

Select one of the answers that your colleagues provided to the Assignment questions, and comment on it. Explain why you agree or disagree.

== Contributors ==

This module was created by [[Contributors#cox|Emily Cox]], [[Contributors#Abaker|Adrienne Baker]], [[Contributors#arothstein|Ariel Rosthstein]], and [[Contributors#weiler|Miriam Weiler]]. It was then edited by [[Contributors#fisher|William Fisher]].

{{NavFooter}}

Module 8: Traditional Knowledge

2011-05-24T13:59:20Z

Thackett:

==[[Image:key.png|50px|]] Learning objective ==

One of the most complex recent extensions of copyright law involves traditional knowledge. This module first describes the intricate and rapidly changing set of legal rules pertaining to traditional knowledge, and then explores the fierce continuing debate concerning the appropriate scope of protection for this novel topic.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

== [[Image:casestudy.png|50px|]]Case Study ==

Angela is a member of an indigenous community that has a unique tradition of dance. Performances of these dances attract members of other indigenous communities and tourists. Angela calls Nadia when she sees elements of one of the dances in a recently released music video by the American singer, Madonna. Anglea asks whether she has any legal recourse either to stop the use of the dance or to obtain compensation for herself or for her community.

</div>

==[[Image:lesson.png|50px|]] Lesson ==

=== What Is Traditional Knowledge? ===

Though difficult to define, '''traditional knowledge (TK)''' is generally understood to encompass four types of creative works: '''verbal expressions''' (stories, epics, legends, folk tales, poetry, riddles, etc.), '''musical expressions''' (folk songs and instrumental music), '''expressions by action''' (dances, plays, ceremonies, rituals and other performances) and '''tangible expressions''' that must be fixed on a permanent material (drawings, designs, paintings (including body-paintings), carvings, sculptures, pottery, mosaics, jewelry, basket work, textiles, carpets, costumes, musical instruments, etc.) More detailed definitions can be found in the [http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_7/wipo_grtkf_ic_7_3.pdf World Intellectual Property Organization (WIPO)] and [http://portal.unesco.org/culture/en/ev.php-URL_ID=34325&URL_DO=DO_TOPIC&URL_SECTION=201.html United Nations Educational, Scientific and Cultural Organization (UNESCO)] Model Provisions. TK is used interchangeably with the term '''traditional cultural expressions (TCEs)'''; both refer to music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives. TCEs are integral to the cultural and social identities of indigenous and local communities. They embody knowledge and skills, and they transmit core values and beliefs.

=== What is the Debate About? ===

Several combined forces have recently led to commercialization of TCEs on a global scale without due respect being given to the cultural or economic interests of the communities from which they originate. The Internet provides pervasive access to TCEs. The demand of western consumers for what is sometimes (disrespectfully) called "primitive art" has increased. Finally, tourism in developing countries has exposed more potential consumers to manifestations of folklore that can be found there. As a result, indigenous groups are seeking protection for their TCEs and their responses have affected legislation at national, regional and international levels.

=== What types of Traditional Knowledge are Most Frequently Used? ===

Exploitation of TK occurs in different forms. Examples include the unauthorized production of indigenous craft objects in the [http://www.wipo.int/export/sites/www/tk/en/studies/cultural/minding-culture/studies/carpetscase-main.pdf souvenir market], the unauthorized use of indigenous imagery on [http://www.wipo.int/tk/en//studies/cultural/minding-culture/studies/rockart.pdf clothing], [http://cita.chattanooga.org/chml.html food products], or [http://news.bbc.co.uk/2/hi/asia-pacific/1627209.stm toys], the unauthorized use of indigenous names or phrases as [http://www.wipo.int/export/sites/www/tk/en/studies/cultural/minding-culture/studies/trademarks.pdf trademarks], the unauthorized incorporation of traditional dance into commercial [http://www.villagevoice.com/2004-04-13/news/rap-rage-redvolution/ performances], and the unauthorized use of traditional music in commercial [http://en.wikipedia.org/wiki/Taiwanese_aborigines musical productions].

=== What Kind of Legal Liability Governs? ===

What kinds of legal rules (if any) should govern use of traditional knowledge by people who are not members of communities from which the TK originates? This issue is being addressed on national, regional and international levels. TK might be protected through conventional IP law -- for example, through the use of Copyright law, Patent law, Geographical Indicators, or Certification Trademarks. However, many regions and countries have found it difficult to fit TK into traditional IP protection schemes. As a result, some have adopted ''sui generis'' laws that apply specifically to TK. Examples of these different approaches are discussed below.

== How Individual Nations deal with Traditional Knowledge ==

==='''Countries Whose Traditional IP Laws Do Not Cover Traditional Knowledge'''===

Several nations have copyright laws that expressly exclude folklore from the list of works eligible for copyright protection. These include: '''Armenia, Azerbaijan, Belarus, Bulgaria, Estonia, Greece, Hungary, Kazakhstan, Kyrgyzstan, Lebanon, Lithuania, Moldova, Russia, Slovenia, The Ukraine, Uzbekistan''' and '''Yemen'''. These countries tend to classify traditional knowledge as within the "public domain" and thus do not restrict use of or access to TK. For instance, [http://www.ohr.int/ohr-dept/legal/oth-legist/doc/BH-LAW-ON-COPYRIGHT-AND-RELATED-RIGHTS.doc Article 9] of the 2002 Copyright Act of '''Bosnia and Herzegovina''' states that "the use of folk literature and art creations for the purpose of a literary, artistic or scientific arrangement shall be free."

=== '''Countries Whose Traditional IP Laws Cover Traditional Knowledge'''===

==== ''' Protection Despite No Explicit Reference to TCE'''====

The traditional IP statutes in some nations contain no explicit references to folklore, but TCEs may still be protected in those nations under copyright law, other traditional intellectual property doctrines, or through special statutes. For example, most countries in Europe have copyright legislation that may be used to cover traditional knowledge, but do not have any provisions explicitly mentioning TCEs. These include: '''Belgium''', '''Cyprus''', '''Denmark''', '''Finland''', '''France''', '''Germany''', '''Iceland''', '''Italy''', '''Latvia''', '''Luxembourg''', '''Norway''', '''Poland''', '''Portugal''', '''San Marino''', '''Spain''', '''Sweden''', and '''Switzerland'''. Several other "major industrialized countries" lack explicit TCE references as well. These include: '''Australia''', '''Canada''', '''Japan''', and the '''United States'''. Additionally, several countries with recently-enacted copyright legislation have not expressly included TCEs within its scope. Included in this group are several Asian countries (such as '''India''', '''Malaysia''', '''Philippines''', and '''Thailand''') and several Caribbean and South American countries (such as '''Barbados''', '''El Salvador''', '''Saint Vincent and the Grenadines''', '''Trinidad and Tobago''', and '''Venezuela'''). Silence in these statutes, however, does not mean that traditional knowledge is unprotected. Rather, in these countries TCEs are protected on the basis of traditional IP, customary, regional or international laws or through ''sui generis'' legislation.

In '''Australia''', TCEs are protected through traditional copyright law. For example, in [http://www.austlii.edu.au/au/journals/AILR/1996/20.html ''Milpurrurru v. Indofurn Ply Ltd.''((.link_red))], aboriginal Australian artists sued to prevent the importation by a Perth-based company of carpets manufactured in Vietnam, upon which were reproduced the designs of several prominent aboriginal artists without their permission. The designs had been copied from a portfolio of artworks produced by the Australian National Gallery. The federal court awarded the aboriginal artists substantial damages for copyright infringement and granted an injunction against any further infringement. The court pointed out that the unauthorized use of the artwork involved the pirating of cultural heritage and that such behavior could have far reaching effects on the Australian cultural environment. It was deemed especially offensive that the images had been used on a medium (carpet) that was designed to be walked upon.

Other nations have begun using trademark law to protect TCEs, even when TCEs are not mentioned in national statutes. For example, in '''Canada''', '''New Zealand''' and the '''United States''', as well as '''Australia''', indigenous people have sometimes relied (with varying degrees of success) upon trademark law or its equivalent to protect tribal names and other designs and motifs against unauthorized use by others. Considerable efforts have also been made to protect sacred and culturally significant symbols as well as collective and certification marks under traditional trademark law. For instance, '''Australia''' provides for design registration, which allows for the registration of features of shape, configuration, pattern or ornamentation applicable to an article. This system protects the visual form for 16 years, provided that it is new and original and is not based on a pre-existing design. Still, because of the originality requirement, this system has not yet been effective for protecting folklore. More effective is the system used in '''New Zealand'''. There, the recently adopted [http://www.legislation.govt.nz/act/public/2002/0049/latest/DLM164240.html?search=ts_act_Trade+Marks+Act_resel&sr=1 Trade Marks Act of 2002], prevents the registration of trademarks based on Maori text or imagery where the use or registration of such marks would be offensive to the Maori. The Commissioner of Trade Marks has set up a Maori Advisory Committee to advise on whether the proposed registration or use of a mark is likely to be offensive.

Although the '''United States''' has not acted to provide general protection for indigenous peoples' traditional knowledge, it has sometimes adopted narrow statutes in response to Native Americans' attempts to regain self-governance and to control the use of their traditional knowledge by non-community members. Efforts of this sort include:

* the [http://www.nps.gov/history/local-law/anti1906.htm Antiquities Act of 1906] (16 U.S.C. §§ 431-33 (2000)), giving the President power to set aside as national monuments certain historic landmarks, structures and other objects of historic interest,
* the [http://www.nps.gov/history/local-law/hsact35.htm Historic Sites, Buildings and Antiquities Act of 1935] (16 U.S.C. §§ 461-67), empowering the National Park Service to restore, reconstruct, and maintain sites and objects of historic interest,
* the [http://www.nps.gov/history/local-law/nhpa1966.htm National Historic Preservation Act of 1966] (16 U.S.C. § 470), providing for the maintenance of a National Register of Historic Places and requiring the Secretary of the Interior to establish a program to help Native American tribes to preserve their properties, taking into account tribal values,
* the [http://www.doi.gov/iacb/act.html Native American Arts and Crafts Act] (25 U.S.C. § 305 (2000)), intended to assure the authenticity of Native American artifacts, and
* the [http://www.nps.gov/nagpra/MANDATES/25USC3001etseq.htm Native American Graves Protection and Repatriation Act] (“NAGPRA”)( 25 U.S.C. § 3001(1)-(13) (2000)), which provided that the ownership or control of Native American cultural items excavated or discovered on federal or tribal lands remained with lineal descendants, Native American tribes, or Hawaiian Organizations.

==== ''' Protection Using Explicit Reference to TCEs'''====

Many countries now explicitly refer to folklore in their copyright legislation. Such references take various forms.

Some countries have sections, chapters, or special parts of copyright law that are entirely devoted to folklore. Countries within this group include '''Algeria, Bolivia, Brazil, Burkina Faso, Burundi, Chile, Congo, Ghana, Kenya, Mongolia, Morocco, Namibia, Nicaragua, Niger, Nigeria, Papua New Guinea, Paraguay, Rwanda, Seychelles, Togo, Tanzania, Tunisia,''' and '''Zimbabwe'''.

In the '''Congo''', for example, folklore is considered party of the country's heritage, and Congolese copyright law protects folklore without a time limitation. A "Body of Authors" society is responsible for collecting royalties, representing authors' interests, and overseeing the use of folklore. Permission must be sought from the society before any public performance, reproduction, or adaptation of folklore for commercial purposes. This includes the import or distribution of copies of works of national folklore made abroad. Public agencies are exempted from the obligation to obtain prior authorization to use folklore for non-profit activities, though they still must notify the society before use.

In '''Ghana''', the recently adopted [http://www.wipo.int/clea/en/text_pdf.jsp?lang=EN&id=1789. Copyright Act of 2005] significantly changed the way traditional knowledge is protected. In the Act, copyright protection extends to literary works, artistic works, musical works, sound recordings, broadcasts, cinematographic works, choreographic works, derivative works, and program-carrying broadcast signals. To be eligible for copyright, the work must be original, in writing (or otherwise reduced to material form), and created by a citizen or resident of Ghana. The work must also have been first published in Ghana, or, if first published outside Ghana, published in Ghana within thirty days of its original publication. A work created by an individual is protected for the life of that individual plus fifty years; a work created by a corporation is protected for fifty years from the date on which the work was first made public. In Ghana, an author has exclusive rights to reproduce the work (with the exception of private use, quotations in other works, and use in pedagogy, which are permitted). It is an infringement of the copyright to reproduce, sell or exhibit in public for commercial purposes any work without authorization, or to use the work in a manner that adversely affects the reputation of the author. Both civil and criminal penalties may apply. Article 59 of the Act establishes a National Folklore Board, which governs the administration, preservation, registration and promotion of expressions of folklore. The Board may authorize the use of folklore and may determine a fee to be paid. The Act provides that the copyrights of authors of folklore vest in the government as if the government were the creator of the works. In Ghana (as in the Central African Republic and Congo), funds from fees or other money accruing from the use of folklore are to be used for social welfare benefits.

'''Namibia''' grants indigenous communities indefinite exclusive rights to control expressions of folklore and their adaptations, translations, and transformations. These exclusive rights include the right to publicize, make a reproduction, or distribute copies of an expression of folklore; communicate an expression of folklore to the public by performance, broadcasting, distribution by cable or other means; include an expression of folklore in a cinematographic film or a television broadcast; cause the folklore expression, or a television program or other program including the expression, to be transmitted in a diffusion service (unless such service transmits a lawful broadcast, including the expression, and is operated by the original broadcaster); make adaptations, translations and other transformation of the expression ([http://www.wipo.int/export/sites/www/tk/en/consultations/questionnaires/ic-2-7/namibia.pdf Article 60]). [http://www.wipo.int/export/sites/www/tk/en/consultations/questionnaires/ic-2-7/namibia.pdf Article 61], however, allows a secondary user to use expressions of folklore for personal or private use, criticism or review, teaching or scientific research, and incidental use. Article 61 also allows the use of the original expression if the use is "compatible with fair practice," such as for creating an illustration or borrowing the expression to create an original work.

Likewise, '''Nigerian''' [http://www.nigeria-law.org/CopyrightAct.htm Copyright Law] protects expressions of folklore "against reproduction, communication to the public by performance, broadcasting, [or] distribution by cable." In addition, it forbids adaptations, translations, and other transformations of such folklore, when made either for commercial purposes or outside their traditional customary context. The right to authorize any of these acts lies with the Nigerian Copyright Council. However, Nigerian folklore may be used without authorization for private, educational, or illustrative purposes. The law requires identification of the source of the folklore by reference to the community or place from which the folklore is derived. Violations of the law subject the user to liability in damages, injunctions, and other remedies the court deems appropriate. Nigeria also protects traditional knowledge through patents and trademarks. To be patentable, an invention must be new, result from inventive activity, and be capable of industrial application. The patent right is vested in the inventor, and the patent is valid for 20 years after the filing date. Additionally, Nigerian legislation protects registered trademarks. Registration is valid for seven years and then can be renewed; registration is limited to marks that are distinctive.

In '''Rwanda''', [http://www.amategeko.net/display_rubrique.php?ActDo=ShowArt&Information_ID=874&Parent_ID=3070032&type=public&Langue_ID=Fr&rubID=3070056#3070056 Art. 3 of the Copyright Law (1983)] provides generous protection to folklore. Included in its coverage are traditions and literary productions (tales, legends, myths, proverbs, accounts, and poems), artistic works (dances and spectacles of any kind, musical works of any kind, styles and works of decorative art, and architectural styles), religious works (ritual rites, objects, clothing, and places of worships), scientific knowledge (practices and products of medicine and pharmacology, theoretical and practical fields of the natural science and anthropology), and technological knowledge.

The Copyright Law of '''Zimbabwe''' protects performers' rights to record, broadcast and distribute copies of their performances ([http://www.unesco.org/culture/pdf/anti-piracy/Zimbabwe/zb_copyright_2000_en Section 68]). In addition, it extends protection to a "work of folklore," which it defines as a literary, musical or artistic work, whether or not it is recorded, of which: (a) no person can claim to be the author; and (b) the form or content is embodied in the traditions peculiar to one or more communities in Zimbabwe; and includes: (i) folk tales, folk poetry and traditional riddles; (ii) folk songs and instrumental folk music; (iii) folk dances, plays and artistic forms of ritual; and (iv) productions of folk art, in particular drawings, paintings, sculptures, pottery, woodwork, metalwork, jewelery, baskets and costumes ([http://www.unesco.org/culture/pdf/anti-piracy/Zimbabwe/zb_copyright_2000_en Section 80]).

The copyright laws in several other countries shield traditional knowledge by including folklore in the list of literary and artistic works eligible for regular copyright protection. Countries adopting this approach include '''Angola, Benin, Cameroon, Djibouti, Gabon, Guinea, Ivory Coast, Lesotho, Madagascar, Mali, Mozambique, Oman, Republic of Central Africa, Senegal, Togo, Uganda, and Zaire'''.

For instance, '''Cameroonian''' law extends copyright protection to [http://www.wipo.int/clea/en/text_html.jsp?lang=en&id=836 "works derived from folklore."] Users must seek permission from the National Copyright Corporation before any commercial exploitation of folklore may occur. Agents authorized by the Corporation regulate the use of folklore in Cameroon, while the Corporation collects royalties fixed by agreement between the parties and brings infringement actions against unlawful users of protected works.

'''Lesotho''''s [http://www.copyright-watch.org/sites/default/files/LesothoCopyrightOrder1989.pdf Copyright Order of 1989] defines folklore as cultural productions with "characteristic elements of the traditional artistic heritage developed and maintained over generations by a community or by individuals reflecting the traditional artistic expectations of their community." Works inspired by expressions of folklore are protected as original works (Article 4(c)).

In '''Mali''' all persons (except public entities) seeking to use folklore for profit must obtain prior authorization from the Minister of Arts and Culture who may impose a fee for such use. The law prohibits the assignment or licensing of "works derived from folklore" without the approval of the Minister. The law also places in the public domain and charges a user fee for all "works whose authors are unknown, including the songs, legends, dances, and other manifestations of the common cultural heritage."

'''Senegal''' includes folklore in the list of works eligible for copyright protection. Article 1 of the Senegalese Copyright Act provides special protection for folklore, and Article 9 states that any "direct or indirect" fixation of such material for "profit-making purposes" is subject to prior authorization by the Copyright Office of Senegal. All folklore uses require prior authorization from the Office, which charges users a fee whose amount depends on the nature of the use and prior arrangements. Senegal criminalizes the importation of works into Senegal that violate its copyright law.

''' Uganda's''' [http://www.i-network.or.ug/index2.php?option=com_docman&task=doc_view&gid=93&Itemid=130 Copyright and Neighbouring Rights Act, 2006] grants copyright protection to "work in the field of literature, traditional folklore and knowledge, science and art" (Article 5). It grants performers -- persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore -- the right to control the fixation, transmission and reproduction of their performances (Articles 2 and 22).

A final group of countries protect TCEs by granting rights to the State for its protection. Included in this group are '''Egypt, Jordan, Malawi, Saudi Arabia, Sudan, ''' and '''Qatar'''.

For instance, in '''Sudan''', [http://www.wipo.int/clea/en/text_html.jsp?lang=en&id=3605#P116_9052 Article 7] of the Copyright Act notes that "National folklore of the Sudanese community is deemed to be the property of the State" and that the "State represented by the Ministry of Culture and Information, shall endeavor to protect works of folklore by all legal ways and means, and shall exercise the rights of an author in cases of mutilation, transformation and commercial exploitation." Similarly, in '''Egypt''', [http://www.ecipit.org.eg/Arabic/pdf/IPR%20law%20no%2082%20year%202002%20English.pdf Article 142] of the Law on the Protection of Intellectual Property Rights No. 82 (3 June 2002) defines "national folklore" as part of the "public domain of the people." The act states, "The competent ministry shall exercise the author’s economic and moral rights and shall protect and support such folklore." In '''Saudi Arabia''', [http://www.boe.gov.sa/English/En%20Word/2%20Media,%20Culture%20and%20Publishing/Copyright%20Law.doc Article 7] of the Copyright Law of 2003 states that "[f]olklore shall be the property of the state, and the Ministry shall exercise the copyright pertaining thereto," and that "[t]he import or distribution of copies of folklore works, copies of their translations or others which are produced outside the Kingdom without a license from the Ministry shall be prohibited." Likewise, in '''Qatar''', Article 32 of the Copyright Act of 2002 provides that "[n]ational folklore shall be the public property of the State" and that "the State...shall protect national folklore by all legal means, and shall act as the author of folklore works in facing any deformation, modification or commercial exploitation." In '''Jordan''', [http://www.agip.com/country_service.aspx?country_key=50&service_key=C&SubService_Order=3&lang=en Article 7(c)(3)] of the Copyright Law No. 22 of 1992 excludes from copyright protection "works which reverted to the public domain. For the purpose of this article folklore shall be considered in the public domain with the minister exercising the copyrights of these works against distortion, misrepresentation or damage to cultural interests" unless "the collections of these works were distinguished by a personal effort involving innovation or arrangement."

=== '''Countries with ''Sui Generis'' Traditional Knowledge Laws'''===

The countries discussed in the previous section include traditional knowledge in their regular copyright laws, but typically treat TK somewhat differently from other types of copyrighted works. The members of the final group of countries go one step further. Instead of classifying TK as a (special) type of copyrighted work, these countries have adopted so-called ''sui generis'' laws that create an entirely different sort of legal protection for TK. (As we will see, the distinction between customized copyright laws and sui generis laws is blurry, but is nevertheless helpful in differentiating the types of approaches to this issue.)

Two early examples of national ''sui generis'' laws grew out of countries' efforts to protect the traditional knowledge of indigenous groups concerning the medicinal value of plants. '''Ecuador’s''' [http://www.wipo.int/clea/en/text_html.jsp?lang=en&id=1205 Law on Intellectual Property of 1998] protects the country’s biological and genetic heritage and conditions the grant of product or process patents relating to that heritage on the acquisition of rights from the relevant traditional owners. Similarly, in 1997, the '''Philippine Congress''' passed the [http://www.grain.org/brl_files/philippines-ipra-1999-en.pdf Indigenous Peoples Rights Act] “to recognize and promote all the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs), including their rights to “preserve and develop their cultures, traditions, and institutions” in cultural property. The Act affirms the right of ICCs/IPs to the full ownership and control of their cultural and intellectual rights. Thus, access to biological and genetic resources is permitted only after obtaining the free and informed consent of such communities. In addition, the Act guarantees ICCs/IPs the right to practice and revitalize their cultural traditions, including “to practice and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect and have access to their religious and cultural sites; the right to the use and control of ceremonial objects; and, the right to the repatriation of human remains.”

'''Panama's''' [http://www.ichrdd.ca/english/commdoc/publications/indigenous/aresioPanamaLawEng.html Act No. 20] launched the ''sui generis'' protection movement specifically for TCEs in June, 2000. The Act subjects “the rights of use and commercialization of the arts, crafts and other cultural expressions based on the tradition of the indigenous community” to the regulation of each indigenous community approved and registered in the DIGERPI or in the National Copyright Office of the Ministry of Education. It defines “indigenous collective rights” as “indigenous intellectual and cultural property rights law relating to art, music, literature...and other subject matter and manifestations that have no known author or owner and no date of origin and constitute the heritage of an entire indigenous people.”

Likewise, '''Peru's''' 2002 [http://www.wipo.int/export/sites/www/tk/en/laws/pdf/peru_law_27811.pdf ''sui generis'' TK Law] aims to promote respect for and protect the "collective knowledge of indigenous peoples; to promote the fair and equitable distribution of the benefits derived from the use of that collective knowledge; to promote the use of the knowledge for the benefit of the indigenous peoples and mankind in general; to ensure that the use of the knowledge takes place with the prior informed consent of the indigenous peoples; to promote the strengthening and development of the potential of the indigenous peoples...and to avoid situations where the patents are granted for inventions made or developed on the basis of collective knowledge of the indigenous peoples of Peru without any account being taken of that knowledge as prior art in the examination of the novelty and inventiveness of the said inventions."

In 2003, '''Guatemala''' designed and implemented a special ''sui generis'' set of intellectual property rights for indigenous folklore, backed by both civil and criminal penalties. Guatemala's "Cultural Heritage Protection Law" also enables the attorney general to protect any registered indigenous cultural good (including oral or musical traditions) and provides perpetual intellectual property protection for any registered item. The Guatemalan system is reciprocal; it recognizes the registered folklore of any other country that recognizes the Guatemalan registry.

It is likely that many other countries will soon adopt ''sui generis'' TK laws. One indication of the trend in this direction is that many national members of WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore have called for the establishment of ''sui generis'' systems in their written submissions to the Committee. Among such countries are '''Brazil, Colombia, Ethiopia, Egypt, Indonesia, Iran, Morocco, the Russian Federation, Thailand''', and '''Venezuela'''.

== Regional Codes Governing Traditional Knowledge ==

Another way in which some countries attempt to protect traditional cultural expressions (TCEs) is by pooling their resources and creating intergovernmental organizations that monitor and seek to control the use of TCEs in foreign territories. Advantages of this approach include harmonizing local laws, centralizing administration, and avoiding duplication of costly efforts across multiple countries. While the objectives of regional laws may be sound, it is debatable whether the regional organizations provide effective forms of enforcement. The major examples of this strategy are described below.

=== '''[http://www.aripo.org/ African Regional Intellectual Property Organization (ARIPO)]''' ===
The African Regional Intellectual Property Organization (ARIPO) (originally named the African Regional Industrial Property Organization) was formed in 1976 and includes many of the English-speaking African countries: '''Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia,''' and '''Zimbabwe'''. ARIPO’s overall [http://www.aripo.org/index.php?option=com_content&view=article&id=19&Itemid=53 objectives] are to harmonize intellectual property regimes, foster cooperation, and provide coordinated administrative training across member states.

ARIPO has adopted two central protocols: the [http://www.aripo.org/index.php?option=com_docman&task=doc_view&gid=4&tmpl=component&format=raw&Itemid=11 Harare Protocol], pertaining to patents and industrial designs, and the [http://www.aripo.org/index.php?option=com_docman&task=doc_view&gid=5&tmpl=component&format=raw&Itemid=11 Banjul Protocol], relating to trademarks and service marks. Surprisingly, neither protocol specifically mentions protection of traditional knowledge or TCEs. Some have criticized the protocols as insensitive to the needs of the member states. However, since the adoption of the protocols, ARIPO has continued to work with the World Intellectual Property Organization (WIPO) to protect indigenous knowledge. Furthermore, ARIPO’s Administrative Council has initiated a study to assess the feasibility of developing a traditional knowledge database. In 2009, ARIPO’s Administrative Council [http://www.aripo.org/index.php?option=com_docman&task=doc_view&gid=57&tmpl=component&format=raw&Itemid=11 suggested] three primary ways to implement the Organization’s mandate on the protection of genetic resources, traditional knowledge, and expressions of folklore: (1) develop ARIPO’s Traditional Knowledge Digital Library, (2) create regional frameworks on access and benefit sharing related to biological resources, and (3) adopt the Draft Protocol and implementing regulations on the protection of traditional knowledge and the expressions of folklore. Progress on one or more of these paths can be expected in the near future.

=== '''[http://www.oapi.wipo.net/en/OAPI/index.htm African Intellectual Property Organization (OAPI)]''' ===
The African Intellectual Property Organization (OAPI) was created by the francophone African countries in 1962. The organization's most important legal instrument is the Bangui Agreement, which was signed in 1977. The following 16 African countries are bound by the Agreement: '''Benin, Burkina Faso, Cameroon, Central African Republic, Congo, Cote d’Ivoire, Guinea, Equitorial Guinea, Gabon, Guinea Bissau, Mali, Mauritania, Niger, Senegal, Chad,''' and '''Togo'''. The [http://www.oapi.wipo.net/doc/en/bangui_agreement.pdf Bangui Agreement] was amended in 1999 so that its formal name is now “the Agreement of 24 February 1999 Revising the Bangui Agreement of 2 March 1977 on the creation of an African Intellectual Property Organization.” Although the 1977 version of the Agreement is no longer effective, comparing the 1977 and 1999 versions helps to identify the strengths and weaknesses of OAPI’s most important agreement.

====''Annex VII in the 1977 Bangui Agreement''====

The most notable difference between the 1977 and the 1999 Agreements is the removal of direct protection of folklore from the copyright section. Annex VII of the 1977 Agreement obliged member states to declare use of folklore to a national agency and to pay fees for such use. The fees collected were directed, in part, to cultural and social purposes. This section was criticized for its vagueness because most people were not sure how broadly to interpret the scope of “use of elements borrowed from folklore” (1977 Agreement, Annex VII, Chapter 1, Article 8, para. 5). Additionally, the older version of the Bangui Agreement imposed a fine for any use “of folklore work or a work that has entered the public domain” without prior declaration to the appropriate national agency (1977 Agreement, Annex VII, Chapter 1, Article 38, para. 2). The older system can be described as one in which folklore automatically belongs to the public domain and folklore users simply pay the public domain for the use to be authorized. Alternatively, this older system can be characterized as one in which folklore is owned and regulated by the state because, as declared in the original Agreement, the state has an indefeasible right with respect to folklore and “folklore is by its origin part of national heritage” (1977 Agreement, Annex VII, Chapter 1, Article 8, para. 1). The tension between these two interpretations ultimately created confusion regarding who owned TCEs. Protection of folklore and cultural heritage was then moved from the copyright section of the 1977 Agreement to the section discussing provisions common to copyright and neighboring rights in the 1999 Agreement. As discussed below, this new placement did not eliminate confusion and ambiguity.

====''Annex VII in the [http://www.oapi.wipo.net/doc/en/bangui_agreement.pdf 1999 Bangui Agreement]''====

The 1999 Bangui Agreement continues earlier attempts to protect folklore and cultural heritage. Under the new system, users of folklore must receive prior authorization. The objectives of the system are to protect (Chapter 2), to safeguard (Chapter 3), and to promote (Chapter 4) cultural heritage. “Cultural heritage” is defined as a composition of “all those material or immaterial human productions that are characteristic of a nation over time and space. Such productions relate to (i) folklore, (ii) sites and monuments; [and] (iii) ensembles” (Article 67, paras. 1-2). The definitions of “folklore” (Article 68) and “monuments” (Article 70) are very detailed. Additionally, the definitions of “sites” and “ensembles” can be found in Articles 69 and 71, respectively.

Prohibited acts are listed in Article 73. They include deformation, export, misappropriation, and unlawful transfer. Article 74 states three main exceptions to these prohibitions: "use for teaching," "use as illustration of the original work of an author on condition that the scope of such use remains compatible with honest practice," and "borrowings for the creation of an original work from one or more authors."

A fee payment scheme similar to the 1977 Agreement still exists in which “the exploitations of expressions of folklore and that of works or productions that have fallen into the public domain . . . shall be subject to the user entering into an undertaking to pay the national collective rights administration body a relevant royalty” (1999 Agreement, Annex VII, Chapter 5, Article 59, para. 1). The fees will be donated, in part, to “welfare and cultural purposes” (1999 Agreement, Annex VII, Chapter 5, Article 59, para. 3).

Some observers contend that the 1999 Agreement completely removed folklore from copyright law and instead provided it with ''sui generis'' protection whereby folklore is regulated and owned by the government. However, others see that folklore can still be protected as a form of copyright as stated in Article 5 of Annex VII. This ambiguity creates confusion as to who owns folklore under the terms of the Agreement. This confusion is even greater than in the 1977 Agreement because there are no longer specific references to the States having an indefeasible right with respect to folklore and cultural heritage.

=== '''[http://en.wikipedia.org/wiki/Mercosur Common Market of the South (MERCOSUR)]''' ===

MERCOSUR is a regional trade agreement created in 1991 by the Treaty of Asuncion between '''Argentina, Brazil, Paraguay,''' and '''Uruguay'''. In 1995, the regional organization adopted an important protocol to protect indigenous heritage: the Protocol for the Harmonization of Intellectual Property Norms in MERCOSUR with respect to Trademarks and Indications of Source or Denominations of Origin. In particular, Article 19 of the Protocol requires Party States to “reciprocally protect their indications of source and dominations of origin.” “Denomination of origin” is defined broadly as “the geographical name of a country, city, region or locality within a Party State's territory, which designates products or services whose qualities or characteristics are exclusively or essentially caused by the geographical environment, including natural and human factors.” Such a broad definition of geographic origin -- which notably includes “human factors” -- encompasses traditional cultural expressions. Similarly, the Protocol attempts to protect traditional knowledge through its definition of “indications of source” by basing the defined term on the location that is “known as a center place for extraction, production or manufacture of a certain product or for the performance of a certain service.” In 1996, MERCOSUR affirmed the importance of cultural rights by creating the Protocol on the Cultural Integration of MERCOSUR. Although traditional knowledge is not specifically mentioned, this protocol focuses on the creation of cultural policies that display historical traditions, common values, and cultural diversity of member countries.

=== '''[http://www.comunidadandina.org/endex.htm Andean Community]'''===

The Andean Community (originally known as the Andean Pact) was created in 1969 with the signing of the Cartagena Agreement. The overall objective of the Community is to enable the member countries to work jointly to “improve their people’s standard of living through integration and economic and social cooperation.” The current member states are '''Bolivia, Columbia, Ecuador,''' and '''Peru;''' '''Mexico''' and '''Panama''' are observer countries. In 2000, the Community enacted [http://www.comunidadandina.org/ingles/normativa/D486e.htm Decision 486], the purpose of which was to improve intellectual property protection and provide “more expeditious and transparent procedures for trademark registration and patent issues.” Although this Decision focuses on biological resources, it also provides for protection of traditional knowledge in the General Provisions. Article 3 states that member countries must “ensure that the protection granted to intellectual property elements shall be accorded while safeguarding and respecting their biological and genetic heritage, together with the traditional knowledge of their indigenous, African American, or local communities. As a result, the granting of patents on inventions that have been developed on the basis of material obtained from that heritage or that knowledge shall be subordinated to the acquisition of that material in accordance with international, Andean Community, and national law. The Member Countries recognize the right and the authority of indigenous, African American, and local communities in respect of their collective knowledge.”

=== '''[http://www.forumsec.org.fj/resources/uploads/attachments/documents/PacificModelLaw,ProtectionofTKandExprssnsofCulture20021.pdf Pacific Regional Framework for the Protection of Traditional Knowledge and Expression of Culture]''' ===

The [http://www.forumsec.org/resources/uploads/attachments/documents/PacificModelLaw,ProtectionofTKandExprssnsofCulture20021.pdf Pacific Regional Framework for the Protection of Traditional Knowledge and Expression of Culture] was created in 2002 but has not yet been implemented. It was drafted by the [http://www.forumsec.org/index.cfm Pacific Islands Forum Secretariat] whose member countries are '''Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Republic of Marshal Islands, Samoa, Solomon Islands, Tonga, Tuvalu,''' and '''Vanuatu'''. Additionally, the following countries have associate membership: '''New Caledonia''' and '''French Polynesia'''. Finally, '''Tokelau, Wallis and Futuna, the Commonwealth, the Asia Development Bank,''' and '''Timor L'este''' all have observer status.

The Forum has developed a [http://www.forumsec.org/resources/uploads/attachments/documents/Traditional%20Knowledge%20Action%20Plan%202009.pdf specific action plan] that details ways that the member countries plan to protect the Region’s traditional knowledge. In particular, the Forum has created a set of [http://www.forumsec.org/resources/uploads/attachments/documents/PacificModelLaw,ProtectionofTKandExprssnsofCulture20021.pdf Model Laws to protect traditional knowledge and the expressions of culture]. The laws are noteworthy because they not only protect TK and TCEs but also employ customary uses as the foundation of the framework.

The Framework’s general approach is to create ''new'' rights in traditional knowledge and expressions of culture, which previously may have been regarded as part of the public domain. People seeking to use TCEs must have prior and informed consent from the traditional owners. The rights the Framework specifies fall into two categories: moral rights and traditional cultural rights. It is crucial to note that neither moral nor traditional cultural rights depend on copyright formalities (e.g., registration requirements). Moral rights include the right of attribution, the right against false attribution, and the right of integrity of indigenous work. As stated in Clause 7(2) of Part I, traditional cultural rights include the right to reproduce, publish, perform, make available online, and create derivative works, among many others. These are said to be both exclusive and inalienable.

Clause 11 is noteworthy because it states that traditional rights exist in addition to (and do not affect) the rights created by other intellectual property law regimes. Clause 7(4) provides that there is no traditional knowledge protection in the following contexts: face-to-face teaching, criticism or review, reporting news or current events, judicial proceedings, and incidental use.

Clause 7 of Part I of the Framework makes clear who owns the protected TCEs. Traditional owners are defined as: “a group, clan, or community of people, or the individual who is recognized by a group, clan, or community of people as the individual, in whom the custody or protection of the traditional knowledge or expressions of culture are entrusted in accordance with customary law and the practices of that group, clan, or community.”

Finally, Clause 37 details the role of the Cultural Authority in protecting TCEs. Those attempting to seek permission to use elements of protected TCEs have two options: (1) apply directly to the Cultural Authority or (2) communicate directly with the traditional owners. One of the Authority’s many roles is to advise the traditional owners. Valid TCE users must prove they have received consent from the traditional owners via an “authorized user agreement.”

This Framework is ambitious and may provide for strong TCE protection once adopted; however, its potential impact is unknown as the laws have not yet been implemented.

== International Legal Instruments ==

The final set of laws pertaining to traditional knowledge consist of international agreements. These agreements have emerged from various international organizations, including the United Nations Education, Scientific and Cultural Organization (UNESCO), the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO) and the International Labor Organization (ILO). The types and strength of the protections they provide for TCEs vary radically; no consistent pattern or theme is discernible. They are discussed below in reverse chronological order.

=== '''[http://www.un.org/esa/socdev/unpfii/en/drip.html United Nations Declaration on the Rights of Indigenous Peoples]''' (2007) ===
The UN has been [http://www.sami.uit.no/girji/n02/en/102daes.html#Anchor-39228 investigating] the protection of minorities and indigenous populations since 1969. On 30 January 2007, the Assembly of the Union adopted a decision (Assembly/AU/ Dec. 141 (VIII)), known as the UN Declaration on the rights of indigenous peoples. 143 countries voted in favor of the Declaration. '''Australia, Canada, New Zealand''' and the '''United States''' voted against it. '''Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa''' and '''Ukraine''' abstained. The Declaration is the most comprehensive statement of the rights of indigenous peoples ever developed, giving prominence to collective rights to a degree unprecedented in international human rights law. The adoption of this instrument is the clearest indication yet that the international community is committing itself to the protection of the individual and collective rights of indigenous peoples. The key provisions follow.
===== Article 8 =====
# Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. States shall provide effective mechanisms for prevention of, and redress for:
Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;
Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;
Any form of forced assimilation or integration;
Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.
===== Article 11 =====
# Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.
# States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.
===== Article 12 =====
# Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.
# States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.
===== Article 25 =====
# Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.
===== Article 27 =====
# States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples' laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.
===== Article 28 =====
# Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
# Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.
===== Article 31 =====
# Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
# In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.
===== Article 34 =====
# Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

=== [http://www.wipo.int/export/sites/www/tk/en/consultations/draft_provisions/pdf/draft-provisions-booklet.pdf WIPO Draft Provisions on Traditional Cultural Expressions/Folklore and Traditional Knowledge] (2006) ===

In 1998, the World Intellectual Property Organization (WIPO) embarked on a fact-finding mission to 28 countries to identify intellectual property-related regulations of traditional knowledge. Following a review of those materials, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) was formed in 2001. Since 2004, it has been [http://www.wipo.int/tk/en/consultations/draft_provisions/draft_provisions.html working] on draft provisions for the enhanced protection of traditional cultural expressions against misappropriation and misuse. Although the provisions are still in draft form, they are meant to serve as points of reference for ongoing policy discussions at the national, regional, and international levels.

The Draft Provisions have the following objectives: to recognize value; to promote respect; to meet the actual needs of communities; to prevent the misappropriation of traditional cultural expressions/expressions of folklore; to empower communities; to support customary practices and community cooperation; to contribute to safeguarding traditional cultures; to encourage community innovation and creativity; to promote intellectual and artistic freedom, research and cultural exchange on equitable terms; to contribute to cultural diversity; to promote community development and legitimate trading activities; to preclude unauthorized IP rights and to enhance certainty, transparency and mutual confidence. The General Guiding Principles and Substantive Principles are available [http://www.wipo.int/export/sites/www/tk/en/consultations/draft_provisions/pdf/draft-provisions-booklet.pdf here((.link_red))].

==='''[http://portal.unesco.org/culture/en/ev.php-URL_ID=33232&URL_DO=DO_TOPIC&URL_SECTION=201.html Convention on the Protection and Promotion of the Diversity of Cultural Expressions]''' (2005) ===
The Convention on the Protection and Promotion of the Diversity of Cultural Expressions builds off the earlier [http://portal.unesco.org/en/ev.php-URL_ID=13179&URL_DO=DO_TOPIC&URL_SECTION=201.html Universal Declaration on Cultural Diversity] of (2001). '''Canada, France, Germany, Greece, Mexico, Monaco, Morocco,''' and '''Senegal''' and Francophone member states of UNESCO strongly supported the Convention. The '''United States''' opposed it. 104 countries have acceded to or ratified the Convention.

The Convention recognizes "the importance of traditional knowledge as a source of intangible and material wealth, and in particular the knowledge systems of indigenous peoples, and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion." It seeks to “to reaffirm the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory” (Article 1(h)). The Convention also seeks to mitigate the dilution of culture that follows from the movement of cultural goods and services across national borders.

The Convention mentions intellectual property rights once, by recognizing "the importance of intellectual property rights in sustaining those involved in cultural creativity." The Convention is ambiguous, however, on how much protection to grant to TCEs. Article 6 lists the types of measures member states may adopt to protect and promote cultural diversity. Subsection 2(g) allows “measures aimed at nurturing and supporting artists and others involved in the creation of cultural expressions” but subsection 2(e) allows for measure that “promote the free exchange and circulation of . . . cultural expressions and cultural activities, goods and services.” Strong support for indigenous groups as creators of TCEs is not required by Article 7, as members states need only “endeavour to recognize the important contribution of artists, others involved in the creative process, cultural communities, and organizations that support their work, and their central role in nurturing the diversity of cultural expressions.”
Professor Laurence R. Helfer has [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891303 noted] that the Convention disregards the protection for TCEs that could be derived from the use of intellectual property law.

=== '''[http://www.unesco.org/culture/ich/index.php?pg=00006 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage] (2003)''' ===
In 2001, [http://www.unesco.org/culture/ich/index.php?pg=00007 UNESCO] began drafting a definition of intangible cultural heritage and formulating provisions for its protection. In 2003, the resulting Convention was adopted and in 2006 it entered into force. [http://www.unesco.org/culture/ich/index.php?pg=00024 121] countries have ratified the Convention. '''Australia, Canada, New Zealand''' and the '''United States''' have not ratified the Convention. '''Argentina, Columbia, Denmark, Indonesia, Saudi Arabia, Seychelles''' and '''the Syrian Arab Republic''' all entered declarations or reservations.

[http://www.unesco.org/culture/ich/index.php?pg=00006 Article 1] lists the purposes of the Convention as "to safeguard the intangible cultural heritage; to ensure respect for the intangible cultural heritage of the communities, groups and individuals concerned; to raise awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof; to provide for international cooperation and assistance." Although the Convention does not directly discuss intellectual property rights, [http://www.unesco.org/culture/ich/index.php?pg=00022 Article 3] notes that nothing in the Convention affects "the rights and obligations of States Parties deriving from any international instrument relating to intellectual property rights ... to which they are parties."

===== Article 11 Role of States Parties =====
Each State Party shall:
# take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory;
# among the safeguarding measures referred to in Article 2, paragraph 3, identify and define the various elements of the intangible cultural heritage present in its territory, with the participation of communities, groups and relevant nongovernmental organizations.

=== Trade-Related Aspects of Intellectual Property Rights (1994) ===
As we saw in Module 2, the 1994 [http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm TRIPS Agreement] created a set of minimum intellectual property standards for all members of the World Trade Organization. Although the Agreement requires developing countries to increase many forms of intellectual property protection, it does not mention folklore or TCEs.

After the passage of TRIPS, the UN Human Rights Commission studied its implications for human rights. In 2000, the Commission, relying on that study, adopted Resolution 2000/7 on Intellectual Property and Human Rights. The Resolution notes that “actual or potential conflicts exist between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights in relation to . . . the reduction of communities’ (especially indigenous communities’) control over their own . . . natural resources and cultural values.” It declares that “the implementation of the TRIPS Agreement does not adequately reflect the fundamental nature and indivisibility of all human rights, including . . . the right to self-determination. There are apparent conflicts between the intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and international human rights law, on the other.” The Sub-Commission urged national governments, intergovernmental organizations, and civil society groups to give human rights primacy over the economic policies and agreements. Since the passage of the 2000/7 Resolution, Human Rights bodies at the UN have investigated the relationship between intellectual property law and human rights, as discussed by Lawrence Helfer in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891303 this article((.link_green))].

=== '''[http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169 ILO Convention 169 on Indigenous and Tribal People]''' (1989) ===
The International Labor Organization, a special agency under the auspices of the UN, was the first international organization to attempt to define indigenous populations and to declare the rights of such populations. ILO Convention No. 169 replaced [http://www.ilo.org/ilolex/cgi-lex/convde.pl?C107 ILO Indigenous and Tribal Populations Convention No. 107] (1957) that had been ratified by six African States. Although no African states have yet [http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169 ratified] ILO Convention 169, the [http://www.ilo.org/indigenous/Resources/Publications/lang--en/docName--WCMS_115929/index.htm ILO and the African Commission on Human and Peoples’ Rights] view this instrument as an inspiration and a reflection of a trend towards the protection of indigenous rights globally and in Africa.

The 169 Convention focuses on indigenous peoples’ rights to control their own institution, economic development, customs and belief systems. It applies to "tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations" and to "peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions." [http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169 Article 1]. The Convention does not mention intellectual property rights, but seeks to protect indignous culture and recognizes the collective ownership that characterizes many indigenous populations.
===== Article 4(1) =====
Special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned.
===== Article 5 =====
# the social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals;
# the integrity of the values, practices and institutions of these peoples shall be respected;
# policies aimed at mitigating the difficulties experienced by these peoples in facing new conditions of life and work shall be adopted, with the participation and co-operation of the peoples affected.
===== Article 13 =====
# In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.

=== '''[http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html Berne Convention for the Protection of Literary and Artistic Works] (1979)''' ===
Although the Berne Convention (discussed at length in Module 2) does not mention traditional knowledge, Article 15(4) can be interpreted to leave to the discretion of each member country how (if at all) to protect TCEs.
===== Article 15(4) =====
# In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.

=== '''[http://www2.ohchr.org/english/law/cescr.htm International Covenant on Economic, Social and Cultural Rights]''' (1966) ===
The International Covenant on Economic, Social and Cultural Rights (ICESCR) establishes a right to the protection of the moral and material interests resulting from any scientific, literary or artistic production. ICESCR has 160 [http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en parties], 69 of which are signatories.
[https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=48+Am.+U.L.+Rev.+769&srctype=smi&srcid=3B15&key=353d9e7da6d89fd06493aaddf1e8606b Read.] In conjunction with the 1948 Universal Declaration of Human Rights, and recognizing the binding nature of the treaty upon its signatories, the ICESCR can be [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891303 interpreted] as guaranteeing intellectual property rights as a human right. In 2005, the Committee on Economic, Social and Cultural Rights (CESCR) [http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/E.C.12.GC.17.En?OpenDocument commented] on Article 15 of the ICESCR (reproduced below), expanding it to protect indigenous groups' expressions of cultural heritage. CESCR calls upon signatories to adopt protective measures that "recognize, register and protect the individual or collective authorship of indigenous peoples under national intellectual property rights regimes and should prevent the unauthorized use of scientific, literary and artistic productions of indigenous peoples by third parties."

===== Article 15=====
# The States Parties to the present Covenant recognize the right of everyone:
## To take part in cultural life;
## To enjoy the benefits of scientific progress and its applications;
## To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
# The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
# The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

==='''[http://www2.ohchr.org/english/law/ccpr.htm International Covenant on Civil and Political Rights]''' (1966)===
The International Covenant on Civil and Political Rights (ICCPR) recognizes the self determination of minority groups and their right to control their culture. The ICCPR has 165 [http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en parties], 72 of which are signatories. Although the ICCPR is silent on most cultural and intellectual property rights issues, [https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=48+Am.+U.L.+Rev.+769&srctype=smi&srcid=3B15&key=353d9e7da6d89fd06493aaddf1e8606b considered] in conjunction with the 1966 International Covenant on Economic, Social and Cultural Rights and the 1948 Universal Declaration of Human Rights, the ICCPR can be viewed as establishing intellectual property rights as human rights.

=====Article 1 =====
# All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

=====Article 27 =====
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

=== '''[http://www.un.org/en/documents/udhr/index.shtml Universal Declaration of Human Rights] (1948)''' ===
The Universal Declaration of Human Rights (UDHR) establishes the right to the protection of moral interests and materials deriving from any scientific, literary or artistic production. The UDHR is not a binding document, but it is a foundational document for the United Nations and for the two 1966 Covenants, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.

Although the UDHR does not address intellectual property rights, [http://www.un.org/en/documents/udhr/index.shtml Article 27] of the UDHR recognizes the "moral and material interests" of authors and inventors and the right of the public “to enjoy the arts and to share in scientific advancement and its benefits.” This article expresses the challenge of balancing private intellectual property rights and a vibrant public domain.

===== Article 17 =====
# Everyone has the right to own property alone as well as in association with others.
# No one shall be arbitrarily deprived of his property.
===== Article 27 =====
# Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
# Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

== Policy Arguments ==

As indicated above, the questions of whether and how to protect traditional knowledge are currently being debated and are highly controversial. At the international level and within many individual countries, strong differences of opinion can be found. Set forth below are summaries of the primary arguments made in this debate.

===Why Protect TK? ===

'''Arguments from Personhood'''. For many indigenous groups, TK encompasses cultural elements that are integral to the group's sense of identity. One can argue that objects and expressions that are fundamental to a person's or group's identity merit protection, and at the extreme, could be considered inalienable. Similarly, some advocates for TK protection have proposed a "cultural stewardship" justification for this protection. For example, Kristen Carpenter, Sonya Katyal and Angela Riley advocate allowing indigenous communities to retain control, if not exclusive access and ownership, of TK because of its importance in shaping the identity of the indigenous group and its culture.

Closely related to arguments from personhood are arguments from moral rights, which we discussed in Module 4. It is argued, just as an individual artist should enjoy a right of attribution and integrity with respect to her creations, so should a community enjoy a right of attribution and integrity with respect to its collective creations.

'''Arguments based on Preservation'''. Another reason to advocate for protection of TK is that unlike many forms of intellectual property, cultural expressions may require protection in order to preserve their value. For example, religious ceremonies and sacred rituals may be valuable to a culture in part because they are not widespread; their rarity is integral to their place in the culture. In order to maintain the value of these traditions, it may be necessary to restrict their use.

'''Arguments based on Reparations'''. A third argument in favor of protection for TK is based upon the idea that many indigenous cultures have been damaged by invasive colonialism practiced by Western countries in the past few centuries. Supporters of this argument believe that protection of TK is a way of providing reparations, symbolic as well as monetary, for the wrongs committed against these indigenous groups.

=== How Should TK be protected? ===

==== Traditional IP Modes of Protection ====

'''Copyright'''

As we have seen, many nations have used copyright law (either alone or in conjunction with ''sui generis'' laws) to protect TK. However, there are many arguments against using standard copyright to protect TK.

#''The fixation requirement.'' Some copyright systems require that a work be fixed in a material form. This is an obstacle in the protection of TCEs, which are not always manifested in tangible expressions.
#''Originality.'' Copyright law requires that a work be "original" in order to merit protection. Since most TK is "traditional" rather than new, this originality requirement will often be difficult to satisfy.
#''Authorship.'' Much cultural expression develops gradually over time, through the contributions of several members of a community. If no single author or group of authors can be identified, it will be difficult for copyright protection to be obtained.
#''The term of protection.'' The term of protection for copyright in most countries is traditionally limited, and not infinite. Many forms of TK are in fact older than the copyright term. As a result, copyright protection may be unavailable for them.

To avoid these difficulties, it is possible for countries to modify copyright legislation so that it has different requirements for folklore or cultural expression. For example, the [http://portal.unesco.org/culture/en/ev.php-URL_ID=31318&URL_DO=DO_TOPIC&URL_SECTION=201.html Tunis Model Law for Copyright in the Developing Countries], adopted in 1976, advocates extending copyright protection to works of folklore without requiring fixation and with an unlimited term of protection.

'''Trademark Law'''

Some expressions of folklore might be registered as trademarks. Trademark law protects not only graphic representations, but also words and (in some countries) sounds. An advantage of protection through trademark law is its near indefinite term of protection, and its lack of a novelty requirement; it is sufficient for purposes of protection that the trademark has a "distinctive character." However, at least in some countries, trademark protection, unlike copyright and patent protection, requires that the applicant demonstrate use of the mark in commerce. Many cultural expressions do not have a direct link to commerce and are not used as designations of source to the consuming public. Furthermore, the application of trademark law to TK is complicated, since by registering a mark the community makes public TK that the community may desire to keep secret for religious or other reasons.

'''Collective Trademarks, Certification Marks, and Geographic Indicators'''

Collective trademarks, certification marks, and geographic indicators form a subset of trademark law that could be particularly useful for the protection of TK. Collective trademarks are trademarks that are used by a group of producers rather than one producer. Collective marks are held by an association rather than an individual; in order to be useful for protecting TK, members of indigenous groups would need to form an association for the purpose of marking their cultural expressions.

Certification marks indicate that the producer of a good has met certain standards of quality. (A popular example is the [http://www.goodhousekeeping.com/product-testing/history/welcome-gh-seal Good Housekeeping] certification prominent on household products sold in the United States.) Certification marks could be used to specify which TCEs meet the standards of the indigenous community in which they originated. This, like a collective trademark, would require the formation an official oversight organization to act on behalf of the indigenous community in determining which expressions can bear the certification mark.

Geographic indicators, as the name suggests, are marks that can be placed on products that come from a specific geographic area. Geographic indicators are often used for food products, such as wines, but some indigenous groups have experimented with using geographic indicators as a means of protecting cultural expressions by authenticating products that are sold elsewhere. One example of such a program is the Alaskan [http://www.eed.state.ak.us/aksca/Native.htm Silver Hand Program].

'''''Sui Generis'' Laws'''

As we have seen, where TK does not map onto traditional intellectual property regimes, ''sui generis'' laws may be adopted. ''Sui generis'' legislation is a promising route for advocates of TK protection, as it can provide strong protection while avoiding the hurdles that separate TK from traditional IP subject matter.

===='''Absolute Ownership'''====
One possibility for TK protection is to give absolute ownership of the cultural expression to the indigenous group from which it originated. However, this is relatively unpopular option, as it would impede the spread of knowledge and risk the loss of cultural expressions and information in the event that the group is disbanded or its members are assimilated into the general population.

===='''Negotiation and Mutual Respect'''====
Michael Brown argues that the law should, at most, foster "negotiation and mutual respect" between indigenous cultures and those who seek to employ a culture's traditional expressions. This approach would give indigenous groups much less protection, but would facilitate, he argues, beneficial cultural interchange.

===='''International Human Rights'''====
Other scholars, such as Laurence R. Helfer, approach the issue as one of Human Rights. They advocate granting TK protection that is fair and balanced and not overreaching. Their ambition is to balance the needs of indigenous groups and the benefits of a robust public domain.

In this vein, [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1414900 Duncan M. Matthews] points out that "a human rights approach takes what is often an implicit balance between the rights of inventors and creators and the interests of the wider society within intellectual property paradigms and it makes it far more explicit and exacting.... [T]he rights of the creator are not absolute but conditional on contributing to the common good and welfare of society.... [B]ecause a human rights approach also establishes a different and often more exacting standard for evaluating the appropriateness of granting intellectual property protection, in order for intellectual property to fulfill the conditions necessary to be recognised as a universal human right, intellectual property regimes and the manner they are implemented first and foremost must be consistent with the realisation of the other human rights, particularly those enumerated in the Covenant."

===='''System of Domain Public Payant'''====
The doctrine of domain public payant, advocated by the [http://portal.unesco.org/culture/en/ev.php-URL_ID=31318&URL_DO=DO_TOPIC&URL_SECTION=201.html Tunis Model Law] and discussed at WIPO's 1999 Round Table on IP and TK [http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=1192 (section 3 b of the Round Table minutes)], advocates payment of royalties for works, including TCEs, that are in the public domain because they do not qualify for protection under traditional intellectual property law. This would provide monetary compensation for indigenous communities, but would not be a satisfactory solution for communities whose priority is control over their TCEs rather than remuneration. For more on different versions of domain public payant, see the UNESCO Copyright Bulletin from 1994.

=== Why not protect TK? ===

Some observers think that legal protection for traditional knowledge is highly problematic. Here are some of their arguments:

'''TK does not map onto IP law easily'''. As indicated above, traditional cultural expressions are often not put into a fixed form, are not "original," and do not have a defined author -- three requirements for copyright protection. Furthermore, as indicated above, most expressions of folklore are not used in commerce as a means of identifying their source, and so would not be eligible for trademark protection. Finally, patent law may not be available to protect TK because by definition, TK has been used and passed down through generations, and this type of prior public use may preclude patent protection, as least if it is publicly recorded. Thus, it appears that certain attributes of TK make it a difficult fit with all three of the major types of intellectual property law. Additionally, protection for TK does not fit well with the principal goals underlying the protection of intellectual property law. There is little evidence that protection of TK is necessary to incentivize the creation of cultural expression, as other factors have successfully motivated the creation of these expressions for millennia. Furthermore, the labor-desert theory does not easily fit with TK protection, as those who created the traditional expression are either unidentifiable because the expression was the product of collaboration, or in some cases, long dead. Current members of the culture do not have as strong a claim for protection from a labor-desert perspective.

'''Protection of TK would involve perpetuation of illiberal social hierarchies and oppressive customs within indigenous groups'''. Another argument against providing protection for TK is that doing so may perpetuate inequality and oppression within indigenous groups. When an indigenous group is given the right to control the use of TK, the powerful members of that indigenous group may benefit at the expense of the group's minorities. Paul Kuruk argues that protection of TK may further the oppression of women and subordinated social and economic groups within an indigenous culture.

'''Protection of TK may deprive the world community of valuable knowledge'''. Some might argue that principles of liberal democracy dictate that knowledge should be freely shared rather than restricted to certain people or groups. Protection of TK might deprive outsiders of a chance to benefit from the traditions, medicinal or otherwise, of an indigenous culture. When advancing this argument, however, one should keep in mind that principles of liberal democracy, while widely accepted in the Western world, are not necessarily an agreed-upon starting point for this debate.

'''Increase awareness rather than changing the law'''. Some organizations have advocated protection of TK through nongovernmental organizations and projects rather than through legislation. For example, the Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage has compiled a [http://www.unesco.org/culture/ich/index.php?pg=00011#list List of Intangible Heritage in Need of Urgent Safeguarding((.link_green))]. UNESCO lists projects for safeguarding intangible cultural heritage in African countries [http://www.unesco.org/culture/ich/index.php?pg=00176 here]. Finally, groups of academics and activists have created community standards for those, such as anthropologists, whose work impacts indigenous cultures and may involve sensitive issues of disclosure of TK.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

==[[Image:casestudy.png|50px|]] Back to the case study ==

Nadia should make Angela aware of the various types of national intellectual property laws that could apply to this situation. For example, in their country traditional dances might be protected under copyright or ''sui generis'' statutes. However, those laws would only apply within their country, not to the distribution of the Madonna video in other countries. Nadia should also make Angela aware of regional organizations of which their country may be a member. Finally, Nadia could help equip Angela to advocate for protection of her community's traditional cultural expressions by making her aware of the policy recommendations and reports of international organizations, such as WIPO, and the relevant committees that may be proposing draft legislation on traditional knowledge in the near future.

</div>

==[[image:resource.png|50px|]] Additional resources ==

=== '''In General''' ===

:Silke Von Lewinski Ed., Indigenous Heritage and Intellectual Property (2d. 2008).

:[http://www.wipo.int/tk/en/folklore/creative_heritage/ WIPO's Database] contains existing codes, guides, policies, protocols and standard agreements relating to the recording, digitization and dissemination of intangible cultural heritage, with an emphasis on intellectual property issues.

:[http://www.williams.edu/AnthSoc/native/index.htm Who Owns Native Culture by Michael F. Brown((.link_green))] is a good resource for understanding current debates about the legal status of indigenous art, music, folklore, biological knowledge and sacred sites.

:[http://www.iprsonline.org/resources/tk.htm#2006 Intellectual Property Rights Online((.link_green))] is a compendium articles about Traditional Knowledge and Cultural Expressions

:[http://www.aca2k.org/index.php?option=com_content&view=article&id=174&Itemid=60&lang=en The African Copyright & Access to Knowledge Project (ACA2K)((.link_red))] probes the relationship between national copyright environments and access to knowledge in African countries.

:[http://www.wipo.int/tk/en/studies/cultural/expressions/preface/index.html National Experiences with the Protection of Traditional Cultural Expressions/Expressions of Folklore: Preface((.link_green))]

:[http://www.wipo.int/tk/en/folklore/ WIPO's resources on Traditional Cultural Expressions (Folklore)((.link_green))]

:[http://www.wipo.int/tk/en/folklore/culturalheritage/index.html Creative Heritage Project: Strategic Management of IP Rights and Interests((.link_green))] lists resources for developing best practices and surveys existing practices, protocols and policies.

:[http://www.caslon.com.au/ipguide14.htm Resources on Indigenous Cultures and Cultural Property] is a searchable database of codes, guides, policies, protocols and agreements relating to IP and the digitization of ICH. It also includes short case studies presenting informal summaries of best practices, multimedia materials, articles, laws and other resources.

:[http://docs.google.com/viewer?a=v&q=cache:YpXBL2B8YW4J:www.iipi.org/speeches/newyork011404.pdf+what+are+sui+generis+laws+WIPO&hl=en&gl=us&sig=AHIEtbT-vKUx386Lbgxl_JtZO798bxHrrw Is a Sui Generis System Necessary?] reviews traditional IP laws and outlines potential problems with sui generis systems.

:[http://www.wipo.int/tk/en/laws/tk.html WIPO] list of legislative texts on the protection of TK.

:[http://www.wipo.int/tk/en//studies/cultural/minding-culture/studies WIPO case studies of appropriated traditional cultural expressions((.link_green))]

=== '''Examples of Nation Specific Rules Governing Traditional Knowledge''' ===

: [http://www.wcl.american.edu/pijip/go/news/professor-peter-jaszi-authors-report-on-protection-of-the-traditional-arts-in-indonesia Peter Jaszi, "Traditional Culture: A Step Forward for Protection in Indonesia" (2009)((.link_green))]

: Lauryn Grant, "The Protection of Traditional or Indigenous Knowledge," SJ049 ALI-ABA 469 (2004).

:Paul Kuruk, "Goading a Reluctant Dinosaur: Mutual Recognition Agreements as a Policy Response to the Misappropriation of Foreign Traditional Knowledge in the United States," 34 Pepp. L. Rev. 629 (2007).

: Paul Kuruk , "The Role of Customary Law Under ''Sui Generis'' Frameworks of Intellectual Property Rights in Traditional and Indigenous Knowledge," 17 Ind. Int'l & Comp. L. Rev. 67 (2007).

:Paul Kuruk, "Protecting Folklore Under Modern Intellectual Property Regimes: A Reappraisal of the Tensions Between Individual and Communal Rights in Africa and the United States," 48 Am. U. L. Rev. 769 (1999).

:Stephen R. Munzer, Kal Raustiala, "The Uneasy Case for Intellectual Property Rights in Traditional Knowledge," 27 Cardozo Arts & Ent. L.J. 37 (2009).

:[http://en.wikipedia.org/wiki/Native_American_mascot_controversy Wikipedia site] on the United State's Native American Mascot Controversy.

=== '''Examples of Regional Codes Governing Traditional Knowledge''' ===

:Adebambo Adewopo, "The Global Intellectual Property System and Sub-Sahara Africa: A Prognostic Reflection," 33 U. Tol. L. Rev. 749 (2002).

:[http://www.oapi.wipo.net/en/OAPI/index.htm African Intellectual Property Organization (OAPI)]

:[http://www.aripo.org/ African Regional Intellectual Property Organization (ARIPO)]

:[http://www.comunidadandina.org/endex.htm Andean Community]

:[http://untreaty.un.org/unts/144078_158780/12/10/5009.pdf Common Market of the South (MERCOSUR)]

:[http://www.forumsec.org/index.cfm Pacific Islands Forum Secretariat]

=== '''International Legal Instruments''' ===
:Laurence R. Helfer, "Toward a Human Rights Framework for Intellectual Property," 40 U.C. Davis Law Review 971 (2007).

:[http://www.wipo.int/export/sites/www/tk/en/igc/ngo/ciel_gap.pdf A critique of WIPO's Draft Principles from a coalition of indigenous groups((.link_red))]

=== '''Policy Arguments''' ===
:Megan Carpenter, Intellectual Property Law and Indigenous Peoples: "Adapting Copyright Law to the Needs of a Global Community," 7 Yale Hum. Rts. & Dev. L.J. 51 (2004).

:Patty Gerstenblith, "Identity and Cultural Property: The Protection of Cultural Property in the United States," 75 B. U. L. REV. 559, 570 (1995).

:Lorie Graham and Stephen McJohn, "Indigenous Peoples and Intellectual Property," 19 WASH. U. J.L. & POL’Y 313 (2005).

:Kristen A. Carpenter, "Real Property and Peoplehood," 27 Stan. Envtl. L.J. 313, 345-51, 355-57 (2008).

:Paul Kuruk, "Promoting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights in Africa and the US," 48 Am. U. L. Rev. 769 (1999).

:Anupam Chander & Madhavi Sunder, "The Romance of the Public Domain," 92 California Law Review 1331 (2004).

:Kristen A. Carpenter, Sonia Katyal, and Angela Riley, "In Defense of Property," 118 Yale L.J. 1022 (2009).

== [[image:question.png|50px|]] Assignment and discussion questions ==

'''[[image:assignment.png|50px|]]Assignment'''

Answer one of the following questions:

1. Should intellectual property protection of any sort be granted to traditional knowledge?

2. Assuming some sort of intellectual property protection for traditional knowledge is appropriate, which of the many legal systems discussed in this module is the best?

'''[[image:discussion.png|50px]]Discussion Question(s)'''

Select one of the answers that your colleagues provided to the Assignment questions, and comment on it. Explain why you agree or disagree.

== Contributors ==

This module was created by [[Contributors#cox|Emily Cox]], [[Contributors#Abaker|Adrienne Baker]], [[Contributors#arothstein|Ariel Rosthstein]], and [[Contributors#weiler|Miriam Weiler]]. It was then edited by [[Contributors#fisher|William Fisher]].

{{NavFooter}}

Module 8: Traditional Knowledge

2011-05-24T13:48:22Z

Thackett: /* UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003) */

==[[Image:key.png|50px|]] Learning objective ==

One of the most complex recent extensions of copyright law involves traditional knowledge. This module first describes the intricate and rapidly changing set of legal rules pertaining to traditional knowledge, and then explores the fierce continuing debate concerning the appropriate scope of protection for this novel topic.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

== [[Image:casestudy.png|50px|]]Case Study ==

Angela is a member of an indigenous community that has a unique tradition of dance. Performances of these dances attract members of other indigenous communities and tourists. Angela calls Nadia when she sees elements of one of the dances in a recently released music video by the American singer, Madonna. Anglea asks whether she has any legal recourse either to stop the use of the dance or to obtain compensation for herself or for her community.

</div>

==[[Image:lesson.png|50px|]] Lesson ==

=== What Is Traditional Knowledge? ===

Though difficult to define, '''traditional knowledge (TK)''' is generally understood to encompass four types of creative works: '''verbal expressions''' (stories, epics, legends, folk tales, poetry, riddles, etc.), '''musical expressions''' (folk songs and instrumental music), '''expressions by action''' (dances, plays, ceremonies, rituals and other performances) and '''tangible expressions''' that must be fixed on a permanent material (drawings, designs, paintings (including body-paintings), carvings, sculptures, pottery, mosaics, jewelry, basket work, textiles, carpets, costumes, musical instruments, etc.) More detailed definitions can be found in the [http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_7/wipo_grtkf_ic_7_3.pdf World Intellectual Property Organization (WIPO)] and [http://portal.unesco.org/culture/en/ev.php-URL_ID=34325&URL_DO=DO_TOPIC&URL_SECTION=201.html United Nations Educational, Scientific and Cultural Organization (UNESCO)] Model Provisions. TK is used interchangeably with the term '''traditional cultural expressions (TCEs)'''; both refer to music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives. TCEs are integral to the cultural and social identities of indigenous and local communities. They embody knowledge and skills, and they transmit core values and beliefs.

=== What is the Debate About? ===

Several combined forces have recently led to commercialization of TCEs on a global scale without due respect being given to the cultural or economic interests of the communities from which they originate. The Internet provides pervasive access to TCEs. The demand of western consumers for what is sometimes (disrespectfully) called "primitive art" has increased. Finally, tourism in developing countries has exposed more potential consumers to manifestations of folklore that can be found there. As a result, indigenous groups are seeking protection for their TCEs and their responses have affected legislation at national, regional and international levels.

=== What types of Traditional Knowledge are Most Frequently Used? ===

Exploitation of TK occurs in different forms. Examples include the unauthorized production of indigenous craft objects in the [http://www.wipo.int/export/sites/www/tk/en/studies/cultural/minding-culture/studies/carpetscase-main.pdf souvenir market], the unauthorized use of indigenous imagery on [http://www.wipo.int/tk/en//studies/cultural/minding-culture/studies/rockart.pdf clothing], [http://cita.chattanooga.org/chml.html food products], or [http://news.bbc.co.uk/2/hi/asia-pacific/1627209.stm toys], the unauthorized use of indigenous names or phrases as [http://www.wipo.int/export/sites/www/tk/en/studies/cultural/minding-culture/studies/trademarks.pdf trademarks], the unauthorized incorporation of traditional dance into commercial [http://www.villagevoice.com/2004-04-13/news/rap-rage-redvolution/ performances], and the unauthorized use of traditional music in commercial [http://en.wikipedia.org/wiki/Taiwanese_aborigines musical productions].

=== What Kind of Legal Liability Governs? ===

What kinds of legal rules (if any) should govern use of traditional knowledge by people who are not members of communities from which the TK originates? This issue is being addressed on national, regional and international levels. TK might be protected through conventional IP law -- for example, through the use of Copyright law, Patent law, Geographical Indicators, or Certification Trademarks. However, many regions and countries have found it difficult to fit TK into traditional IP protection schemes. As a result, some have adopted ''sui generis'' laws that apply specifically to TK. Examples of these different approaches are discussed below.

== How Individual Nations deal with Traditional Knowledge ==

==='''Countries Whose Traditional IP Laws Do Not Cover Traditional Knowledge'''===

Several nations have copyright laws that expressly exclude folklore from the list of works eligible for copyright protection. These include: '''Armenia, Azerbaijan, Belarus, Bulgaria, Estonia, Greece, Hungary, Kazakhstan, Kyrgyzstan, Lebanon, Lithuania, Moldova, Russia, Slovenia, The Ukraine, Uzbekistan''' and '''Yemen'''. These countries tend to classify traditional knowledge as within the "public domain" and thus do not restrict use of or access to TK. For instance, [http://www.ohr.int/ohr-dept/legal/oth-legist/doc/BH-LAW-ON-COPYRIGHT-AND-RELATED-RIGHTS.doc Article 9] of the 2002 Copyright Act of '''Bosnia and Herzegovina''' states that "the use of folk literature and art creations for the purpose of a literary, artistic or scientific arrangement shall be free."

=== '''Countries Whose Traditional IP Laws Cover Traditional Knowledge'''===

==== ''' Protection Despite No Explicit Reference to TCE'''====

The traditional IP statutes in some nations contain no explicit references to folklore, but TCEs may still be protected in those nations under copyright law, other traditional intellectual property doctrines, or through special statutes. For example, most countries in Europe have copyright legislation that may be used to cover traditional knowledge, but do not have any provisions explicitly mentioning TCEs. These include: '''Belgium''', '''Cyprus''', '''Denmark''', '''Finland''', '''France''', '''Germany''', '''Iceland''', '''Italy''', '''Latvia''', '''Luxembourg''', '''Norway''', '''Poland''', '''Portugal''', '''San Marino''', '''Spain''', '''Sweden''', and '''Switzerland'''. Several other "major industrialized countries" lack explicit TCE references as well. These include: '''Australia''', '''Canada''', '''Japan''', and the '''United States'''. Additionally, several countries with recently-enacted copyright legislation have not expressly included TCEs within its scope. Included in this group are several Asian countries (such as '''India''', '''Malaysia''', '''Philippines''', and '''Thailand''') and several Caribbean and South American countries (such as '''Barbados''', '''El Salvador''', '''Saint Vincent and the Grenadines''', '''Trinidad and Tobago''', and '''Venezuela'''). Silence in these statutes, however, does not mean that traditional knowledge is unprotected. Rather, in these countries TCEs are protected on the basis of traditional IP, customary, regional or international laws or through ''sui generis'' legislation.

In '''Australia''', TCEs are protected through traditional copyright law. For example, in [http://www.austlii.edu.au/au/journals/AILR/1996/20.html ''Milpurrurru v. Indofurn Ply Ltd.''((.link_red))], aboriginal Australian artists sued to prevent the importation by a Perth-based company of carpets manufactured in Vietnam, upon which were reproduced the designs of several prominent aboriginal artists without their permission. The designs had been copied from a portfolio of artworks produced by the Australian National Gallery. The federal court awarded the aboriginal artists substantial damages for copyright infringement and granted an injunction against any further infringement. The court pointed out that the unauthorized use of the artwork involved the pirating of cultural heritage and that such behavior could have far reaching effects on the Australian cultural environment. It was deemed especially offensive that the images had been used on a medium (carpet) that was designed to be walked upon.

Other nations have begun using trademark law to protect TCEs, even when TCEs are not mentioned in national statutes. For example, in '''Canada''', '''New Zealand''' and the '''United States''', as well as '''Australia''', indigenous people have sometimes relied (with varying degrees of success) upon trademark law or its equivalent to protect tribal names and other designs and motifs against unauthorized use by others. Considerable efforts have also been made to protect sacred and culturally significant symbols as well as collective and certification marks under traditional trademark law. For instance, '''Australia''' provides for design registration, which allows for the registration of features of shape, configuration, pattern or ornamentation applicable to an article. This system protects the visual form for 16 years, provided that it is new and original and is not based on a pre-existing design. Still, because of the originality requirement, this system has not yet been effective for protecting folklore. More effective is the system used in '''New Zealand'''. There, the recently adopted [http://www.legislation.govt.nz/act/public/2002/0049/latest/DLM164240.html?search=ts_act_Trade+Marks+Act_resel&sr=1 Trade Marks Act of 2002], prevents the registration of trademarks based on Maori text or imagery where the use or registration of such marks would be offensive to the Maori. The Commissioner of Trade Marks has set up a Maori Advisory Committee to advise on whether the proposed registration or use of a mark is likely to be offensive.

Although the '''United States''' has not acted to provide general protection for indigenous peoples' traditional knowledge, it has sometimes adopted narrow statutes in response to Native Americans' attempts to regain self-governance and to control the use of their traditional knowledge by non-community members. Efforts of this sort include:

* the [http://www.nps.gov/history/local-law/anti1906.htm Antiquities Act of 1906] (16 U.S.C. §§ 431-33 (2000)), giving the President power to set aside as national monuments certain historic landmarks, structures and other objects of historic interest,
* the [http://www.nps.gov/history/local-law/hsact35.htm Historic Sites, Buildings and Antiquities Act of 1935] (16 U.S.C. §§ 461-67), empowering the National Park Service to restore, reconstruct, and maintain sites and objects of historic interest,
* the [http://www.nps.gov/history/local-law/nhpa1966.htm National Historic Preservation Act of 1966] (16 U.S.C. § 470), providing for the maintenance of a National Register of Historic Places and requiring the Secretary of the Interior to establish a program to help Native American tribes to preserve their properties, taking into account tribal values,
* the [http://www.doi.gov/iacb/act.html Native American Arts and Crafts Act] (25 U.S.C. § 305 (2000)), intended to assure the authenticity of Native American artifacts, and
* the [http://www.nps.gov/nagpra/MANDATES/25USC3001etseq.htm Native American Graves Protection and Repatriation Act] (“NAGPRA”)( 25 U.S.C. § 3001(1)-(13) (2000)), which provided that the ownership or control of Native American cultural items excavated or discovered on federal or tribal lands remained with lineal descendants, Native American tribes, or Hawaiian Organizations.

==== ''' Protection Using Explicit Reference to TCEs'''====

Many countries now explicitly refer to folklore in their copyright legislation. Such references take various forms.

Some countries have sections, chapters, or special parts of copyright law that are entirely devoted to folklore. Countries within this group include '''Algeria, Bolivia, Brazil, Burkina Faso, Burundi, Chile, Congo, Ghana, Kenya, Mongolia, Morocco, Namibia, Nicaragua, Niger, Nigeria, Papua New Guinea, Paraguay, Rwanda, Seychelles, Togo, Tanzania, Tunisia,''' and '''Zimbabwe'''.

In the '''Congo''', for example, folklore is considered party of the country's heritage, and Congolese copyright law protects folklore without a time limitation. A "Body of Authors" society is responsible for collecting royalties, representing authors' interests, and overseeing the use of folklore. Permission must be sought from the society before any public performance, reproduction, or adaptation of folklore for commercial purposes. This includes the import or distribution of copies of works of national folklore made abroad. Public agencies are exempted from the obligation to obtain prior authorization to use folklore for non-profit activities, though they still must notify the society before use.

In '''Ghana''', the recently adopted [http://www.wipo.int/clea/en/text_pdf.jsp?lang=EN&id=1789. Copyright Act of 2005] significantly changed the way traditional knowledge is protected. In the Act, copyright protection extends to literary works, artistic works, musical works, sound recordings, broadcasts, cinematographic works, choreographic works, derivative works, and program-carrying broadcast signals. To be eligible for copyright, the work must be original, in writing (or otherwise reduced to material form), and created by a citizen or resident of Ghana. The work must also have been first published in Ghana, or, if first published outside Ghana, published in Ghana within thirty days of its original publication. A work created by an individual is protected for the life of that individual plus fifty years; a work created by a corporation is protected for fifty years from the date on which the work was first made public. In Ghana, an author has exclusive rights to reproduce the work (with the exception of private use, quotations in other works, and use in pedagogy, which are permitted). It is an infringement of the copyright to reproduce, sell or exhibit in public for commercial purposes any work without authorization, or to use the work in a manner that adversely affects the reputation of the author. Both civil and criminal penalties may apply. Article 59 of the Act establishes a National Folklore Board, which governs the administration, preservation, registration and promotion of expressions of folklore. The Board may authorize the use of folklore and may determine a fee to be paid. The Act provides that the copyrights of authors of folklore vest in the government as if the government were the creator of the works. In Ghana (as in the Central African Republic and Congo), funds from fees or other money accruing from the use of folklore are to be used for social welfare benefits.

'''Namibia''' grants indigenous communities indefinite exclusive rights to control expressions of folklore and their adaptations, translations, and transformations. These exclusive rights include the right to publicize, make a reproduction, or distribute copies of an expression of folklore; communicate an expression of folklore to the public by performance, broadcasting, distribution by cable or other means; include an expression of folklore in a cinematographic film or a television broadcast; cause the folklore expression, or a television program or other program including the expression, to be transmitted in a diffusion service (unless such service transmits a lawful broadcast, including the expression, and is operated by the original broadcaster); make adaptations, translations and other transformation of the expression ([http://www.wipo.int/export/sites/www/tk/en/consultations/questionnaires/ic-2-7/namibia.pdf Article 60]). [http://www.wipo.int/export/sites/www/tk/en/consultations/questionnaires/ic-2-7/namibia.pdf Article 61], however, allows a secondary user to use expressions of folklore for personal or private use, criticism or review, teaching or scientific research, and incidental use. Article 61 also allows the use of the original expression if the use is "compatible with fair practice," such as for creating an illustration or borrowing the expression to create an original work.

Likewise, '''Nigerian''' [http://www.nigeria-law.org/CopyrightAct.htm Copyright Law] protects expressions of folklore "against reproduction, communication to the public by performance, broadcasting, [or] distribution by cable." In addition, it forbids adaptations, translations, and other transformations of such folklore, when made either for commercial purposes or outside their traditional customary context. The right to authorize any of these acts lies with the Nigerian Copyright Council. However, Nigerian folklore may be used without authorization for private, educational, or illustrative purposes. The law requires identification of the source of the folklore by reference to the community or place from which the folklore is derived. Violations of the law subject the user to liability in damages, injunctions, and other remedies the court deems appropriate. Nigeria also protects traditional knowledge through patents and trademarks. To be patentable, an invention must be new, result from inventive activity, and be capable of industrial application. The patent right is vested in the inventor, and the patent is valid for 20 years after the filing date. Additionally, Nigerian legislation protects registered trademarks. Registration is valid for seven years and then can be renewed; registration is limited to marks that are distinctive.

In '''Rwanda''', [http://www.amategeko.net/display_rubrique.php?ActDo=ShowArt&Information_ID=874&Parent_ID=3070032&type=public&Langue_ID=Fr&rubID=3070056#3070056 Art. 3 of the Copyright Law (1983)] provides generous protection to folklore. Included in its coverage are traditions and literary productions (tales, legends, myths, proverbs, accounts, and poems), artistic works (dances and spectacles of any kind, musical works of any kind, styles and works of decorative art, and architectural styles), religious works (ritual rites, objects, clothing, and places of worships), scientific knowledge (practices and products of medicine and pharmacology, theoretical and practical fields of the natural science and anthropology), and technological knowledge.

The Copyright Law of '''Zimbabwe''' protects performers' rights to record, broadcast and distribute copies of their performances ([http://www.unesco.org/culture/pdf/anti-piracy/Zimbabwe/zb_copyright_2000_en Section 68]). In addition, it extends protection to a "work of folklore," which it defines as a literary, musical or artistic work, whether or not it is recorded, of which: (a) no person can claim to be the author; and (b) the form or content is embodied in the traditions peculiar to one or more communities in Zimbabwe; and includes: (i) folk tales, folk poetry and traditional riddles; (ii) folk songs and instrumental folk music; (iii) folk dances, plays and artistic forms of ritual; and (iv) productions of folk art, in particular drawings, paintings, sculptures, pottery, woodwork, metalwork, jewelery, baskets and costumes ([http://www.unesco.org/culture/pdf/anti-piracy/Zimbabwe/zb_copyright_2000_en Section 80]).

The copyright laws in several other countries shield traditional knowledge by including folklore in the list of literary and artistic works eligible for regular copyright protection. Countries adopting this approach include '''Angola, Benin, Cameroon, Djibouti, Gabon, Guinea, Ivory Coast, Lesotho, Madagascar, Mali, Mozambique, Oman, Republic of Central Africa, Senegal, Togo, Uganda, and Zaire'''.

For instance, '''Cameroonian''' law extends copyright protection to [http://www.wipo.int/clea/en/text_html.jsp?lang=en&id=836 "works derived from folklore."] Users must seek permission from the National Copyright Corporation before any commercial exploitation of folklore may occur. Agents authorized by the Corporation regulate the use of folklore in Cameroon, while the Corporation collects royalties fixed by agreement between the parties and brings infringement actions against unlawful users of protected works.

'''Lesotho''''s [http://www.copyright-watch.org/sites/default/files/LesothoCopyrightOrder1989.pdf Copyright Order of 1989] defines folklore as cultural productions with "characteristic elements of the traditional artistic heritage developed and maintained over generations by a community or by individuals reflecting the traditional artistic expectations of their community." Works inspired by expressions of folklore are protected as original works (Article 4(c)).

In '''Mali''' all persons (except public entities) seeking to use folklore for profit must obtain prior authorization from the Minister of Arts and Culture who may impose a fee for such use. The law prohibits the assignment or licensing of "works derived from folklore" without the approval of the Minister. The law also places in the public domain and charges a user fee for all "works whose authors are unknown, including the songs, legends, dances, and other manifestations of the common cultural heritage."

'''Senegal''' includes folklore in the list of works eligible for copyright protection. Article 1 of the Senegalese Copyright Act provides special protection for folklore, and Article 9 states that any "direct or indirect" fixation of such material for "profit-making purposes" is subject to prior authorization by the Copyright Office of Senegal. All folklore uses require prior authorization from the Office, which charges users a fee whose amount depends on the nature of the use and prior arrangements. Senegal criminalizes the importation of works into Senegal that violate its copyright law.

''' Uganda's''' [http://www.i-network.or.ug/index2.php?option=com_docman&task=doc_view&gid=93&Itemid=130 Copyright and Neighbouring Rights Act, 2006] grants copyright protection to "work in the field of literature, traditional folklore and knowledge, science and art" (Article 5). It grants performers -- persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore -- the right to control the fixation, transmission and reproduction of their performances (Articles 2 and 22).

A final group of countries protect TCEs by granting rights to the State for its protection. Included in this group are '''Egypt, Jordan, Malawi, Saudi Arabia, Sudan, ''' and '''Qatar'''.

For instance, in '''Sudan''', [http://www.wipo.int/clea/en/text_html.jsp?lang=en&id=3605#P116_9052 Article 7] of the Copyright Act notes that "National folklore of the Sudanese community is deemed to be the property of the State" and that the "State represented by the Ministry of Culture and Information, shall endeavor to protect works of folklore by all legal ways and means, and shall exercise the rights of an author in cases of mutilation, transformation and commercial exploitation." Similarly, in '''Egypt''', [http://www.ecipit.org.eg/Arabic/pdf/IPR%20law%20no%2082%20year%202002%20English.pdf Article 142] of the Law on the Protection of Intellectual Property Rights No. 82 (3 June 2002) defines "national folklore" as part of the "public domain of the people." The act states, "The competent ministry shall exercise the author’s economic and moral rights and shall protect and support such folklore." In '''Saudi Arabia''', [http://www.boe.gov.sa/English/En%20Word/2%20Media,%20Culture%20and%20Publishing/Copyright%20Law.doc Article 7] of the Copyright Law of 2003 states that "[f]olklore shall be the property of the state, and the Ministry shall exercise the copyright pertaining thereto," and that "[t]he import or distribution of copies of folklore works, copies of their translations or others which are produced outside the Kingdom without a license from the Ministry shall be prohibited." Likewise, in '''Qatar''', Article 32 of the Copyright Act of 2002 provides that "[n]ational folklore shall be the public property of the State" and that "the State...shall protect national folklore by all legal means, and shall act as the author of folklore works in facing any deformation, modification or commercial exploitation." In '''Jordan''', [http://www.agip.com/country_service.aspx?country_key=50&service_key=C&SubService_Order=3&lang=en Article 7(c)(3)] of the Copyright Law No. 22 of 1992 excludes from copyright protection "works which reverted to the public domain. For the purpose of this article folklore shall be considered in the public domain with the minister exercising the copyrights of these works against distortion, misrepresentation or damage to cultural interests" unless "the collections of these works were distinguished by a personal effort involving innovation or arrangement."

=== '''Countries with ''Sui Generis'' Traditional Knowledge Laws'''===

The countries discussed in the previous section include traditional knowledge in their regular copyright laws, but typically treat TK somewhat differently from other types of copyrighted works. The members of the final group of countries go one step further. Instead of classifying TK as a (special) type of copyrighted work, these countries have adopted so-called ''sui generis'' laws that create an entirely different sort of legal protection for TK. (As we will see, the distinction between customized copyright laws and sui generis laws is blurry, but is nevertheless helpful in differentiating the types of approaches to this issue.)

Two early examples of national ''sui generis'' laws grew out of countries' efforts to protect the traditional knowledge of indigenous groups concerning the medicinal value of plants. '''Ecuador’s''' [http://www.wipo.int/clea/en/text_html.jsp?lang=en&id=1205 Law on Intellectual Property of 1998] protects the country’s biological and genetic heritage and conditions the grant of product or process patents relating to that heritage on the acquisition of rights from the relevant traditional owners. Similarly, in 1997, the '''Philippine Congress''' passed the [http://www.grain.org/brl_files/philippines-ipra-1999-en.pdf Indigenous Peoples Rights Act] “to recognize and promote all the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs), including their rights to “preserve and develop their cultures, traditions, and institutions” in cultural property. The Act affirms the right of ICCs/IPs to the full ownership and control of their cultural and intellectual rights. Thus, access to biological and genetic resources is permitted only after obtaining the free and informed consent of such communities. In addition, the Act guarantees ICCs/IPs the right to practice and revitalize their cultural traditions, including “to practice and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect and have access to their religious and cultural sites; the right to the use and control of ceremonial objects; and, the right to the repatriation of human remains.”

'''Panama's''' [http://www.ichrdd.ca/english/commdoc/publications/indigenous/aresioPanamaLawEng.html Act No. 20] launched the ''sui generis'' protection movement specifically for TCEs in June, 2000. The Act subjects “the rights of use and commercialization of the arts, crafts and other cultural expressions based on the tradition of the indigenous community” to the regulation of each indigenous community approved and registered in the DIGERPI or in the National Copyright Office of the Ministry of Education. It defines “indigenous collective rights” as “indigenous intellectual and cultural property rights law relating to art, music, literature...and other subject matter and manifestations that have no known author or owner and no date of origin and constitute the heritage of an entire indigenous people.”

Likewise, '''Peru's''' 2002 [http://www.wipo.int/export/sites/www/tk/en/laws/pdf/peru_law_27811.pdf ''sui generis'' TK Law] aims to promote respect for and protect the "collective knowledge of indigenous peoples; to promote the fair and equitable distribution of the benefits derived from the use of that collective knowledge; to promote the use of the knowledge for the benefit of the indigenous peoples and mankind in general; to ensure that the use of the knowledge takes place with the prior informed consent of the indigenous peoples; to promote the strengthening and development of the potential of the indigenous peoples...and to avoid situations where the patents are granted for inventions made or developed on the basis of collective knowledge of the indigenous peoples of Peru without any account being taken of that knowledge as prior art in the examination of the novelty and inventiveness of the said inventions."

In 2003, '''Guatemala''' designed and implemented a special ''sui generis'' set of intellectual property rights for indigenous folklore, backed by both civil and criminal penalties. Guatemala's "Cultural Heritage Protection Law" also enables the attorney general to protect any registered indigenous cultural good (including oral or musical traditions) and provides perpetual intellectual property protection for any registered item. The Guatemalan system is reciprocal; it recognizes the registered folklore of any other country that recognizes the Guatemalan registry.

It is likely that many other countries will soon adopt ''sui generis'' TK laws. One indication of the trend in this direction is that many national members of WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore have called for the establishment of ''sui generis'' systems in their written submissions to the Committee. Among such countries are '''Brazil, Colombia, Ethiopia, Egypt, Indonesia, Iran, Morocco, the Russian Federation, Thailand''', and '''Venezuela'''.

== Regional Codes Governing Traditional Knowledge ==

Another way in which some countries attempt to protect traditional cultural expressions (TCEs) is by pooling their resources and creating intergovernmental organizations that monitor and seek to control the use of TCEs in foreign territories. Advantages of this approach include harmonizing local laws, centralizing administration, and avoiding duplication of costly efforts across multiple countries. While the objectives of regional laws may be sound, it is debatable whether the regional organizations provide effective forms of enforcement. The major examples of this strategy are described below.

=== '''[http://www.aripo.org/ African Regional Intellectual Property Organization (ARIPO)]''' ===
The African Regional Intellectual Property Organization (ARIPO) (originally named the African Regional Industrial Property Organization) was formed in 1976 and includes many of the English-speaking African countries: '''Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia,''' and '''Zimbabwe'''. ARIPO’s overall [http://www.aripo.org/index.php?option=com_content&view=article&id=19&Itemid=53 objectives] are to harmonize intellectual property regimes, foster cooperation, and provide coordinated administrative training across member states.

ARIPO has adopted two central protocols: the [http://www.aripo.org/index.php?option=com_docman&task=doc_view&gid=4&tmpl=component&format=raw&Itemid=11 Harare Protocol], pertaining to patents and industrial designs, and the [http://www.aripo.org/index.php?option=com_docman&task=doc_view&gid=5&tmpl=component&format=raw&Itemid=11 Banjul Protocol], relating to trademarks and service marks. Surprisingly, neither protocol specifically mentions protection of traditional knowledge or TCEs. Some have criticized the protocols as insensitive to the needs of the member states. However, since the adoption of the protocols, ARIPO has continued to work with the World Intellectual Property Organization (WIPO) to protect indigenous knowledge. Furthermore, ARIPO’s Administrative Council has initiated a study to assess the feasibility of developing a traditional knowledge database. In 2009, ARIPO’s Administrative Council [http://www.aripo.org/index.php?option=com_docman&task=doc_view&gid=57&tmpl=component&format=raw&Itemid=11 suggested] three primary ways to implement the Organization’s mandate on the protection of genetic resources, traditional knowledge, and expressions of folklore: (1) develop ARIPO’s Traditional Knowledge Digital Library, (2) create regional frameworks on access and benefit sharing related to biological resources, and (3) adopt the Draft Protocol and implementing regulations on the protection of traditional knowledge and the expressions of folklore. Progress on one or more of these paths can be expected in the near future.

=== '''[http://www.oapi.wipo.net/en/OAPI/index.htm African Intellectual Property Organization (OAPI)]''' ===
The African Intellectual Property Organization (OAPI) was created by the francophone African countries in 1962. The organization's most important legal instrument is the Bangui Agreement, which was signed in 1977. The following 16 African countries are bound by the Agreement: '''Benin, Burkina Faso, Cameroon, Central African Republic, Congo, Cote d’Ivoire, Guinea, Equitorial Guinea, Gabon, Guinea Bissau, Mali, Mauritania, Niger, Senegal, Chad,''' and '''Togo'''. The [http://www.oapi.wipo.net/doc/en/bangui_agreement.pdf Bangui Agreement] was amended in 1999 so that its formal name is now “the Agreement of 24 February 1999 Revising the Bangui Agreement of 2 March 1977 on the creation of an African Intellectual Property Organization.” Although the 1977 version of the Agreement is no longer effective, comparing the 1977 and 1999 versions helps to identify the strengths and weaknesses of OAPI’s most important agreement.

====''Annex VII in the 1977 Bangui Agreement''====

The most notable difference between the 1977 and the 1999 Agreements is the removal of direct protection of folklore from the copyright section. Annex VII of the 1977 Agreement obliged member states to declare use of folklore to a national agency and to pay fees for such use. The fees collected were directed, in part, to cultural and social purposes. This section was criticized for its vagueness because most people were not sure how broadly to interpret the scope of “use of elements borrowed from folklore” (1977 Agreement, Annex VII, Chapter 1, Article 8, para. 5). Additionally, the older version of the Bangui Agreement imposed a fine for any use “of folklore work or a work that has entered the public domain” without prior declaration to the appropriate national agency (1977 Agreement, Annex VII, Chapter 1, Article 38, para. 2). The older system can be described as one in which folklore automatically belongs to the public domain and folklore users simply pay the public domain for the use to be authorized. Alternatively, this older system can be characterized as one in which folklore is owned and regulated by the state because, as declared in the original Agreement, the state has an indefeasible right with respect to folklore and “folklore is by its origin part of national heritage” (1977 Agreement, Annex VII, Chapter 1, Article 8, para. 1). The tension between these two interpretations ultimately created confusion regarding who owned TCEs. Protection of folklore and cultural heritage was then moved from the copyright section of the 1977 Agreement to the section discussing provisions common to copyright and neighboring rights in the 1999 Agreement. As discussed below, this new placement did not eliminate confusion and ambiguity.

====''Annex VII in the [http://www.oapi.wipo.net/doc/en/bangui_agreement.pdf 1999 Bangui Agreement]''====

The 1999 Bangui Agreement continues earlier attempts to protect folklore and cultural heritage. Under the new system, users of folklore must receive prior authorization. The objectives of the system are to protect (Chapter 2), to safeguard (Chapter 3), and to promote (Chapter 4) cultural heritage. “Cultural heritage” is defined as a composition of “all those material or immaterial human productions that are characteristic of a nation over time and space. Such productions relate to (i) folklore, (ii) sites and monuments; [and] (iii) ensembles” (Article 67, paras. 1-2). The definitions of “folklore” (Article 68) and “monuments” (Article 70) are very detailed. Additionally, the definitions of “sites” and “ensembles” can be found in Articles 69 and 71, respectively.

Prohibited acts are listed in Article 73. They include deformation, export, misappropriation, and unlawful transfer. Article 74 states three main exceptions to these prohibitions: "use for teaching," "use as illustration of the original work of an author on condition that the scope of such use remains compatible with honest practice," and "borrowings for the creation of an original work from one or more authors."

A fee payment scheme similar to the 1977 Agreement still exists in which “the exploitations of expressions of folklore and that of works or productions that have fallen into the public domain . . . shall be subject to the user entering into an undertaking to pay the national collective rights administration body a relevant royalty” (1999 Agreement, Annex VII, Chapter 5, Article 59, para. 1). The fees will be donated, in part, to “welfare and cultural purposes” (1999 Agreement, Annex VII, Chapter 5, Article 59, para. 3).

Some observers contend that the 1999 Agreement completely removed folklore from copyright law and instead provided it with ''sui generis'' protection whereby folklore is regulated and owned by the government. However, others see that folklore can still be protected as a form of copyright as stated in Article 5 of Annex VII. This ambiguity creates confusion as to who owns folklore under the terms of the Agreement. This confusion is even greater than in the 1977 Agreement because there are no longer specific references to the States having an indefeasible right with respect to folklore and cultural heritage.

=== '''[http://en.wikipedia.org/wiki/Mercosur Common Market of the South (MERCOSUR)]''' ===

MERCOSUR is a regional trade agreement created in 1991 by the Treaty of Asuncion between '''Argentina, Brazil, Paraguay,''' and '''Uruguay'''. In 1995, the regional organization adopted an important protocol to protect indigenous heritage: the Protocol for the Harmonization of Intellectual Property Norms in MERCOSUR with respect to Trademarks and Indications of Source or Denominations of Origin. In particular, Article 19 of the Protocol requires Party States to “reciprocally protect their indications of source and dominations of origin.” “Denomination of origin” is defined broadly as “the geographical name of a country, city, region or locality within a Party State's territory, which designates products or services whose qualities or characteristics are exclusively or essentially caused by the geographical environment, including natural and human factors.” Such a broad definition of geographic origin -- which notably includes “human factors” -- encompasses traditional cultural expressions. Similarly, the Protocol attempts to protect traditional knowledge through its definition of “indications of source” by basing the defined term on the location that is “known as a center place for extraction, production or manufacture of a certain product or for the performance of a certain service.” In 1996, MERCOSUR affirmed the importance of cultural rights by creating the Protocol on the Cultural Integration of MERCOSUR. Although traditional knowledge is not specifically mentioned, this protocol focuses on the creation of cultural policies that display historical traditions, common values, and cultural diversity of member countries.

=== '''[http://www.comunidadandina.org/endex.htm Andean Community]'''===

The Andean Community (originally known as the Andean Pact) was created in 1969 with the signing of the Cartagena Agreement. The overall objective of the Community is to enable the member countries to work jointly to “improve their people’s standard of living through integration and economic and social cooperation.” The current member states are '''Bolivia, Columbia, Ecuador,''' and '''Peru;''' '''Mexico''' and '''Panama''' are observer countries. In 2000, the Community enacted [http://www.comunidadandina.org/ingles/normativa/D486e.htm Decision 486], the purpose of which was to improve intellectual property protection and provide “more expeditious and transparent procedures for trademark registration and patent issues.” Although this Decision focuses on biological resources, it also provides for protection of traditional knowledge in the General Provisions. Article 3 states that member countries must “ensure that the protection granted to intellectual property elements shall be accorded while safeguarding and respecting their biological and genetic heritage, together with the traditional knowledge of their indigenous, African American, or local communities. As a result, the granting of patents on inventions that have been developed on the basis of material obtained from that heritage or that knowledge shall be subordinated to the acquisition of that material in accordance with international, Andean Community, and national law. The Member Countries recognize the right and the authority of indigenous, African American, and local communities in respect of their collective knowledge.”

=== '''[http://www.forumsec.org.fj/resources/uploads/attachments/documents/PacificModelLaw,ProtectionofTKandExprssnsofCulture20021.pdf Pacific Regional Framework for the Protection of Traditional Knowledge and Expression of Culture]''' ===

The [http://www.forumsec.org/resources/uploads/attachments/documents/PacificModelLaw,ProtectionofTKandExprssnsofCulture20021.pdf Pacific Regional Framework for the Protection of Traditional Knowledge and Expression of Culture] was created in 2002 but has not yet been implemented. It was drafted by the [http://www.forumsec.org/index.cfm Pacific Islands Forum Secretariat] whose member countries are '''Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Republic of Marshal Islands, Samoa, Solomon Islands, Tonga, Tuvalu,''' and '''Vanuatu'''. Additionally, the following countries have associate membership: '''New Caledonia''' and '''French Polynesia'''. Finally, '''Tokelau, Wallis and Futuna, the Commonwealth, the Asia Development Bank,''' and '''Timor L'este''' all have observer status.

The Forum has developed a [http://www.forumsec.org/resources/uploads/attachments/documents/Traditional%20Knowledge%20Action%20Plan%202009.pdf specific action plan] that details ways that the member countries plan to protect the Region’s traditional knowledge. In particular, the Forum has created a set of [http://www.forumsec.org/resources/uploads/attachments/documents/PacificModelLaw,ProtectionofTKandExprssnsofCulture20021.pdf Model Laws to protect traditional knowledge and the expressions of culture]. The laws are noteworthy because they not only protect TK and TCEs but also employ customary uses as the foundation of the framework.

The Framework’s general approach is to create ''new'' rights in traditional knowledge and expressions of culture, which previously may have been regarded as part of the public domain. People seeking to use TCEs must have prior and informed consent from the traditional owners. The rights the Framework specifies fall into two categories: moral rights and traditional cultural rights. It is crucial to note that neither moral nor traditional cultural rights depend on copyright formalities (e.g., registration requirements). Moral rights include the right of attribution, the right against false attribution, and the right of integrity of indigenous work. As stated in Clause 7(2) of Part I, traditional cultural rights include the right to reproduce, publish, perform, make available online, and create derivative works, among many others. These are said to be both exclusive and inalienable.

Clause 11 is noteworthy because it states that traditional rights exist in addition to (and do not affect) the rights created by other intellectual property law regimes. Clause 7(4) provides that there is no traditional knowledge protection in the following contexts: face-to-face teaching, criticism or review, reporting news or current events, judicial proceedings, and incidental use.

Clause 7 of Part I of the Framework makes clear who owns the protected TCEs. Traditional owners are defined as: “a group, clan, or community of people, or the individual who is recognized by a group, clan, or community of people as the individual, in whom the custody or protection of the traditional knowledge or expressions of culture are entrusted in accordance with customary law and the practices of that group, clan, or community.”

Finally, Clause 37 details the role of the Cultural Authority in protecting TCEs. Those attempting to seek permission to use elements of protected TCEs have two options: (1) apply directly to the Cultural Authority or (2) communicate directly with the traditional owners. One of the Authority’s many roles is to advise the traditional owners. Valid TCE users must prove they have received consent from the traditional owners via an “authorized user agreement.”

This Framework is ambitious and may provide for strong TCE protection once adopted; however, its potential impact is unknown as the laws have not yet been implemented.

== International Legal Instruments ==

The final set of laws pertaining to traditional knowledge consist of international agreements. These agreements have emerged from various international organizations, including the United Nations Education, Scientific and Cultural Organization (UNESCO), the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO) and the International Labor Organization (ILO). The types and strength of the protections they provide for TCEs vary radically; no consistent pattern or theme is discernible. They are discussed below in reverse chronological order.

=== '''[http://www.un.org/esa/socdev/unpfii/en/drip.html United Nations Declaration on the Rights of Indigenous Peoples]''' (2007) ===
The UN has been [http://www.sami.uit.no/girji/n02/en/102daes.html#Anchor-39228 investigating] the protection of minorities and indigenous populations since 1969. On 30 January 2007, the Assembly of the Union adopted a decision (Assembly/AU/ Dec. 141 (VIII)), known as the UN Declaration on the rights of indigenous peoples. 143 countries voted in favor of the Declaration. '''Australia, Canada, New Zealand''' and the '''United States''' voted against it. '''Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa''' and '''Ukraine''' abstained. The Declaration is the most comprehensive statement of the rights of indigenous peoples ever developed, giving prominence to collective rights to a degree unprecedented in international human rights law. The adoption of this instrument is the clearest indication yet that the international community is committing itself to the protection of the individual and collective rights of indigenous peoples. The key provisions follow.
===== Article 11 =====
# Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.
# States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.
===== Article 12 =====
# Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.
# States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.
===== Article 31 =====
# Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
# In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

=== [http://www.wipo.int/export/sites/www/tk/en/consultations/draft_provisions/pdf/draft-provisions-booklet.pdf WIPO Draft Provisions on Traditional Cultural Expressions/Folklore and Traditional Knowledge] (2006) ===

In 1998, the World Intellectual Property Organization (WIPO) embarked on a fact-finding mission to 28 countries to identify intellectual property-related regulations of traditional knowledge. Following a review of those materials, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) was formed in 2001. Since 2004, it has been [http://www.wipo.int/tk/en/consultations/draft_provisions/draft_provisions.html working] on draft provisions for the enhanced protection of traditional cultural expressions against misappropriation and misuse. Although the provisions are still in draft form, they are meant to serve as points of reference for ongoing policy discussions at the national, regional, and international levels.

The Draft Provisions have the following objectives: to recognize value; to promote respect; to meet the actual needs of communities; to prevent the misappropriation of traditional cultural expressions/expressions of folklore; to empower communities; to support customary practices and community cooperation; to contribute to safeguarding traditional cultures; to encourage community innovation and creativity; to promote intellectual and artistic freedom, research and cultural exchange on equitable terms; to contribute to cultural diversity; to promote community development and legitimate trading activities; to preclude unauthorized IP rights and to enhance certainty, transparency and mutual confidence. The General Guiding Principles and Substantive Principles are available [http://www.wipo.int/export/sites/www/tk/en/consultations/draft_provisions/pdf/draft-provisions-booklet.pdf here((.link_red))].

==='''[http://portal.unesco.org/culture/en/ev.php-URL_ID=33232&URL_DO=DO_TOPIC&URL_SECTION=201.html Convention on the Protection and Promotion of the Diversity of Cultural Expressions]''' (2005) ===
The Convention on the Protection and Promotion of the Diversity of Cultural Expressions builds off the earlier [http://portal.unesco.org/en/ev.php-URL_ID=13179&URL_DO=DO_TOPIC&URL_SECTION=201.html Universal Declaration on Cultural Diversity] of (2001). '''Canada, France, Germany, Greece, Mexico, Monaco, Morocco,''' and '''Senegal''' and Francophone member states of UNESCO strongly supported the Convention. The '''United States''' opposed it. 104 countries have acceded to or ratified the Convention.

The Convention recognizes "the importance of traditional knowledge as a source of intangible and material wealth, and in particular the knowledge systems of indigenous peoples, and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion." It seeks to “to reaffirm the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory” (Article 1(h)). The Convention also seeks to mitigate the dilution of culture that follows from the movement of cultural goods and services across national borders.

The Convention mentions intellectual property rights once, by recognizing "the importance of intellectual property rights in sustaining those involved in cultural creativity." The Convention is ambiguous, however, on how much protection to grant to TCEs. Article 6 lists the types of measures member states may adopt to protect and promote cultural diversity. Subsection 2(g) allows “measures aimed at nurturing and supporting artists and others involved in the creation of cultural expressions” but subsection 2(e) allows for measure that “promote the free exchange and circulation of . . . cultural expressions and cultural activities, goods and services.” Strong support for indigenous groups as creators of TCEs is not required by Article 7, as members states need only “endeavour to recognize the important contribution of artists, others involved in the creative process, cultural communities, and organizations that support their work, and their central role in nurturing the diversity of cultural expressions.”
Professor Laurence R. Helfer has [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891303 noted] that the Convention disregards the protection for TCEs that could be derived from the use of intellectual property law.

=== '''[http://www.unesco.org/culture/ich/index.php?pg=00006 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage] (2003)''' ===
In 2001, [http://www.unesco.org/culture/ich/index.php?pg=00007 UNESCO] began drafting a definition of intangible cultural heritage and formulating provisions for its protection. In 2003, the resulting Convention was adopted and in 2006 it entered into force. [http://www.unesco.org/culture/ich/index.php?pg=00024 121] countries have ratified the Convention. '''Australia, Canada, New Zealand''' and the '''United States''' have not ratified the Convention. '''Argentina, Columbia, Denmark, Indonesia, Saudi Arabia, Seychelles''' and '''the Syrian Arab Republic''' all entered declarations or reservations.

[http://www.unesco.org/culture/ich/index.php?pg=00006 Article 1] lists the purposes of the Convention as "to safeguard the intangible cultural heritage; to ensure respect for the intangible cultural heritage of the communities, groups and individuals concerned; to raise awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof; to provide for international cooperation and assistance." Although the Convention does not directly discuss intellectual property rights, [http://www.unesco.org/culture/ich/index.php?pg=00022 Article 3] notes that nothing in the Convention affects "the rights and obligations of States Parties deriving from any international instrument relating to intellectual property rights ... to which they are parties."

===== Article 11 Role of States Parties =====
Each State Party shall:
# take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory;
# among the safeguarding measures referred to in Article 2, paragraph 3, identify and define the various elements of the intangible cultural heritage present in its territory, with the participation of communities, groups and relevant nongovernmental organizations.

=== Trade-Related Aspects of Intellectual Property Rights (1994) ===
As we saw in Module 2, the 1994 [http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm TRIPS Agreement] created a set of minimum intellectual property standards for all members of the World Trade Organization. Although the Agreement requires developing countries to increase many forms of intellectual property protection, it does not mention folklore or TCEs.

After the passage of TRIPS, the UN Human Rights Commission studied its implications for human rights. In 2000, the Commission, relying on that study, adopted Resolution 2000/7 on Intellectual Property and Human Rights. The Resolution notes that “actual or potential conflicts exist between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights in relation to . . . the reduction of communities’ (especially indigenous communities’) control over their own . . . natural resources and cultural values.” It declares that “the implementation of the TRIPS Agreement does not adequately reflect the fundamental nature and indivisibility of all human rights, including . . . the right to self-determination. There are apparent conflicts between the intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and international human rights law, on the other.” The Sub-Commission urged national governments, intergovernmental organizations, and civil society groups to give human rights primacy over the economic policies and agreements. Since the passage of the 2000/7 Resolution, Human Rights bodies at the UN have investigated the relationship between intellectual property law and human rights, as discussed by Lawrence Helfer in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891303 this article((.link_green))].

=== '''[http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169 ILO Convention 169 on Indigenous and Tribal People]''' (1989) ===
The International Labor Organization, a special agency under the auspices of the UN, was the first international organization to attempt to define indigenous populations and to declare the rights of such populations. ILO Convention No. 169 replaced [http://www.ilo.org/ilolex/cgi-lex/convde.pl?C107 ILO Indigenous and Tribal Populations Convention No. 107] (1957) that had been ratified by six African States. Although no African states have yet [http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169 ratified] ILO Convention 169, the [http://www.ilo.org/indigenous/Resources/Publications/lang--en/docName--WCMS_115929/index.htm ILO and the African Commission on Human and Peoples’ Rights] view this instrument as an inspiration and a reflection of a trend towards the protection of indigenous rights globally and in Africa.

The 169 Convention focuses on indigenous peoples’ rights to control their own institution, economic development, customs and belief systems. It applies to "tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations" and to "peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions." [http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169 Article 1]. The Convention does not mention intellectual property rights, but seeks to protect indignous culture and recognizes the collective ownership that characterizes many indigenous populations.
===== Article 4(1) =====
Special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned.
===== Article 5 =====
# the social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals;
# the integrity of the values, practices and institutions of these peoples shall be respected;
# policies aimed at mitigating the difficulties experienced by these peoples in facing new conditions of life and work shall be adopted, with the participation and co-operation of the peoples affected.
===== Article 13 =====
# In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.

=== '''[http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html Berne Convention for the Protection of Literary and Artistic Works] (1979)''' ===
Although the Berne Convention (discussed at length in Module 2) does not mention traditional knowledge, Article 15(4) can be interpreted to leave to the discretion of each member country how (if at all) to protect TCEs.
===== Article 15(4) =====
# In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.

=== '''[http://www2.ohchr.org/english/law/cescr.htm International Covenant on Economic, Social and Cultural Rights]''' (1966) ===
The International Covenant on Economic, Social and Cultural Rights (ICESCR) establishes a right to the protection of the moral and material interests resulting from any scientific, literary or artistic production. ICESCR has 160 [http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en parties], 69 of which are signatories.
[https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=48+Am.+U.L.+Rev.+769&srctype=smi&srcid=3B15&key=353d9e7da6d89fd06493aaddf1e8606b Read.] In conjunction with the 1948 Universal Declaration of Human Rights, and recognizing the binding nature of the treaty upon its signatories, the ICESCR can be [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891303 interpreted] as guaranteeing intellectual property rights as a human right. In 2005, the Committee on Economic, Social and Cultural Rights (CESCR) [http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/E.C.12.GC.17.En?OpenDocument commented] on Article 15 of the ICESCR (reproduced below), expanding it to protect indigenous groups' expressions of cultural heritage. CESCR calls upon signatories to adopt protective measures that "recognize, register and protect the individual or collective authorship of indigenous peoples under national intellectual property rights regimes and should prevent the unauthorized use of scientific, literary and artistic productions of indigenous peoples by third parties."

===== Article 15=====
# The States Parties to the present Covenant recognize the right of everyone:
## To take part in cultural life;
## To enjoy the benefits of scientific progress and its applications;
## To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
# The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
# The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

==='''[http://www2.ohchr.org/english/law/ccpr.htm International Covenant on Civil and Political Rights]''' (1966)===
The International Covenant on Civil and Political Rights (ICCPR) recognizes the self determination of minority groups and their right to control their culture. The ICCPR has 165 [http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en parties], 72 of which are signatories. Although the ICCPR is silent on most cultural and intellectual property rights issues, [https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=48+Am.+U.L.+Rev.+769&srctype=smi&srcid=3B15&key=353d9e7da6d89fd06493aaddf1e8606b considered] in conjunction with the 1966 International Covenant on Economic, Social and Cultural Rights and the 1948 Universal Declaration of Human Rights, the ICCPR can be viewed as establishing intellectual property rights as human rights.

=====Article 1 =====
# All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

=====Article 27 =====
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

=== '''[http://www.un.org/en/documents/udhr/index.shtml Universal Declaration of Human Rights] (1948)''' ===
The Universal Declaration of Human Rights (UDHR) establishes the right to the protection of moral interests and materials deriving from any scientific, literary or artistic production. The UDHR is not a binding document, but it is a foundational document for the United Nations and for the two 1966 Covenants, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.

Although the UDHR does not address intellectual property rights, [http://www.un.org/en/documents/udhr/index.shtml Article 27] of the UDHR recognizes the "moral and material interests" of authors and inventors and the right of the public “to enjoy the arts and to share in scientific advancement and its benefits.” This article expresses the challenge of balancing private intellectual property rights and a vibrant public domain.

===== Article 17 =====
# Everyone has the right to own property alone as well as in association with others.
# No one shall be arbitrarily deprived of his property.
===== Article 27 =====
# Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
# Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

== Policy Arguments ==

As indicated above, the questions of whether and how to protect traditional knowledge are currently being debated and are highly controversial. At the international level and within many individual countries, strong differences of opinion can be found. Set forth below are summaries of the primary arguments made in this debate.

===Why Protect TK? ===

'''Arguments from Personhood'''. For many indigenous groups, TK encompasses cultural elements that are integral to the group's sense of identity. One can argue that objects and expressions that are fundamental to a person's or group's identity merit protection, and at the extreme, could be considered inalienable. Similarly, some advocates for TK protection have proposed a "cultural stewardship" justification for this protection. For example, Kristen Carpenter, Sonya Katyal and Angela Riley advocate allowing indigenous communities to retain control, if not exclusive access and ownership, of TK because of its importance in shaping the identity of the indigenous group and its culture.

Closely related to arguments from personhood are arguments from moral rights, which we discussed in Module 4. It is argued, just as an individual artist should enjoy a right of attribution and integrity with respect to her creations, so should a community enjoy a right of attribution and integrity with respect to its collective creations.

'''Arguments based on Preservation'''. Another reason to advocate for protection of TK is that unlike many forms of intellectual property, cultural expressions may require protection in order to preserve their value. For example, religious ceremonies and sacred rituals may be valuable to a culture in part because they are not widespread; their rarity is integral to their place in the culture. In order to maintain the value of these traditions, it may be necessary to restrict their use.

'''Arguments based on Reparations'''. A third argument in favor of protection for TK is based upon the idea that many indigenous cultures have been damaged by invasive colonialism practiced by Western countries in the past few centuries. Supporters of this argument believe that protection of TK is a way of providing reparations, symbolic as well as monetary, for the wrongs committed against these indigenous groups.

=== How Should TK be protected? ===

==== Traditional IP Modes of Protection ====

'''Copyright'''

As we have seen, many nations have used copyright law (either alone or in conjunction with ''sui generis'' laws) to protect TK. However, there are many arguments against using standard copyright to protect TK.

#''The fixation requirement.'' Some copyright systems require that a work be fixed in a material form. This is an obstacle in the protection of TCEs, which are not always manifested in tangible expressions.
#''Originality.'' Copyright law requires that a work be "original" in order to merit protection. Since most TK is "traditional" rather than new, this originality requirement will often be difficult to satisfy.
#''Authorship.'' Much cultural expression develops gradually over time, through the contributions of several members of a community. If no single author or group of authors can be identified, it will be difficult for copyright protection to be obtained.
#''The term of protection.'' The term of protection for copyright in most countries is traditionally limited, and not infinite. Many forms of TK are in fact older than the copyright term. As a result, copyright protection may be unavailable for them.

To avoid these difficulties, it is possible for countries to modify copyright legislation so that it has different requirements for folklore or cultural expression. For example, the [http://portal.unesco.org/culture/en/ev.php-URL_ID=31318&URL_DO=DO_TOPIC&URL_SECTION=201.html Tunis Model Law for Copyright in the Developing Countries], adopted in 1976, advocates extending copyright protection to works of folklore without requiring fixation and with an unlimited term of protection.

'''Trademark Law'''

Some expressions of folklore might be registered as trademarks. Trademark law protects not only graphic representations, but also words and (in some countries) sounds. An advantage of protection through trademark law is its near indefinite term of protection, and its lack of a novelty requirement; it is sufficient for purposes of protection that the trademark has a "distinctive character." However, at least in some countries, trademark protection, unlike copyright and patent protection, requires that the applicant demonstrate use of the mark in commerce. Many cultural expressions do not have a direct link to commerce and are not used as designations of source to the consuming public. Furthermore, the application of trademark law to TK is complicated, since by registering a mark the community makes public TK that the community may desire to keep secret for religious or other reasons.

'''Collective Trademarks, Certification Marks, and Geographic Indicators'''

Collective trademarks, certification marks, and geographic indicators form a subset of trademark law that could be particularly useful for the protection of TK. Collective trademarks are trademarks that are used by a group of producers rather than one producer. Collective marks are held by an association rather than an individual; in order to be useful for protecting TK, members of indigenous groups would need to form an association for the purpose of marking their cultural expressions.

Certification marks indicate that the producer of a good has met certain standards of quality. (A popular example is the [http://www.goodhousekeeping.com/product-testing/history/welcome-gh-seal Good Housekeeping] certification prominent on household products sold in the United States.) Certification marks could be used to specify which TCEs meet the standards of the indigenous community in which they originated. This, like a collective trademark, would require the formation an official oversight organization to act on behalf of the indigenous community in determining which expressions can bear the certification mark.

Geographic indicators, as the name suggests, are marks that can be placed on products that come from a specific geographic area. Geographic indicators are often used for food products, such as wines, but some indigenous groups have experimented with using geographic indicators as a means of protecting cultural expressions by authenticating products that are sold elsewhere. One example of such a program is the Alaskan [http://www.eed.state.ak.us/aksca/Native.htm Silver Hand Program].

'''''Sui Generis'' Laws'''

As we have seen, where TK does not map onto traditional intellectual property regimes, ''sui generis'' laws may be adopted. ''Sui generis'' legislation is a promising route for advocates of TK protection, as it can provide strong protection while avoiding the hurdles that separate TK from traditional IP subject matter.

===='''Absolute Ownership'''====
One possibility for TK protection is to give absolute ownership of the cultural expression to the indigenous group from which it originated. However, this is relatively unpopular option, as it would impede the spread of knowledge and risk the loss of cultural expressions and information in the event that the group is disbanded or its members are assimilated into the general population.

===='''Negotiation and Mutual Respect'''====
Michael Brown argues that the law should, at most, foster "negotiation and mutual respect" between indigenous cultures and those who seek to employ a culture's traditional expressions. This approach would give indigenous groups much less protection, but would facilitate, he argues, beneficial cultural interchange.

===='''International Human Rights'''====
Other scholars, such as Laurence R. Helfer, approach the issue as one of Human Rights. They advocate granting TK protection that is fair and balanced and not overreaching. Their ambition is to balance the needs of indigenous groups and the benefits of a robust public domain.

In this vein, [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1414900 Duncan M. Matthews] points out that "a human rights approach takes what is often an implicit balance between the rights of inventors and creators and the interests of the wider society within intellectual property paradigms and it makes it far more explicit and exacting.... [T]he rights of the creator are not absolute but conditional on contributing to the common good and welfare of society.... [B]ecause a human rights approach also establishes a different and often more exacting standard for evaluating the appropriateness of granting intellectual property protection, in order for intellectual property to fulfill the conditions necessary to be recognised as a universal human right, intellectual property regimes and the manner they are implemented first and foremost must be consistent with the realisation of the other human rights, particularly those enumerated in the Covenant."

===='''System of Domain Public Payant'''====
The doctrine of domain public payant, advocated by the [http://portal.unesco.org/culture/en/ev.php-URL_ID=31318&URL_DO=DO_TOPIC&URL_SECTION=201.html Tunis Model Law] and discussed at WIPO's 1999 Round Table on IP and TK [http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=1192 (section 3 b of the Round Table minutes)], advocates payment of royalties for works, including TCEs, that are in the public domain because they do not qualify for protection under traditional intellectual property law. This would provide monetary compensation for indigenous communities, but would not be a satisfactory solution for communities whose priority is control over their TCEs rather than remuneration. For more on different versions of domain public payant, see the UNESCO Copyright Bulletin from 1994.

=== Why not protect TK? ===

Some observers think that legal protection for traditional knowledge is highly problematic. Here are some of their arguments:

'''TK does not map onto IP law easily'''. As indicated above, traditional cultural expressions are often not put into a fixed form, are not "original," and do not have a defined author -- three requirements for copyright protection. Furthermore, as indicated above, most expressions of folklore are not used in commerce as a means of identifying their source, and so would not be eligible for trademark protection. Finally, patent law may not be available to protect TK because by definition, TK has been used and passed down through generations, and this type of prior public use may preclude patent protection, as least if it is publicly recorded. Thus, it appears that certain attributes of TK make it a difficult fit with all three of the major types of intellectual property law. Additionally, protection for TK does not fit well with the principal goals underlying the protection of intellectual property law. There is little evidence that protection of TK is necessary to incentivize the creation of cultural expression, as other factors have successfully motivated the creation of these expressions for millennia. Furthermore, the labor-desert theory does not easily fit with TK protection, as those who created the traditional expression are either unidentifiable because the expression was the product of collaboration, or in some cases, long dead. Current members of the culture do not have as strong a claim for protection from a labor-desert perspective.

'''Protection of TK would involve perpetuation of illiberal social hierarchies and oppressive customs within indigenous groups'''. Another argument against providing protection for TK is that doing so may perpetuate inequality and oppression within indigenous groups. When an indigenous group is given the right to control the use of TK, the powerful members of that indigenous group may benefit at the expense of the group's minorities. Paul Kuruk argues that protection of TK may further the oppression of women and subordinated social and economic groups within an indigenous culture.

'''Protection of TK may deprive the world community of valuable knowledge'''. Some might argue that principles of liberal democracy dictate that knowledge should be freely shared rather than restricted to certain people or groups. Protection of TK might deprive outsiders of a chance to benefit from the traditions, medicinal or otherwise, of an indigenous culture. When advancing this argument, however, one should keep in mind that principles of liberal democracy, while widely accepted in the Western world, are not necessarily an agreed-upon starting point for this debate.

'''Increase awareness rather than changing the law'''. Some organizations have advocated protection of TK through nongovernmental organizations and projects rather than through legislation. For example, the Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage has compiled a [http://www.unesco.org/culture/ich/index.php?pg=00011#list List of Intangible Heritage in Need of Urgent Safeguarding((.link_green))]. UNESCO lists projects for safeguarding intangible cultural heritage in African countries [http://www.unesco.org/culture/ich/index.php?pg=00176 here]. Finally, groups of academics and activists have created community standards for those, such as anthropologists, whose work impacts indigenous cultures and may involve sensitive issues of disclosure of TK.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

==[[Image:casestudy.png|50px|]] Back to the case study ==

Nadia should make Angela aware of the various types of national intellectual property laws that could apply to this situation. For example, in their country traditional dances might be protected under copyright or ''sui generis'' statutes. However, those laws would only apply within their country, not to the distribution of the Madonna video in other countries. Nadia should also make Angela aware of regional organizations of which their country may be a member. Finally, Nadia could help equip Angela to advocate for protection of her community's traditional cultural expressions by making her aware of the policy recommendations and reports of international organizations, such as WIPO, and the relevant committees that may be proposing draft legislation on traditional knowledge in the near future.

</div>

==[[image:resource.png|50px|]] Additional resources ==

=== '''In General''' ===

:Silke Von Lewinski Ed., Indigenous Heritage and Intellectual Property (2d. 2008).

:[http://www.wipo.int/tk/en/folklore/creative_heritage/ WIPO's Database] contains existing codes, guides, policies, protocols and standard agreements relating to the recording, digitization and dissemination of intangible cultural heritage, with an emphasis on intellectual property issues.

:[http://www.williams.edu/AnthSoc/native/index.htm Who Owns Native Culture by Michael F. Brown((.link_green))] is a good resource for understanding current debates about the legal status of indigenous art, music, folklore, biological knowledge and sacred sites.

:[http://www.iprsonline.org/resources/tk.htm#2006 Intellectual Property Rights Online((.link_green))] is a compendium articles about Traditional Knowledge and Cultural Expressions

:[http://www.aca2k.org/index.php?option=com_content&view=article&id=174&Itemid=60&lang=en The African Copyright & Access to Knowledge Project (ACA2K)((.link_red))] probes the relationship between national copyright environments and access to knowledge in African countries.

:[http://www.wipo.int/tk/en/studies/cultural/expressions/preface/index.html National Experiences with the Protection of Traditional Cultural Expressions/Expressions of Folklore: Preface((.link_green))]

:[http://www.wipo.int/tk/en/folklore/ WIPO's resources on Traditional Cultural Expressions (Folklore)((.link_green))]

:[http://www.wipo.int/tk/en/folklore/culturalheritage/index.html Creative Heritage Project: Strategic Management of IP Rights and Interests((.link_green))] lists resources for developing best practices and surveys existing practices, protocols and policies.

:[http://www.caslon.com.au/ipguide14.htm Resources on Indigenous Cultures and Cultural Property] is a searchable database of codes, guides, policies, protocols and agreements relating to IP and the digitization of ICH. It also includes short case studies presenting informal summaries of best practices, multimedia materials, articles, laws and other resources.

:[http://docs.google.com/viewer?a=v&q=cache:YpXBL2B8YW4J:www.iipi.org/speeches/newyork011404.pdf+what+are+sui+generis+laws+WIPO&hl=en&gl=us&sig=AHIEtbT-vKUx386Lbgxl_JtZO798bxHrrw Is a Sui Generis System Necessary?] reviews traditional IP laws and outlines potential problems with sui generis systems.

:[http://www.wipo.int/tk/en/laws/tk.html WIPO] list of legislative texts on the protection of TK.

:[http://www.wipo.int/tk/en//studies/cultural/minding-culture/studies WIPO case studies of appropriated traditional cultural expressions((.link_green))]

=== '''Examples of Nation Specific Rules Governing Traditional Knowledge''' ===

: [http://www.wcl.american.edu/pijip/go/news/professor-peter-jaszi-authors-report-on-protection-of-the-traditional-arts-in-indonesia Peter Jaszi, "Traditional Culture: A Step Forward for Protection in Indonesia" (2009)((.link_green))]

: Lauryn Grant, "The Protection of Traditional or Indigenous Knowledge," SJ049 ALI-ABA 469 (2004).

:Paul Kuruk, "Goading a Reluctant Dinosaur: Mutual Recognition Agreements as a Policy Response to the Misappropriation of Foreign Traditional Knowledge in the United States," 34 Pepp. L. Rev. 629 (2007).

: Paul Kuruk , "The Role of Customary Law Under ''Sui Generis'' Frameworks of Intellectual Property Rights in Traditional and Indigenous Knowledge," 17 Ind. Int'l & Comp. L. Rev. 67 (2007).

:Paul Kuruk, "Protecting Folklore Under Modern Intellectual Property Regimes: A Reappraisal of the Tensions Between Individual and Communal Rights in Africa and the United States," 48 Am. U. L. Rev. 769 (1999).

:Stephen R. Munzer, Kal Raustiala, "The Uneasy Case for Intellectual Property Rights in Traditional Knowledge," 27 Cardozo Arts & Ent. L.J. 37 (2009).

:[http://en.wikipedia.org/wiki/Native_American_mascot_controversy Wikipedia site] on the United State's Native American Mascot Controversy.

=== '''Examples of Regional Codes Governing Traditional Knowledge''' ===

:Adebambo Adewopo, "The Global Intellectual Property System and Sub-Sahara Africa: A Prognostic Reflection," 33 U. Tol. L. Rev. 749 (2002).

:[http://www.oapi.wipo.net/en/OAPI/index.htm African Intellectual Property Organization (OAPI)]

:[http://www.aripo.org/ African Regional Intellectual Property Organization (ARIPO)]

:[http://www.comunidadandina.org/endex.htm Andean Community]

:[http://untreaty.un.org/unts/144078_158780/12/10/5009.pdf Common Market of the South (MERCOSUR)]

:[http://www.forumsec.org/index.cfm Pacific Islands Forum Secretariat]

=== '''International Legal Instruments''' ===
:Laurence R. Helfer, "Toward a Human Rights Framework for Intellectual Property," 40 U.C. Davis Law Review 971 (2007).

:[http://www.wipo.int/export/sites/www/tk/en/igc/ngo/ciel_gap.pdf A critique of WIPO's Draft Principles from a coalition of indigenous groups((.link_red))]

=== '''Policy Arguments''' ===
:Megan Carpenter, Intellectual Property Law and Indigenous Peoples: "Adapting Copyright Law to the Needs of a Global Community," 7 Yale Hum. Rts. & Dev. L.J. 51 (2004).

:Patty Gerstenblith, "Identity and Cultural Property: The Protection of Cultural Property in the United States," 75 B. U. L. REV. 559, 570 (1995).

:Lorie Graham and Stephen McJohn, "Indigenous Peoples and Intellectual Property," 19 WASH. U. J.L. & POL’Y 313 (2005).

:Kristen A. Carpenter, "Real Property and Peoplehood," 27 Stan. Envtl. L.J. 313, 345-51, 355-57 (2008).

:Paul Kuruk, "Promoting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights in Africa and the US," 48 Am. U. L. Rev. 769 (1999).

:Anupam Chander & Madhavi Sunder, "The Romance of the Public Domain," 92 California Law Review 1331 (2004).

:Kristen A. Carpenter, Sonia Katyal, and Angela Riley, "In Defense of Property," 118 Yale L.J. 1022 (2009).

== [[image:question.png|50px|]] Assignment and discussion questions ==

'''[[image:assignment.png|50px|]]Assignment'''

Answer one of the following questions:

1. Should intellectual property protection of any sort be granted to traditional knowledge?

2. Assuming some sort of intellectual property protection for traditional knowledge is appropriate, which of the many legal systems discussed in this module is the best?

'''[[image:discussion.png|50px]]Discussion Question(s)'''

Select one of the answers that your colleagues provided to the Assignment questions, and comment on it. Explain why you agree or disagree.

== Contributors ==

This module was created by [[Contributors#cox|Emily Cox]], [[Contributors#Abaker|Adrienne Baker]], [[Contributors#arothstein|Ariel Rosthstein]], and [[Contributors#weiler|Miriam Weiler]]. It was then edited by [[Contributors#fisher|William Fisher]].

{{NavFooter}}

Introduction

2011-05-24T13:30:08Z

Thackett: /* Cultural Theory */

__TOC__

==Copyright Theory==

Before plunging into the details of copyright law, some users may find it helpful to consider the general theories that underlie the copyright system. What’s the purpose of copyright? How you answer that question may affect, not merely your overall attitude toward this entire body of law, but also your views concerning how individual rules should be interpreted or modified.

Scholars have developed four theories of copyright law. They are not mutually exclusive. Indeed, courts and legislators frequently appeal simultaneously to two or more of the theories. But they grow out of different traditions in philosophy and political theory, and they have different implications for how the law should be shaped. So, at least for analytical purposes, it is helpful to keep them separate.

===Fairness===

The heart of the first theory is the principle that the creators of literature, art, and other original works deserve either to control their creations or to be rewarded for their efforts. In other words, creators have moral entitlements that the law should recognize and enforce. Put slightly differently, to deny legal protection to creators would be unfair.

There are several variants of this general approach. The most fully developed is the so-called “labor-desert” theory derived from the writings of the British philosopher, John Locke. In Chapter 5 of his Second Treatise of Government, Locke argued that a person who labors upon a plot of land that is owned “in common” acquires a natural right to that land – a right that a government, once it is formed, has a duty to “settle” and respect.

Much of the force of Locke’s argument derives from the intuitive appeal of the story upon which it is based. I come upon a tract of wild, uncultivated land that no one person yet owns. I work hard to remove the stones, trees, or prairie grass. I plow the land and plant seeds. I nurture the plants until they mature. Finally, I harvest the crops and use them to sustain myself and my family. Surely it would be wrong if an interloper, who has done nothing to make the land productive, could now oust me. Locke offered various more formal arguments – some of them grounded in Christian theology – to buttress this moral intuition, but the story itself gives Locke’s theory most of its enduring power.

An important group of scholars argue that Locke’s argument has even greater force when applied to works of the intellect (literature, art, and so forth) than it does when applied to land. The raw material used to generate a novel (paper and a few pencils) has little value; by far the most important input to the value of the finished novel is the novelist’s intellectual labor. The novelist’s moral right to control the novel is thus even stronger than the moral right of the farmer to the land he has cultivated. Moreover, unlike crops, novels do not rot. Thus, we need not worry that, by giving a property right to the novelist, we will cause socially valuable products to go to waste.

To be sure, scholars who find Locke’s argument persuasive encounter some difficulties when applying it to copyright law. For example, exactly what sorts of intellectual “labor” give rise to moral entitlements? Just sitting in front of a desk for hours attempting to write? Only highly “creative” labor? Does the fact that a particular novelist loves her work strengthen or weaken her moral rights? Is it possible that, by awarding an expansive set of legal rights to one novelist (for example, by forbidding others to write novels with closely similar plots) we may reduce the creative opportunities available to other potential novelists? If so, does that impair the moral claims of the first novelist? Scholars have wrestled with these and other complications – and will likely continue to do so in the future. (As we will see, the fairness theory is not unique in this regard. All of the copyright theories run into difficulties and complications.)

Another variant of the fairness approach is sometimes called “equity theory.” It is less elaborate but, according to social psychologists, enjoys even broader appeal. The core of equity theory is the notion that each contributor to a collective enterprise deserves a share of the fruits of that enterprise proportionate to the magnitude of his or her contribution. This has important implications for copyright law. For example, it would suggest that the law should be organized to ensure that each of the many people who help make a movie – from the stars to the “key grips” – get a share of the proceeds proportionate to her or her contribution. As we will see, it is not at all clear that the current law has this effect.

===Welfare===

The second of the four arguments grows out of the philosophic tradition of utilitarianism. The central principle of that tradition is that the law should be organized to maximize total human welfare. (Many ambiguities lurk in that simple statement, but we will put them to one side.) The way in which that principle is most often applied to copyright law is as follows:

Novels and other intellectual creations fall into a small but important category of products that economists refer to as “public goods.” The defining characteristics of public goods are that they are “nonrivalrous” (meaning that they can be enjoyed by an unlimited number of people) and “nonexcludable” (meaning that once they are made available to one consumer, it is very difficult to prevent other consumers from gaining access to them). These characteristics make public goods socially valuable, but they also create a danger: Potential producers of them will not produce them because they fear that they will be unable to earn any money. For example, a potential novelist may decide not to write a novel, because she anticipates that, once the first copy is sold, other publishers will make millions of additional copies and sell them for pennies, preventing the novelist from earning any money. Confronted with this hazard, the novelist may decide to become a banker, and the world will be forever deprived of the benefits of the novels she might have written. To maximize social welfare, the government must somehow create an incentive for the novelist to write novels. There are many ways that the government might do so, but one technique is to grant the novelist exclusive rights to reproduce and sell her novels. Protected against competition, she can charge enough money for her books to enable her to earn a living – and keep writing. That, in brief, is what copyright law does.

Seen from this perspective, copyright law has important social benefits, but also has a social cost. The reason is that, by empowering the novelist to raise the price of her books well above the low level that would have been generated through free competition, copyright law prevents readers who cannot afford the higher price from obtaining and reading the novel. The result is to reduce the welfare of those consumers and thus reduce, to some extent, total social welfare. The implication of this insight is that copyright protection should only be extended to types of intellectual products that would not be produced in the absence of the financial incentives that the copyright system provides.

If we applied this guideline conscientiously, which types of works would we include? It’s hard to say, because creators’ motives vary. But roughly speaking, we should be especially willing to extend copyright protection to kinds of products that are costly to produce, easy to copy, and benefit many people other than the immediate consumers. Movies and computer software might be examples. By contrast, we should at least hesitate before granting copyright protection to kinds of products that are inexpensive to produce or whose creators are especially sensitive to nonmonetary incentives (such as the desire for fame or the hope of being awarded tenure in a university) that do not depend on copyright law.

===Personhood===

The third theory is derived from the writings of Kant and Hegel. It is weaker in so-called “common law” legal systems (such as the United Kingdom, the United States, Canada, and Australia) than it is in so-called “civil law” legal systems (found in the countries of continental Europe and the countries of Africa and Latin America whose legal systems were originally patterned on those of continental Europe).

The central idea of this theory is that intellectual products are manifestations or extensions of the personalities of their creators. A painter or novelist defines herself in and through her art. The legal system, sensitive to this phenomenon, should grant artists the power to control uses or modifications of their creations. Why exactly? Either because injuries to those creations cause corresponding injuries to the creators – which the law should seek to prevent or redress. Or because giving creators this control is necessary to establish a general social environment in which artists can establish and maintain their identities.

This theory provides especially strong support for the aspects of copyright law known as “moral rights.” We will consider moral rights in detail in Module 4. As you will see, moral rights include a right to be given credit for things you have created (and not to be blamed for things you have not created) and a right to prevent the mutilation or destruction of your creations.

===Culture===

The fourth of the theories is as yet the least influential but seems to be gaining strength. Its key ideas are that human nature causes people to flourish more under some conditions than under others, and that social and political institutions should be organized to facilitate that flourishing.

What, more specifically, are the conditions or “functionings” that enable people to flourish? The lists offered by the philosophers and psychologists working in this tradition vary somewhat, but the following would meet with the approval of most:

*Life
*Health
*Bodily integrity – protection against physical hazards and against physical and sexual assault
*Autonomy – in the sense of the ability to choose freely one’s vocations and avocations
*Competence – the ability to confront and solve problems
*Engagement – active involvement in professional and leisure activity, as opposed to passive consumption of goods and services
*Self-expression – the ability to speak one’s mind and express one’s creative impulses
*Relationships – participation in freely chosen communities
*Privacy – access to zones of intimacy in which relationships can be nurtured and identity developed

Properly shaped, copyright law can help foster a culture that enables most people to live lives of this sort. For example, it can help promote a rich artistic tradition, support a strong educational system open to everyone, encourage people to modify the cultural goods they consume, and (last but not least) increase access to knowledge through a strong and universally accessible library system. Poorly constructed, copyright law can impair all of these values -- curb artistic innovation, frustrate the efforts of teachers to design and deliver pedagogically sound materials, discourage user modifications of cultural goods, and make the operation of libraries more costly and difficult. A great deal thus depends upon how copyright law is formulated and applied.

==Additional Resources==

The literature on copyright theory is vast, but unfortunately relatively little of it is available online. The following is a reasonably representative set of materials. Many more sources can be found in the footnotes to these articles.
:
====Overviews====

[http://cyber.law.harvard.edu/people/tfisher/iptheory.pdf William Fisher, "Theories of Intellectual Property,"((.link_green))] in Stephen Munzer, ed., New Essays in the Legal and Political Theory of Property (Cambridge University Press, 2001) ([http://cyber.law.harvard.edu/people/tfisher/iptheorychinese.pdf Chinese translation], by Haifeng Huang, in Chinese Intellectual Property Review 1 (2002): 1.)

[http://cdn.law.ucla.edu/SiteCollectionDocuments/faculty/shiffrin-intellectual%20property.pdf Seanna Shiffrin, Intellectual Property,((.link_red))] in A Companion to Contemporary Political Philosophy (edited by Robert Goodin, Philip Pettit, and Thomas Pogge, Blackwell, 2007).

====Fairness Theory====

[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1323408 Robert Merges, "Locke for the Masses: Property Rights and the Products of Collective Creativity (2009)((.link_green))]

[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=916110 Alfred C. Yen, "Restoring the Natural Law: Copyright as Labor and Possession,"((.link_green))] Ohio State Law Journal 51 (1990): 517

====Welfare Theory====

[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=741424 Peter Menell and Suzanne Scotchmer, "Intellectual Property,"((.link_green))] chapter in Handbook of Law and Economics, edited by A. Mitchell Polinsky and Steven Shavell (2007) (with S. Scotchmer)

[http://www.hup.harvard.edu/catalog/LANECI.html William Landes and Richard Posner, The Economic Structure of Intellectual Property Law] (Harvard University Press 2003)

[https://www.law.duke.edu/shell/cite.pl?57+Duke+L.+J.+1693 Joseph E. Stiglitz, "Economic Foundations of Intellectual Property Rights"((.link_green))] (2003)

[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=226404 Steven Shavell and Tanguy Van Ypersele, "Rewards versus Intellectual Property Rights"] (1999)

====Personhood Theory====

[http://www.press.uchicago.edu/presssite/metadata.epl?mode=synopsis&bookkey=3632118 Margaret Jane Radin, Property and Personhood] (1993)

Justin Hughes, "The Philosophy of Intellectual Property," 77 Georgetown Law Review 287 (1988)

====Cultural Theory====

[http://www.history.ox.ac.uk/ecohist/readings/ip/netanel.htm Neil Netanel, "Copyright and a Democratic Civil Society,"((.link_green))] 106 Yale Law Journal 283 (1996)

Madhavi Sunder, iP (forthcoming, Yale University Press)

[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1601484 William Fisher, "The Implications for Law of User Innovation,"((.link_green))] Minnesota Law Review, Vol. 94, No. 5, 2010

== Contributors ==

This module was drafted by [[Contributors#fisher|William Fisher]].

{{NavFooter}}

Module 5: Managing Rights

2011-05-24T13:23:42Z

Thackett:

==[[Image:key.png|50px|]] Learning objective ==

This module describes the legal rules that affect the ability of copyright holders to collect revenue from users of their works -- and how librarians can either use those rules to their best advantage or seek to change them.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

== [[Image:casestudy.png|50px|]]Case study ==

Nadia previously helped Angela identify several items that Angela is permitted to include without permission in the packet of course materials she is preparing for her students. Angela now wants Nadia's help in obtaining permissions for the remaining materials. Specifically, she asks Nadia:
* What activities may be covered by licenses the library has already obtained from publishers or collecting societies?
* For the activities that require a separate license, what clauses should I negotiate?
* How should I handle those materials whose authors cannot be identified or located?

</div>

==[[Image:lesson.png|50px|]] Lesson ==
== Individual management ==

====Licenses and Assignments====

Remember that a copyright gives the copyright holder several exclusive rights with respect to the copyrighted work. Copyright holders commonly use '''licenses''' to authorize other people to engage in the activities covered by those rights. Often, though not always, the copyright owner will demand a fee in return for granting such a license. A typical license will specify the following:

* the authorized use (e.g., reproduction, the preparation of derivative works, public performances);
* the duration of the authorization (e.g. one year);
* the nature of the authorization (e.g. exclusive or non-exclusive);
* the fee related to the transaction (e.g. a flat fee or a fee proportional to the number of copies or of uses);
* the format or media type (e.g. print only or also digital; text only or also in another media, such as a recording or a film);
* the audience and location (e.g. a particular country, the premises of the library, the classroom, a distance learning course).

Sometimes the copyright holder and the prospective licensee negotiate the license directly. At other times, a license may be offered by the copyright holder in a standard form to all potential users. In such circumstances, individual users may have little or no power to negotiate modifications of the license terms.

Some licenses are exclusive. In other words, the licensor agrees not to permit any other party to engage in the activities covered by the license. Others are non-exclusive, meaning that the licensor remains free to permit other parties to engage in the same activities.

An '''assignment''' occurs when a copyright holder permanently transfers some or all of his exclusive rights to another party. For example, historically publishing contracts for books and articles have often required the author to assign all rights to the publisher. (More recently, many authors have resisted assigning the copyrights in their works as part of a publishing agreement. The Scholarly Publishing & Academic Resources Coalition (SPARC) has created a model addendum for publishing contracts that allows authors to retain the copyrights to their works, while licensing publishers to make specific uses of those works. More information about the SPARC Author Addendum can be found [http://www.arl.org/sparc/author/addendum.shtml here((.link_green))].)

A few countries allow the authors of certain types of works to "recapture" the rights associated with a copyright that has been assigned or licensed after a set period of time, subject to certain limitations. To recapture the copyright, the author or her heirs must comply with formal notice requirements. For example, U.S. law contains two provisions addressing the recapture of copyrights. (17 U.S.C. sections 203, 304.) When and how a copyright can be recaptured depends upon a number of factors, including when the work was created, who signed the agreement licensing or assigning the work, when the agreement was signed, and whether the work has been published. Creative Commons has created a [http://labs.creativecommons.org/demos/termination/ tool] to help authors and their heirs determine when or if a copyright can be recaptured. Canada and Australia have recapture systems that differ substantially in their details but embody the same general principle. Belgium and Sweden use a different approach; in those countries, certain kinds of assignments lapse if the rights that have been granted are not exercised.

Copyright holders are generally permitted to divide and license the rights to different uses of their work as they please. However, the copyright laws in some countries limit the freedom of contracting for copyrighted works or contain specific provisions regulating transactions involving copyrighted works. For instance, some countries require licenses or assignments to be in writing and to describe the terms of use specifically, or else the license or assignment will be invalid.

The degree to which the terms of a license are negotiable depends on the type of work at issue and the bargaining power of the licensor and licensee. Potential licensees can sometimes increase their bargaining power by acting collectively. For example, a consortium such as eIFL.net, by pooling the resources of many libraries, has much more power than its individual members. Click here to learn more about [http://www.eifl.net/faq/eifl-licensing eIFL.net Model licenses((.link_green))].

====Licenses in the Digital Environment====

Many online and electronic resources are now subject to electronic licenses. One common form of electronic license is called a '''unilateral or shrinkwrap''' license because it comes with prescribed terms and is rarely subject to modification. Unilateral licenses are most often used by licensors of software products. (The term "shrinkwrap" comes from the plastic wrapping often found on software boxes; the original shrinkwrap licenses provided that removing the wrapping constituted acceptance of the terms of the license printed on the box or contained within it.) The enforceability of these licenses will be discussed in more detail in [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_9:_Activism Module 9].

Another common form is called an end-user license agreement (EULA) or '''browsewrap''' license. EULAs are frequently used by the licensors of online content. EULAs allow prospective licensees to read the terms of the license on the licensor’s website. If they decide they want to use the licensor’s product or service, they enter into the license by clicking on a button stating “I Agree.” Some licenses do not even require a “click” (the electronic manifestation of a signature), but instead presume that use of the licensor's website is sufficient to demonstrate a tacit acceptance and thus form a license.

Shrinkwrap licenses and EULAs are often limited to the specific user of the material, and do not extend to an organization of which the user may be a member. Both shrinkwrap licenses and EULAs contain pre-set terms, and are almost always non-negotiable.

While many legal systems have not fully addressed the effect of these types of licenses, courts in some countries have ruled that a valid consent, giving rise to a binding contracts, can be formed in these fashions. In most countries, however, the terms of such agreements will be subject to consumer protection laws and other limitations on unconscionable provisions.

====Content of a Typical License: The Example Of an Online Database====

Let's now examine the terms of license more closely. Imagine that you are a librarian negotiating the terms of a license -- for example, to an online database. What issues will or should the license address?

=====Identification of the Parties to the Agreement=====

It is important not only to identify the parties to an agreement, but also to confirm that the persons negotiating actually have the legal authority to make agreements on behalf of their organization. If a library is part of an educational institution or is funded by the local government, for example, not every librarian may have this authority. A licensor might want proof that the person claiming to negotiate on behalf of the licensee is in fact permitted to bind the licensee by contract. The librarian might want to make sure the same is true of the person negotiating on behalf of the licensor, and that the licensor is entitled to exercise the rights of the copyright holder. This should be clearly addressed and included in the agreement.

=====Definition of Terms That Will Be Used in the Agreement=====

Because libraries often obtain licenses from copyright holders from other countries and from various industries, similar terms can have different meanings to the negotiating parties. For example, one important term in licensing agreements is '''“material breach.”''' A material breach is an action by one of the parties to a licensing agreement that permits the other party to terminate the contractual relationship. Because of the importance and ambiguity of this term, the librarian should specify in the agreement what actions by a each party would amount to a material breach.

For instance, suppose the library were to negotiate a license to access materials from an online database. In this case, it might be a material breach if the database is inaccessible for long periods of time. Likewise, the staff should consider what potential failures by the library to live up to its end of a licensing agreement might legitimately be considered material breaches.

=====Subject of Agreement=====

Parties to an agreement should be very specific about what copyrighted work is being licensed. If it’s an online research database, for example, a licensee should make sure that the license entitles patrons to view the full text of articles, rather than just abstracts or summaries. If the resource is something that should contain a table of contents, index or images, the licensee should ensure that these are included in the license as well. If there are images, one might even want to determine whether they will be viewable and/or printable in black and white or color.

=====Use Rights in the Agreement=====

Licensing agreements often contain clauses that reserve to the licensor the exclusive right to all uses of copyrighted works that are not specifically mentioned in the agreement. A licensee should therefore think of all possible uses that it might want to make of a copyrighted work before it engages in negotiations. These '''use rights''' provisions are the most important part of a licensing agreement because they control what the agreement actually allows the licensee to do.

Where an electronic resource is concerned, some basic use rights might include: searching or browsing the database, viewing and downloading material, forwarding articles to others, printing materials, and including a listing of the works and possibly their abstracts in the library’s own catalogue. A library that is affiliated with an educational institution may also want to make sure that a license allows faculty and staff to place materials in electronic reserves, include them in course packs, and distribute and/or display portions of the materials in lectures or other speaking engagements.

Further, while the practice of loaning materials to other libraries or sharing a reasonable amount of materials with colleagues for scholarly purposes is implied in some jurisdictions by law, a licensee cannot normally share copyrighted materials for commercial purposes. If a licensee wishes to do so, it will have to negotiate for the right and include it in the agreement. If modifying a work in order to abide by local norms is necessary, a library should make sure that the modification does not conflict with the author’s moral rights.

On one final issue, the licensee should be especially careful. Many license agreements have the effect of displacing the general set of exceptions and limitations (discussed at length in [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_4:_Rights,_Exceptions,_and_Limitations Module 4]) pertaining to the works covered by the license. Thus, the licensee should not assume that it will continue to enjoy the use rights created by those exceptions and limitations. If the license wishes to retain them, it must insist upon inclusion in the license agreement of a provision preserving those rights.

=====Other Conditions on Licensed Uses=====

A licensor might want to limit certain uses by location or frequency of access. In return for the right to unlimited printing of the copyrighted material, for example, a licensor might want additional compensation. In this event, a licensee can negotiate for the right to charge its patrons fees to recover copying or printing costs. A library should also determine who its users are going to be and where they will be able to access a given resource. For example, it may wish its users to be able to access the copyrighted material from any computer or only from computers located in the library. It should also decide whether access to the copyrighted material or certain uses of it will require a password or will be open to any member of the public.

=====Licensor Obligations=====

Licensor obligations are the duties a licensor has to her licensee. This clause is particularly important for electronic resources.

For instance, it is reasonable for a subscriber to an online journal, database or other resource to expect that the material will be accessible very close to 24 hours a day, every day. Where a library has a software license, it might want to negotiate for the right to maintain a back-up copy of the program. In either case, licensing agreements for electronic materials typically include some obligation on the part of the licensor to provide the licensee with technical support. Because a licensor and its technical support staff might be located in another country, a licensee should make sure that technical support will be available during the library’s peak hours.

On a related note, most online resources have periods of downtime during which the licensor’s technical staff will update the online materials. A licensee might want to ensure that this is not normally done during the library’s peak hours. When an online service or other electronic resource is unavailable for a significant period of time, licensing agreements typically include a penalty clause that requires the licensor to partially refund the licensee’s subscription fee.

Often licensors are obligated to provide the licensee periodically with an "audit of use." An audit of use is a report that gives the licensee details about how its patrons are using the licensor’s program or database. Such use audits can help library staff members in future licensing negotiations, enabling them to determine better which features and uses of licensed materials are most valuable to the library patrons. Where use audits are performed, the parties might also want to include refunds to the licensee for periods of underuse and additional fees to the licensor for periods of overuse. Lastly, a licensee should make sure that the license contains a '''warranty''' and an '''indemnity clause.''' The effect of these clauses is that the licensor guarantees that it has the authority to grant the rights contained in the license and accepts liability for any claims made by persons or organizations that later claim to have inconsistent rights.

=====Term, Termination and Renewal of a License=====

Negotiating parties should specify how long they intend the license to last. If the library wishes to have access a database perpetually, for example, it should be sure to insert such a term in the license agreement.

As discussed earlier, the parties should also list all of the conditions that would lead to a termination of the licensing relationship. This might require the parties to create an end-of-term agreement, which specifies the procedures that will be followed in the event of termination, including the costs that may be recovered by either party. If an agreement is terminated because of the licensor’s failure to make the licensed material available to the licensee, for example, the parties will want to create a formula to compensate the licensee.

While most licensing agreements contain a provision that provides for automatic renewal of the licensing relationship, many do not guarantee that the same terms will be available for the following subscription period. A licensee should make sure that, if the terms of the previous subscription period are subject to change, the renewal clause includes an obligation on the part of the licensor to notify the licensee of these changes in advance of the new subscription period.

Finally, it is crucial to discuss the library's rights if the license is not renewed. For example, if the license pertains to a collection of academic journals, will the library continue to have access to back issues of the journals, or will all access to those journals be cut off? If the latter -- and if the licensor refuses to budge on this issue -- the library might seriously consider continuing to acquire paper versions of the journals instead of (or, conceivably, in addition to) subscribing to the online version.

=====Fees=====

Fees for subscriptions to journals, online databases or other resources are typically paid on an annual or monthly basis. When works are being licensed to libraries or other large educational institutions, licensors typically take into account the size of the institution, the number of users, and the number of pages that are downloaded when determining the appropriate subscription fee.

Licensors of online journals and electronic databases vary widely in their flexibility regarding fee arrangements. Some licensors are willing to negotiate fees, others offer various packages, and others offer only one arrangement. A subscription fee could include unlimited use of the licensor’s materials, limited use for particular purpose, a pay-per-use arrangement, or a combination of these.

Pay-per-use arrangements might set a fee for each log-on access, each time a user searches for content, or might allow unlimited access but charge users or subscribing institutions for each download. Universities often purchase what is called a '''site license''', which gives all the members of the university community access to the material for a set fee.

== Collective Management ==

====Purpose and Functions of Collective Management Organizations====

The system of individual licenses described in the previous section is straightforward: the copyright holder authorizes the use of the work by a specific licensee under specified conditions. However, because copyright licensing often involves widely distributed works, individual licensing can become both very difficult and prohibitively expensive. It would not be practical, for example, for the holder of the copyright to a popular song to attempt to respond to thousands of licensing requests from radio stations all over the world.

As a result, copyright holders frequently allow '''collective management organizations''' (also known as collecting societies) to grant licenses, monitor uses of copyrighted material, and collect and share compensation from licensees on their behalf. This allows copyright holders to exercise their rights as efficiently as possible, as they can grant many more licenses than they would be able to under a direct licensing system. They also benefit from the bargaining power of an organization that negotiates payments on behalf of them and many other authors, and can bring infringement suits against persons or organizations that use copyrighted works without permission.

Licensees can also benefit from the use of collective management organizations because those organizations provide users with convenient access to large collections of materials. A radio station wanting to broadcast music from around the world on a daily basis would not be able to do so if it had to seek out and acquire rights from the copyright and neighboring rights holders of each song, but can easily enter into licenses with a small number of collective management organizations. However, licensees should bear in mind that most such organizations act as agents for copyright holders; their primary objective is to maximize the copyright holders' revenues. They should thus not be thought of as neutral arbiters.

A copyright holder that uses a collective management organization for some, but not all, of her rights is engaged in partial collective management. Again, a copyright holder’s exclusive rights in a work means that he or she alone is able to decide whether to authorize or prohibit any use covered by that copyright. In principle, this gives a copyright holder flexibility in deciding, if he chooses to use collective management at all, exactly which functions a collective management organization will perform on his behalf. In practice, however, some collective management organizations require a participating copyright holder to assign all of his rights in a copyrighted work to the organization. In these situations, the author will not be able to license others to use the copyrighted work, except through the collective management organization.

Collective management organizations may also provide social welfare benefits to their members in addition to their royalty payments, such as medical insurance and retirement packages. They may also use part of the royalties they collect to fund drama festivals, music competitions, or the production or export of national works.

====Compulsory Collective Management====

Compulsory collective management systems ensure that the benefits of collective management are actually realized. If a collective management organization does not have the rights to a significant number of works within its particular field, then it no longer serves the socially valuable purpose of being able to license a large repertoire in a single agreement.

As a result, some countries choose to make collective management for certain types of works mandatory. This often happens where a use serves an important public purpose or where works of that type are used primarily for non-commercial purposes. In such situations, royalties are usually gathered either through a tax on copying equipment, or through a predetermined fee to be paid by users (such as companies, libraries, or universities) to the collecting society. Those royalties are then divided among the copyright holders according to how frequently each work is used. Collective management organizations -- and compulsory collective management organizations in particular -- are sometimes criticized for the complexity and lack of transparency of the rules they employ for collecting and distributing royalties.

The areas in which compulsory collective management is most common are:
* neighboring rights for public performance, broadcasting, and cable transmission of sound recordings.
* public lending rights
* reprographic reproduction rights for literary works.

The second and third of these contexts are especially important for libraries. Public lending rights were discussed at length in [[Module_4:_Rights%2C_Exceptions%2C_and_Limitations|Module 4]]. As was described there, public lending rights are currently recognized in very few countries outside Europe, and they pose dangers to the central mission of libraries in developing countries. Collective management of such rights, particularly if the license fees are paid by the government, reduce those dangers, but it is probably best if public lending rights are not extended to developing countries at all.

Reproduction rights, by contrast, are recognized in all countries. Collective management of those rights can be beneficial, especially for libraries, which would find it difficult to negotiate individual licenses for all of the circumstances in which they would like to reproduce materials in their collections -- and are not able to invoke one of the exceptions or limitations discussed in [[Module_4:_Rights%2C_Exceptions%2C_and_Limitations|Module 4]]. The organizations that fulfill this function are commonly called Reproduction Rights Organizations (RROs). Their activities are discussed in detail in the [http://www.eifl.net/cps/sections/services/eifl-ip/issues/handbook/handbook-e/#crm Handbook on Copyright and Related Issues for Libraries prepared by eIFL((.link_red))].

Some reformers have proposed using compulsory collective management to deal with the distribution of works on the Internet through peer-to-peer networks, arguing that such a system would benefit both users (by legalizing file-sharing of copyrighted material [currently unlawful in most countries]) and creators (by providing them with a reliable source of revenue).

An important and often attractive variation on the compulsory-collective-management model is known as "extended collective management." A system of this sort allows an organization to license the works of all copyright holders for a certain creative class once it represents a large percentage of the members of that class. This generally includes foreign and non-member copyright holders.

Collective management organizations often enter into agreements with their sister organizations in other countries in order to represent their repertoires. Sometimes such organizations are also organized into international networks. Examples include the International Confederation of Societies of Authors and Composers (CISAC) and the International Federation of Reprographic Reproduction Organisations (IFRRO). These networks typically participate actively in negotiation of new copyright legislation at the international and national levels.

== Technological Protection Measures ==

In recent years, the holders of the copyrights in works that are distributed in digital format -- such as software, digital sound recordings, digital video recordings, and electronic books -- have become increasingly dissatisfied with the rights that copyright law gives them and have sought to enhance those rights with '''Technological Protection Measures''', or TPMs. A simple form of TPM is a copy control -- a technology, often combining hardware and software, that prevents the possessor of a copy of the work from reproducing it. A more complex form is a region control -- for example, a mechanism that restricts the parts of the world in which a particular DVD can be played. Much more elaborate forms of TPMs have been developed recently.

The invention of TPMs enhanced the rights of copyright holders significantly. But soon they found that users employed other technologies to circumvent the TPMs, rendering them useless. To curb such circumventions, they turned once again to the legal system. In the 1996 WCT, they obtained an important weapon: a requirement that all member countries adopt prohibitions on TPM circumvention. The requirement has since been reinforced by regional agreements. For example, both the 2001 EU Information Society Directive and the revised Bangui Agreement (Annex VII, Title I, Part Five), which governs 15 francophone countries in Africa, contain anti-circumvention requirements.

Many countries that are bound by one or another of these agreements have now incorporated into their national laws prohibitions on circumvention of TPMs. The terms of those provisions vary widely -- especially with regard to the penalties they impose on violators and with regard to exceptions they recognize. Currently, 26 countries have provisions specifically exempting libraries from liability if they circumvent TPMs in specified circumstances. In other countries, librarians are forced to rely upon more general exemptions.

TPMS and the anti-circumvention rules that reinforce them have many disadvantages, both from the standpoint of libraries and from the standpoint of society at large:
* They prevent many activities that copyright law would permit. As a result, they frustrate the important social policies that lie behind the exceptions and limitations discussed in [[Module_4:_Rights%2C_Exceptions%2C_and_Limitations|Module 4]]
* Because TPMs are often proprietary, they impede the interoperability of creative works and consumer electronic products obtained from different sources
* When the technologies in which they are embedded become obsolete, they frustrate users' ability to gain access to the protected works

More extensive discussion of TPMs and the hazards they pose to libraries may be found in the [http://www.eifl.net/cps/sections/services/eifl-ip/issues/handbook/handbook-e/#tpm eIFL Handbook on Copyright and Related Issues for Libraries((.link_red))].

== Orphan Works ==

Sometimes a licensee would like to obtain a license to a particular work but cannot locate the copyright holder. This may occur for various reasons. The name of the author may be missing from the document. The document may have been published anonymously. The author may have died and the person who inherited his or her rights may be unknown. Or the author may have assigned his or her rights to a publisher, which later went out of business without a clear successor. In such situations, the work is said to be an '''orphan work.'''

A small number of countries have implemented systems that make it possible to make use of orphan works. For example, in Canada, those who wish to use such works must apply to the Copyright Board for a license. Such applicants must first show that a reasonable effort to locate the copyright holder has been fruitless. If the work had previously been published, the Copyright Board will then grant the applicant a non-exclusive license (effective only within Canada) to use the work. The license is limited to particular types of uses, and requires the applicant to pay a designated royalty fee. This royalty can be claimed by the copyright holder for up to five years after the transaction, in the event that she later comes forth.

The Nordic countries of Denmark, Finland, Iceland, Norway, and Sweden have also enacted statutes governing the licensing of orphan works. In Denmark, for example, the licensing of orphan works is arranged through a collective management organization. The Danish Copyright Act provides that an individual interested in using an orphan work may arrange to pay a rights management organization for that use, provided that the organization represents a “substantial number” of Danish copyright holders. The royalties paid to these organizations may be claimed by a copyright holder for up to five years, and unclaimed royalties for orphan works are donated to public works programs.

Another country that implements a licensing regime for the use of orphan works is Japan, which operates a compulsory licensing system for orphan works codified in Section 8, Article 67 of its copyright laws. Japan requires that a prospective user perform “due diligence” in attempting to locate the copyright holder, but does not explain what qualifies as “due diligence.” Like Canada, Japan requires that the work have been previously published, and allows the government to grant a license to the user upon payment of a royalty. Royalties are placed in a fund from which copyright holders may receive compensation if they later discover and object to the use of their works. Notably, the holder may petition the government for an increase in the royalty rate within three months of the issuance of the license if she learns of the use and believes the initial rate to be unsatisfactory.

Other countries do not currently have statutory provisions dealing with orphan works, but may enact such provisions in the near future. [http://www.govtrack.us/congress/bill.xpd?bill=s110-2913 American legislation] dealing with orphan works is currently being considered by the U.S. Congress. The proposal would limit remedies in civil suits over the use of copyrighted works, as long as: (1) the user had made reasonable, but unsuccessful, efforts to locate and identify the holder, and (2) the work was attributed to the holder (if identified but not located). The proposal has been [http://lessig.org/blog/2007/02/copyright_policy_orphan_works.html criticized by many scholars((.link_green))] and is opposed by representatives of photographers. Partly as a result, it is unlikely to be adopted soon.

In April 2008, the European Commission’s High Level Expert Group published a [http://ec.europa.eu/information_society/activities/digital_libraries/experts/hleg/index_en.htm report on Digital Preservation, Orphan Works, and Out-of-Print Works((.link_green))], which recommended courses of action for member states of the European Union to establish licensing systems that would deal with the problem of orphan works. At the same time, numerous rights holders and representatives of libraries and archives signed a [http://ec.europa.eu/information_society/activities/digital_libraries/doc/hleg/orphan/mou.pdf Memorandum of Understanding on orphan works((.link_green))] which expressed the commitment of these organizations to facilitate and encourage the licensing of orphan works for certain purposes. The Memorandum of Understanding and the European Commission’s report are not law and are therefore not binding.

Librarians in the majority of countries that currently lack a system for managing orphan works have a strong interest in collaborating with other stakeholders to create such a system. This is especially true of librarians who wish to initiate digitization projects for the preservation and distribution of older works in deteriorating, non-digital formats. Although the exceptions and limitations discussed in [[Module_4:_Rights%2C_Exceptions%2C_and_Limitations|Module 4]] may permit libraries to undertake such digitization projects purely for preservation purposes, they typically do not permit the libraries to make the digitized works available to the public. For that, the libraries usually need licenses, which are impossible to obtain for orphan works. Finding a workable and fair solution is thus imperative. For a discussion of this issue, and the positions that various library organizations have already taken on it, see the [http://www.eifl.net/cps/sections/services/eifl-ip/issues/handbook/handbook-e/#orphan eIFL Handbook on Copyright and Related Issues for Libraries((.link_red))].

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

== [[Image:casestudy.png|50px|]]Back to the case study==

Nadia and Angela have identified works that Angela wishes to use that are copyrighted and not in the public domain. They need to get permission from the rightsholders for uses that are not covered by exceptions and limitations.

First, they have to identify the copyright holders. Original authors may have licensed or transferred rights to a publisher or a collecting society, or the creation may be a work-for-hire. For the reasons explored in [[Module_3:_The_Scope_of_Copyright_Law|Module 3]], other persons' rights may also be involved, such as music performers, or persons depicted in photographs (who are protected by the right of publicity against certain uses of their image), in addition to the photographer or entity who owns the copyright. When the contact information for the copyright holder is not available on the work, it might be possible to locate the holder though national copyright offices or collective rights organizations.

Once they have identified and located the rightsholders, Nadia and Angela will request permission to use the works. While a first contact by email or phone can be useful to explain the use they are considering, they will likely be required to follow up with a request in writing that describes accurately the copyrighted work (title, author, copyright holder, URL), the purpose of the use (a description of the use in the course pack), and the conditions of the permission that have been discussed (for a small fee, for free, etc.). If the decide to seek a broad license to a database containing the works at issue, they should carefully review the guidelines for the negotiation of such licenses set forth in this module.

Finally, if they are unable to identify the owners of the copyrights in some of the materials, they should consult their country's copyright law to ascertain whether it contains a provision dealing with "orphan works."

</div>

== Additional Resources ==

A brief overview of collective licensing systems by WIPO can be found in [http://www.wipo.int/freepublications/en/copyright/450/wipo_pub_l450cm.pdf “Collective Management of Copyrights and Related Rights”((.link_green))].

A much more in-depth analysis of voluntary collective rights organizations may be found in Robert Merges, [https://www.law.berkeley.edu/institutes/bclt/pubs/merges/contract.htm "Contracting Into Liability Rules: Intellectual Property Rights and Collective Rights Organizations((.link_green))]," 84 Calif. L. Rev.1293 (1996).

A thorough examination of collective licensing organizations in Europe is [http://www.europarl.europa.eu/meetdocs/2004_2009/documents/dv/study-collective-management-rights-/study-collective-management-rights-en.pdf KEA Study- Collective Management of Rights in Europe: A Quest for Efficiency((.link_green))] (2006).

Favorable discussions of compulsory collective licensing, particularly as a solution to the problem of peer-to-peer filesharing of copyrighted works, may be found in Neil Netanel, [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=468180 "Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing,"] 17 Harvard Journal of Law & Technology 1 (2003), and William Fisher, <i>[http://www.tfisher.org/PTK.htm Promises to Keep: Technology, Law, and the Future of Entertainment]</i> (2004). Much more skeptical views are expressed in Robert Merges, [http://www.cato.org/pubs/pas/pa-508es.html "Compulsory Licensing vs. the Three "Golden Oldies" Property Rights, Contracts, and Markets"] (Cato Policy Analysis No. 508, Jan. 15, 2004).

A thoughtful analysis of the advantages and disadvantages of collective licensing systems in Japan is Salil K. Mehra, [http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=1010246 "The iPod Tax: Why the Digital Copyright System of American Law Professors' Dreams Failed in Japan,"((.link_green))] 79 U. Colo. L. Rev. 421 (2008).

A crucial guide for librarians seeking to navigate these waters is [http://www.eifl.net/cps/sections/docs/ip_docs/licensing-digital Emanuella Giavarra, "Licensing Digital Resources: How to Avoid the Legal Pitfalls.((.link_red))]

== Cases ==

The following judicial opinions explore and apply some of the principles discussed in this module:

[http://www.bailii.org/ew/cases/EWHC/Ch/2009/2520.html UK: Grisbrook v. MGN Limited, High Court Chancery Division (High Court Chancery Division)((.link_red))] (Implied licenses)

[http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0169:EN:HTML Case C-169/05, Uradex SCRL v. Union Professionnelle de la Radio and de la Télédistribution (RTD) and Société Intercommunale pour la Diffusion de la Télévision (BRUTELE)((.link_green))] (Collecting Societies – Neighboring Rights)

[http://www.ecln.net/documents/Decisons-France/cc_2006-07-27_no_2006-540_dc_information_english.pdf France: Decision of the French Constitutional Council no. 2006-540 DC of 27 July 2006((.link_green))] (Digital Rights Management)

[http://cyber.law.harvard.edu/people/tfisher/2005%20Blizzard%20Abridged.pdf Davidson v. Jung, 422 F.3d 630 (8th Cir. 2005)((.link_red))] (Technological Protection Measures)

[http://www.bailii.org/ew/cases/EWCA/Crim/2009/2293.html UK: Gilham v. R, Court of Appeal of England and Wales (Court of Appeal of England and Wales), 2009((.link_green))] (Technological Protection Measures)

[http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&num=79919870C19060275&doc=T&ouvert=T&seance=ARRET Case C-275/06, Productores de Música de España (Promusicae) v. Telefónica de España SAU((.link_green))] (obligations of service providers)

== [[image:question.png|50px|]] Assignment and discussion questions ==

'''[[image:assignment.png|50px|]]Assignment'''

1. Understand a license

Select a license governing access to electronic resources in your library or find the standard terms of a publisher online. Read the use rights described in the license, and explain whether, to what extent, and under which conditions it covers the following actions:
* reproduction by the patrons;
* reproduction by the librarians;
* downloading by the patrons;
* interlibrary loan of a printed copy;
* interlibrary loan of a digital version;
* publication in an electronic reserve or a course pack;
* rights when reusing resources: translation, compilation, indexing, abstract, data-mining, etc.; and
* other uses that you may define.

2. Collecting societies

What collecting societies, copyright clearing houses, copyright offices, or other entities collectively managing rights are operating in your country? For each of them, provide the name of the society, the website if any, and the type of media or works covered. Read the applicable statutes or bylaws. Explain what rights are managed, if members must transfer all of their rights to the organization or may only license some of them, and if it is a voluntary or a compulsory system.

3. Orphan works

Which of the systems currently used by a few countries to facilitate use of orphan works is best? What system would be even better?

'''[[image:discussion.png|50px]]Discussion Question(s)'''

Comment on the answers of your colleagues to question 1, and select the most favorable terms and licenses among those which have been analyzed.

== Contributors ==

This module was created by [[Contributors#scott|David Scott]] and [[Contributors#cox|Emily Cox]]. It was then edited by a team including [[Contributors#diaz|Sebastian Diaz]], [[Contributors#fisher|William Fisher]], [[Contributors#gasser|Urs Gasser]], [[Contributors#holland|Adam Holland]], [[Contributors#isbell|Kimberley Isbell]], [[Contributors#jaszi|Peter Jaszi]], [[Contributors#maclay|Colin Maclay]], [[Contributors#moshirnia|Andrew Moshirnia]], and [[Contributors#peterson|Chris Peterson]].

{{NavFooter}}

Module 2: The International Framework

2011-05-24T13:16:14Z

Thackett:

==[[Image:key.png|50px|]] Learning objective ==

This module explains how international copyright law works, how it affects developing countries, and how developing countries can affect it.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

== [[Image:casestudy.png|50px|]] Case study ==

Angela is troubled by the restrictions that copyright law places upon her ability to assemble and distribute course materials. She is considering writing a short article, arguing that her nation's copyright law should be reformed to give teachers and students more latitude. However, she has heard that international agreements may restrict the freedom that each country enjoys to define its own copyright laws. Before drafting her article, she asks Nadia's help in determining which, if any, international agreements are applicable in their own country.

</div>

==[[Image:lesson.png|50px|]] Lesson ==

== The Rationale for the International System ==

As we saw in [[Module 1: Copyright and the Public Domain]], each country in the world has its own set of copyright laws. However, the flexibility that most countries enjoy in adjusting and enforcing their own laws is limited by a set of international treaties.

Why do we need any international management of this field? There are two traditional answers to this question.

First, without some international standardization, nations might enact legislation that protects their own citizens while leaving foreigners vulnerable. Such discrimination was common prior to international regulation. As copyright owners become increasingly interested in global protection for their creation, mutual recognition on fair terms of rights across borders becomes ever more important.

Second, some copyright holders believe that developing nations would not adopt adequate copyright protections unless forced to do so by treaty. Representatives of developing nations strongly dispute this argument.

== International Instruments ==

The simplest way to achieve these goals would be a single treaty signed by all countries. Unfortunately, the current situation is more complex. Instead of one treaty, we now have six major '''multilateral''' agreements, each with a different set of member countries.

Each of the six agreements was negotiated within - and is now administered by - an international organization. Four of the six are managed by the World Intellectual Property Organization (WIPO); one by the United Nations Educational, Scientific and Cultural Organization (UNESCO); and one by the World Trade Organization (WTO).

The six agreements have been created and implemented in similar, though not identical, ways. Typically, the process begins when representatives of countries think that there should be international standards governing a set of issues. They enter into '''negotiations''', which can last several years. During the negotiations, draft provisions are presented to the delegations of each country, which then discuss them and may propose amendments to their content in order to reach a consensus. This "consensus" may reflect genuine agreement among all of the participating countries that the proposed treaty is desirable, or it may result from pressure exerted by more powerful countries upon less powerful countries. Once consensus has been reached, the countries conclude the treaty by '''signing''' it. Thereafter, the governments of the participating countries '''ratify''' the treaty, whereupon it '''enters into force'''. Countries that did not sign the treaty when it was initially concluded may join the treaty later by '''accession'''.

In many countries -- especially those that follow the civil-law tradition -- treaties are regarded as "self-executing." In other words, once they are ratified, private parties can rely on them and, if necessary, bring lawsuits against other private parties for violations of the treaties' provisions. However, In other countries -- especially those influenced by the British or Scandinavian constitutional traditions -- treaties lack this self-executing authority. Instead, the national legislatures must adopt statutes implementing them, after which private parties rely on the terms of the implementing legislation, rather than on the terms of the treaties themselves.

None of the six treaties pertaining to copyright law contains a comprehensive set of rules or standards for a copyright system. Rather, each one requires member countries to deal with particular issues in particular ways, but leaves to the member countries considerable discretion in implementing its requirements.

Click here for more on the [[stages of an international agreement]].

Set forth below are brief descriptions of the six major treaties, with special attention to their impacts on developing countries.

====Berne Convention====

In 1886 ten European states signed the Berne Convention for the Protection of Literary and Artistic Works (referred to hereafter as the "Berne Convention") in order to reduce confusion about international copyright law. Since then, a total of 164 countries have joined the Berne Convention. However, there have been several revisions of the Berne Convention, and not all countries have ratified the most recent version. Any nation is permitted to join. You can check to see [http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15 if your country is a member of the Berne Convention by consulting this link]. Below is a map showing which countries are currently members.

<div style="border: 1px dashed grey; padding: .5em 1em; margin: 3px 3px 1em 3px; width: 721px;">
[[Image:Map1.png|721px]]
</div>

The Berne Convention established three fundamental principles. The first and most famous is the principle of “national treatment,” which requires member countries to give the residents of other member countries the same rights under the copyright laws that they give to their own residents. So, for example, a novel written in Bolivia by a Bolivian citizen enjoys the same protection in Ghana as a novel written in Ghana by an Ghanian citizen.

The second is the principle of “independence” of protection. It provides that each member country must give foreign works the same protections they give domestic works, even when the foreign works would not be shielded under the copyright laws of the countries where they originated. For example, even if a novel written in Bolivia by a Bolivian national were not protected under Bolivian law, it would still be protected in Ghana if it fulfilled the requirements for protection under Ghanian law.

The third is the principle of “automatic protection.” This principle forbids member countries from requiring persons from other Berne Convention member countries with legal formalities as a prerequisite for copyright protection. (They may impose such requirements on their own citizens, but usually do not.) The effect of this principle is that the Bolivian author of a novel doesn’t have to register or declare her novel in Ghana, India, Indonesia or any other member state of the Berne Convention; her novel will be automatically protected in all of these countries from the moment it is written.

In addition to these basic principles, the Berne Convention also imposes on member countries a number of more specific requirements. For instance, they must enforce copyrights for a minimum period of time. The minimum copyright term for countries that have ratified the most recent version of the Berne Convention is the life of the author plus 50 years for all works except photographs and cinema. The Berne Convention also requires its members to recognize and enforce a limited subset of the “moral rights” discussed in [[Module 1: Copyright and the Public Domain#What Rights Come With Copyright.3F|Module 1]].

The Berne Convention sets forth a framework for member countries to adopt exceptions to the mandated copyright protections. The so-called "three-step test" contained in Article 9(2) ([http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework#The_Three-Step_Test discussed in more detail below]) defines the freedom of member countries to create exceptions or limitations to authors' rights to control reproductions of their works. Other provisions of the Berne Convention give member countries discretion to create more specific exceptions.

When the Berne Convention was revised most recently in Paris in 1971, the signatory countries added an [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P410_75777 Appendix((.link_red))], which contains special provisions concerning developing countries. In particular, developing countries may, for certain works and under certain conditions, depart from the minimum standards of protection with regard to the right of translation and the right of reproduction of copyrighted works. More specifically, the Appendix permits developing countries to grant non-exclusive and non-transferable compulsory licenses to translate works for the purpose of teaching, scholarship or research, and to reproduce works for use in connection with systematic instructional activities.

While the Berne Convention outlines broad standards for copyright protection, it mandates few specific rules. As a result, the legislature in each member country enjoys considerable flexibility in implementing its requirements. For example, in the Berne Convention Implementation Act of 1988, the U.S. Congress adopted a “minimalist” approach to implementation, making only those changes to copyright law that were absolutely necessary to qualify for membership.

The Berne Convention does not contain an enforcement mechanism. This means that member states have little power to punish another state that does not comply with the Berne Convention's guidelines. As we will see later, this situation partially changed for the members of the Berne Convention that also joined the WTO.

To learn more about the Convention you may [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html read its text((.link_red))] or consult a brief discussion of the history of the [[Berne Convention]].

====Universal Copyright Convention====

The '''Universal Copyright Convention''' (or '''UCC''') was developed by '''UNESCO''' and adopted in 1952. It was created as an alternative to the Berne Convention. The UCC addressed the desire of several countries (including the United States and the Soviet Union) to enjoy some multilateral copyright protection without joining the Berne Convention.

The UCC’s provisions are more flexible than those of the Berne Convention. This increased flexibility was intended to accommodate countries at different stages of development and countries with different economic and social systems. Like the Berne Convention, the UCC incorporates the principle of national treatment and prohibits any discrimination against foreign authors, but it contains fewer requirements that member countries must comply with.

The UCC has decreased in importance as most countries are now party to the Berne Convention or are members of the WTO (or both). The copyright obligations of members of the WTO are governed by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), discussed below.

You may check if your country is a member of the UCC by reviewing [http://portal.unesco.org/culture/en/files/7816/11642786761conv_71_e.pdf/conv_71_e.pdf this list]. For more information about the UCC you may [http://www.ifla.org/documents/infopol/copyright/ucc.txt read its text] or consult the [[Examination of the UCC]].

====Rome Convention (1961)====

By 1961, technology had progressed significantly since the Berne Convention was signed. Some inventions, such as tape recorders, had made it easier to copy recorded works. The Berne Convention only applied to printed works and thus did not help copyright holders defend against the new technologies. To address the perceived need for strong legislative protection for recorded works, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations was concluded by members of WIPO on October 26, 1961. It extended copyright protection from the author of a work to the creators and producers of particular, physical embodiments of the work. These "fixations" include media such as audiocassettes, CDs, and DVDs.

The Rome Convention requires member countries to grant protection to the works of performers, producers of phonographs, and broadcasting organizations. However, it also permits member countries to create exceptions to that protection -- for example, to permit unauthorized uses of a recording for the purpose of teaching or scientific research.

[http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=17 88 countries have signed the Rome Convention]. Below is a map of the member states:

<div style="border: 1px dashed grey; padding: .5em 1em; margin: 3px 3px 1em 3px; width: 721px;">
[[Image:Map2.png|721px]]
</div>

Membership in the Rome Convention is open only to countries that are already parties to the Berne Convention or to the Universal Copyright Convention. Like many international treaties, joining the Rome Convention has an uncertain effect on domestic law. Countries that join the convention may "reserve" their rights with regards to certain provisions of the treaty. In practice, this has enabled countries to avoid the application of rules that would require important changes to their national laws.

For more information on the Rome Convention you may [http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html read its text((.link_red))] or read more about the [[Rome Convention provisions]].

====WIPO Copyright Treaty (WCT) ====

The way that copyright owners reproduce, distribute, and market their works has changed in the digital age. Sound recordings, articles, photographs, and books are commonly stored in electronic formats, circulated via the Internet, and compiled in databases. Unfortunately, the same technologies that enable more efficient storage and distribution have also facilitated widespread copying of copyrighted works. Concerned about the effects of these new technologies, the governments of developed countries advocated for and ultimately secured two treaties: the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty.

The WIPO Copyright Treaty (WCT) is a special agreement under the Berne Convention that entered into force on March 6, 2002. It is the first international treaty that requires countries to provide copyright protection to computer programs and to databases (compilations of data or other material).

The WCT also requires members to prohibit the circumvention of technologies set by rightsholders to prevent the copying and distribution of their works. These technologies include encryption or “rights management information” (data that identify works or their authors, and that are necessary for the management of their rights).

[http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=16 88 countries are now parties to the WCT].

For more about the WCT [http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html read its text((.link_red))] or read the [[Examination of the WCT]].

====WIPO Performances and Phonograms Treaty (WPPT)====

The WIPO Performances and Phonograms Treaty (WPPT) was signed by the member states of WIPO on December 20, 1996. The WPPT enhances the intellectual property rights of performers and of producers of '''phonograms'''. Phonograms include vinyl records, tapes, compact discs, digital audiotapes, MP3s, and other media for storing sound recordings.

The WPPT grants performers economic rights in their performances that have been fixed in phonograms. It also grants performers moral rights over these performances. By contrast, the producers of phonograms are only granted economic rights in them.

[http://www.wipo.int/treaties/en/ShowResults.jsp?country_id=ALL&start_year=ANY&end_year=ANY&search_what=C&treaty_id=20 86 countries are party to the WPPT].

For more about the WPPT [http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html read its text((.link_red))] or consult the [[Examination of the WPPT]].

====The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)====

The TRIPS is an international agreement administered by the WTO. A map showing the current membership of the WTO is available [http://en.wikipedia.org/wiki/World_Trade_Organization_accession_and_membership here((.link_red))]. The TRIPS agreement was negotiated and concluded in 1994. TRIPS establishes minimum standards for many forms of intellectual property protection in member countries of the WTO, including copyright.

The substantive provisions of TRIPS do not differ drastically from the Berne Convention. The major difference is that TRIPS requires member countries to grant copyright protection to computer programs and data compilations. However, TRIPS does not require the protection of authors' moral rights, which the Berne Convention requires.

The most important innovations of TRIPS are the remedies it requires. Unlike the Berne Convention, TRIPS requires member countries to provide effective sanctions for violations of copyrights. In addition, it creates a dispute resolution mechanism by which WTO member countries can force other members to comply with their treaty obligations. It is sometimes said that, unlike the Berne convention, TRIPS has "teeth."

TRIPS allows for some flexibility in its implementation. This flexibility is intended to permit developing nations to balance the incorporation of the general principles of TRIPS with development concerns. You can study additional [[Information concerning the flexibilities]] of TRIPS for developing nations.

The text of the TRIPS Agreement is available [http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm here((.link_red))].

====The proposed Anti-Counterfeiting Trade Agreement (ACTA)====

The six multilateral treaties described above may soon be joined by a seventh. In October 2007, the United States, the European Community, Switzerland, and Japan simultaneously announced that they would negotiate a new intellectual property enforcement treaty, the Anti-Counterfeiting Trade Agreement (ACTA). Australia, the Republic of Korea, New Zealand, and Mexico have since joined the negotiations. Several rounds of negotiations have occurred. The participants have stated publicly that they expect to finish negotiations in 2010.

Among other issues, ACTA will contain provisions to address "Internet distribution and information technology," such as authorizing officials to search for illegally downloaded music on personal devices at airports, or forcing Internet Service Providers to provide information about possible copyright infringers without a warrant.

===Regional Agreements===

The multilateral agreements we have just described contain the primary provisions that limit the freedom of each country in shaping its own copyright laws. But some countries also belong to regional organizations that have the power to influence the copyright laws of their members.

The most important such regional organization is the '''European Union''', commonly known as the '''EU'''. (A map showing the current membership of the EU, as well as the candidates for admission to the EU, is available [http://www.ezilon.com/european_maps.htm here].) Beginning in 1991, the EU has adopted several directives relating to copyright law. (A directive obliges the member countries to bring their laws into conformity with its requirements by a particular date, but leaves to each country's discretion some flexibility in achieving that goal.) For example, the Software Directive required member countries to grant copyright protection to the authors of software programs, regardless of how creative those programs are. The [http://en.wikipedia.org/wiki/Rental_Directive Rental Rights Directive((.link_green))] required member countries to recognize "a right to authorize or prohibit the rental and lending of originals and copies of copyright works...." (The background of this innovation and its significance for librarians will be discussed in [[Module 4: Rights, Exceptions, and Limitations|Module 4]]). The [http://en.wikipedia.org/wiki/Copyright_Duration_Directive_(93/98/EEC) Copyright Duration Directive((.link_green))] required member countries to extend copyright protection to the life of the author plus 70 years (20 years more than the term required by the Berne Convention). The controversial [http://en.wikipedia.org/wiki/Directive_on_the_harmonisation_of_certain_aspects_of_copyright_and_related_rights_in_the_information_society Information Society Directive((.link_green))] (also sometimes known as the Copyright Directive) was adopted in 2001 to implement the WCT, discussed above. (The main provisions of the Information Society Directive will be discussed in subsequent modules.) And the [http://en.wikipedia.org/wiki/Resale_Rights_Directive Resale Rights Directive((.link_green))] obliges member countries to grant the creators of original works of art a right to remuneration when those works are resold.

Equally important for many African countries is the revised [http://www.oapi.wipo.net/doc/en/bangui_agreement.pdf Bangui Agreement((.link_green))] (executed in 1999; effective in 2002), which governs the member countries of the [http://www.oapi.wipo.net/fr/OAPI/index.htm '''African Intellectual Property Organization (OAPI)'''] ('''Benin, Burkina Faso, Cameroon, Central Africa, Congo, Cote d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Mauritania, Niger, Senegal, Chad, and Togo'''). Articles 8 and 10 of Annex VII of the Agreement set forth an especially generous list of moral rights (reflecting its origins in French copyright law), while Article 9 sets forth a similarly generous list of economic rights, including the rental right. Articles 11 through 21 then carve out of those rights a long list of exceptions and limitations (to which we will return in Modules [[Module 4: Rights, Exceptions, and Limitations|4]] and [[Module_5:_Managing_Rights|5]]).

The '''North American Free Trade Agreement (NAFTA)''', which was entered into by '''Canada, the United States, and Mexico''' in 1994, limits the discretion of those three countries in defining their intellectual-property laws. However, with respect to copyright laws in particular, NAFTA closely parallels the TRIPS Agreement, discussed above, and thus has relatively little independent significance.

Other regional organizations that could influence their member countries' copyright systems -- but that have not yet, for the most part, done so -- include [http://www.comunidadandina.org/index.htm '''The Andean Community'''] ('''Bolivia, Colombia, Ecuador, and Peru'''), [http://www.mercosur.int/msweb/Portal%20Intermediario/ '''Mercosur'''] ('''Argentina, Brazil, Paraguay, Uruguay,''' and (perhaps soon) '''Venezuela'''), and the [http://www.aripo.org/ '''African Regional Intellectual Property Organization (ARIPO)'''] ('''Botswana, the Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia, and Zimbabwe''').

===Free Trade Agreements and Bilateral Investment Treaties===

Multilateral treaties such as TRIPS can provide powerful global protection for copyright holders because they establish minimum standards for protection of copyrights that are binding on large numbers of countries. However, copyright holders sometimes try to obtain even stronger protections through bilateral treaties between countries or organizations of countries. Bilateral treaties on copyright law often address specific issues between the the two parties. Such agreements are commonly known as '''free trade agreements''' (FTAs) or '''Bilateral Investment Treaties''' (BITs).

Typically, such bilateral agreements either narrow the flexibilities that a developing country would enjoy under TRIPS or impose more stringent standards for copyright protection. For example, the U.S. government has included anti-circumvention obligations in its bilateral FTAs with Jordan, Singapore, Chile, Morocco, Bahrain and Oman. Similarly, the European Union has recently negotiated FTAs with developing countries that significantly limit the discretion of those countries in adjusting their copyright laws.

FTAs and BITs are highly controversial. Many scholars and representatives of developing countries regard them as abuses of the power of developed countries. Opponents of proposed FTAs or BITs have sometimes been able to prevent their adoption or modify them.

Click here for more [[Information on FTAs]].

===The Three-Step Test===

Most of the major multilateral, regional, and bilateral agreements use a tool that has come to be known as the “three-step test” to define the freedom of member countries to create “exceptions and limitations” to copyrights. The three-step test was first created in the 1967 revision of the Berne Convention. It provides:

''"It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works [a] in certain special cases, provided that [b] such reproduction does not conflict with a normal exploitation of the work and [c] does not unreasonably prejudice the legitimate interests of the author."''

Most international copyright agreements since then have incorporated versions of this test. For example, versions of the test may be found in the TRIPS Agreement (Article 13), the WCT (Article 10), several of the EU copyright directives, and several bilateral agreements. Indeed, three-step tests may now be found in the national legislation of many countries, including France, Portugal, China, and Australia. Even when national legislation does not explicitly incorporate the test, judges sometimes rely upon it when construing and applying their nation's copyright laws.

The coverage of the different versions of the test varies somewhat. For example, whereas the Berne Convention three-step test only applies to exceptions and limitations to the right of reproduction, the three-step test contained in Article 13 of the TRIPS Agreement applies to exceptions and limitations to any of the “exclusive rights” associated with copyright. In addition, the language used in the different versions varies. For example, whereas the third step of the Berne Convention test (quoted above) requires that an exception or limitation “not unreasonably prejudice the legitimate interests of the author,” the third step of the TRIPS test requires that an exception or limitation “not unreasonably prejudice the legitimate interests of the right holder” – a change that shifts attention away from the interests of creators toward the economic interests of the companies that acquire copyrights from the original creators.

Given the prevalence of the three-step test and the long period of time in which it has existed, you might expect that the meaning of the test would by now be clear. Not so. The version of the test contained in the Berne Convention has never been interpreted officially. The version contained in Article 13 of the TRIPS Agreement has only been officially interpreted once by a dispute resolution panel, and how far that interpretation should control other countries in the future is not clear. And the courts in different European countries have construed the test in inconsistent ways in functionally identical cases.

Given this uncertainty, commentators and lobbyists disagree sharply about how restrictive the three-step test really is. At one extreme, some claim that the fair-use doctrine in the United States (which we will discuss in [[Module 4: Rights, Exceptions, and Limitations|Module 4]]) violates the test -- and thus that the United States should repeal the fair-use doctrine and that developing countries may not adopt similar doctrines. As [http://williampatry.blogspot.com/2008/04/fair-use-three-step-test-and-european.html William Patry has demonstrated((.link_green))], this interpretation is highly implausible -- as shown most clearly by the failure of any of the countries involved in the negotiation of the TRIPS Agreement or the accession by the United States to the Berne Convention to object to the fair-use doctrine in the United States.

At the opposite extreme, a group of prominent and influential copyright scholars have recently proposed [http://www.ip.mpg.de/ww/de/pub/aktuelles/declaration_on_the_three_step_.cfm "A Balanced Interpretation of the Three-Step Test in Copyright Law"((.link_red))]. They argue that an exception or limitation that fails to satisfy one of the three steps should not necessarily be deemed to violate the test. Rather, all three components of the test should be considered together in a "comprehensive overall assessment" that takes into account the threats that excessive levels of copyright protection pose to "human rights and fundamental freedoms," "interests in competition," and "other public interests, notably in scientific progress and cultural, social, or economic development" -- in addition to the important interests of copyright holders in fair compensation. This proposal has two strengths. First, it fits well the underlying purpose of the copyright system as a whole, which, as we have seen, seeks to balance the interests of creators with the interests of society at large in maximizing access to ideas and information. Second, it derives support from the reference in all versions of the test to the "legitimate" interests of either authors or right holders. It does, however, have one weakness: virtually all courts and tribunals that have considered the test to date have concluded that all three of its "steps" must be satisfied.

Another interpretation that does not suffer from this weakness but that preserves the strengths of the proposed "Balanced Interpretation" has been offered recently by [http://www.ivir.nl/publicaties/hugenholtz/finalreport2008.pdf Professors Hugenholtz and Okediji((.link_red))]: ''"Limitations and exceptions that (1) are not overly broad, (2) do not rob right holders of a real or potential source of income that is substantive, and (3) do not do disproportional harm to the right holders, will pass the test."'' This proposal is grounded in a long and detailed discussion of the evolution of the three-step test and deserves careful consideration.

An important general lesson may be derived from this situation: The meaning of copyright laws of all sorts -- including international copyright agreements -- is often less clear than first appears. Many rules have not yet been interpreted authoritatively. This creates opportunities for librarians or other representatives of developing countries to argue for and act upon interpretations that give them more freedom when shaping their own laws. In subsequent modules, we will come across several such opportunities.

== Perspectives For Developing Countries ==

====The Benefits and Drawbacks of Copyright Law for Developing Countries====

Some observers believe that governments should upgrade and harmonize copyright law globally because it promotes the arts and rewards creators. They argue that granting an exclusive right in creative expression provides a necessary incentive for copyright holders to invest in the creation and distribution of expressive works. This stimulates cultural expression and benefits citizens. Suppression of competition from "pirates," they argue, is necessary to allow local creative industries to flourish.

However, others argue that implementing the same copyright law in all countries has a disproportionate and negative effect on developing countries. Most developed nations have powerful and lucrative entertainment, educational, and research industries that export copyrighted works, and thus benefit from strong copyright law. Developing countries, on the other hand, typically import copyrighted works. Thus, it is argued, the residents of developing countries have to pay more royalties and fees as a result of enhanced copyright protection. It is also argued that restrictive copyright laws prevent many governments from addressing important social needs -- such as providing their citizens with good educations -- because critical information is locked up by the law.

The latter set of arguments have prompted a growing number of groups in developing countries to resist the imposition of the minimum standards of copyright protection set by the TRIPS Agreement and the even harsher duties that are imposed on developing countries by FTAs. They call for a better balance between, on one hand, providing incentives to creators and rewarding their creative activities and, on the other hand, promoting access to knowledge and research, in order to spur economic growth and foster innovation in the developing countries.

====WIPO Development Agenda====

The WTO has entered into an agreement with '''WIPO''' to provide advice to developing countries on the implementation of TRIPS. Some in developing countries consider the advice provided by WIPO to be too weighted in favor of the interests of copyright holders. In 2004, Brazil and Argentina submitted to the '''WIPO General Assembly''' a proposal for a “development agenda.” [http://www.wipo.int/edocs/mdocs/govbody/en/wo_ga_31/wo_ga_31_11.pdf The proposal((.link_red))] called on WIPO to pay greater attention to the impact of intellectual property protection on economic and social development, the need to safeguard flexibilities designed to protect the public interest, and the importance of promoting “development oriented” technical cooperation and assistance. Additional proposals in support of a WIPO Development Agenda were submitted by other member countries and organizations, such as Chile, the Group of Friends of Development, and the Africa Group.

This initiative has made considerable progress. The 2004 WIPO General Assembly agreed to hold a series of intergovernmental meetings to examine the proposals for a development agenda. Substantive reform proposals to establish a development agenda for WIPO passed during the 2007 WIPO General Assembly. The [http://www.wipo.int/ip-development/en/agenda/recommendations.html current WIPO Development Agenda((.link_red))] contains 45 recommendations for the General Assembly to pursue.

Organizations representing librarians have had a significant voice in the negotiations of the WIPO Development Agenda. Joint statements of the International Federation of Library Associations (IFLA), the Library Copyright Alliance (LCA), and Electronic Information for Libraries (eIFL) are available [http://www.eifl.net/development-agenda-wipo here((.link_red))].

====The Proposed Access to Knowledge (A2K) Treaty====

The Argentina-Brazil proposal for a development agenda prompted a debate on whether WIPO should work to ensure effective technology transfer from developed to developing countries. Nongovernmental organizations (NGOs), academics, and researchers shared the concerns expressed by developing countries that aspects of the copyright system were impeding innovation and creating disadvantages for developing countries. This reaction to WIPO’s current policies took the form of a movement calling for equality among citizens from developed and developing countries as regards access to knowledge; it has come to be known as the “access to knowledge” or '''“A2K”''' movement. Librarians’ organizations, such as eIFL, were pioneers in the advocacy of a “right to knowledge” and have called upon WIPO to establish minimum exceptions and limitations to copyright protection.

One outgrowth of the movement has been a [http://www.cptech.org/a2k/a2k_treaty_may9.pdf proposal for a United Nations treaty((.link_red))]. The proposed treaty intends to “protect and enhance access to knowledge, and to facilitate the transfer of technology to developing countries.” It includes a list of circumstances under which copyright holders may not prevent the free use of their content, including:

* The use of works for purposes of library or archival preservation, or to migrate content to a new format.
* The efforts of libraries, archivists, or educational institutions to make copies of works that are not currently the subject of commercial exploitation, for purposes of preservation, education, or research.
* The use of excerpts, selections, and quotations from copyrighted works for purposes of explanation and illustration in connection with not-for-profit teaching and scholarship.
* The use of copyrighted works by educational institutions as primary instructional materials, if those materials are not made readily available by copyright holders at reasonable prices.

In addition, the proposed treaty would establish a '''First Sale Doctrine''' for '''Library Use''', stating that “a work that has been lawfully acquired by a library may be lent to others without further transaction fees to be paid by the library.” Finally, the A2K treaty proposal introduces provisions in support of distance education, as well as provisions accommodating the rights of persons with disabilities.

Librarians and library patrons aren’t the only parties who could benefit from the A2K treaty. The proposal includes rules protecting '''Internet Service Providers''' from copyright liability, and also mitigates the strict prohibitions on circumvention of encryption contained in several international copyright treaties. Under the proposed treaty, '''nonoriginal''' and '''orphan works''' (those works for which a copyright holder cannot be identified upon reasonable search) would be left in the '''public domain'''. The treaty would also guarantee access to publicly funded research works, government works, and archives of public broadcasting. Finally, the A2K treaty proposal also includes provisions on patent protection, anticompetitive practices, and transfer of technology to developing countries.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

== [[Image:casestudy.png|50px|]] Back to the Case Study ==

To advise Angela, Nadia should review the lists of the member countries of all of the international agreements discussed in this lesson to ascertain whether their country has joined any of those agreements. She should then review the terms of any applicable agreements to determine whether they prevent expansion of the rights of teachers and students to use copyrighted materials without permission. That inquiry will likely require Nadia to consider which of the various interpretations of the three-step test is most sensible, and the extent to which that test limits a country's discretion in recognizing exceptions and limitations for educational purposes. That analysis will be difficult and may require Nadia to consult with fellow librarians.

</div>

==[[image:resource.png|50px|]] Additional resources ==

A thorough discussion of international copyright law may be found in Paul Edward Geller, ed., <i>International Copyright Law and Practive</i> (2 volumes, Matthew Bender), although its coverage of developing and transitional countries is thin. (It is also [http://www.lexisnexis.com/store/catalog/productdetail.jsp?prodId=10440 prohibitively expensive]). Other useful paper treatises include Paul Goldstein, <i>International Copyright: Principles, Law, and Practice</i> (Oxford University Press) and Silke von Lewinski, <i>[http://ukcatalogue.oup.com/product/9780199207206.do International Copyright Law and Policy]</i> (Oxford University Press 2008).

An online course on International Copyright Law, directed at librarians, may be found [http://sla.learn.com/learncenter.asp?page=258 here], but it is also expensive.

An excellent compendium of the copyright laws in over 100 countries has been assembled by [http://portal.unesco.org/culture/en/ev.php-URL_ID=14076&URL_DO=DO_TOPIC&URL_SECTION=201.html UNESCO: Collection of National Copyright Laws].

As indicated above, an especially important component of most international copyright agreements is the three-step test. The most comprehensive and accessible examination of the history and meaning of that test may be found in [http://www.ivir.nl/publicaties/hugenholtz/finalreport2008.pdf P. Bernt Hugenholtz & Ruth L. Okediji, Conceiving an International Instrument on Limitations and Exceptions to Copyright: Final Report, March 06, 2008((.link_red))]. Other good analyses of the three-step test available in print but not online include Martin Senftleben, <i>Copyright, Limitations and the Three-Step Test</i> (Kluwer Law Int'l 2004); and Jane C. Ginsburg, "Toward Supranational Copyright Law? The WTO Panel Decision and the "Three Step Test" for Copyright Exemptions," 187 Revue internationale Du Droit D'Auteur 3, 49 (2001).

A thorough review of the principal exceptions and limitations to copyrights recognized by the main multilateral agreements -- combined with a argument for the clarification and expansion of those exceptions and limitations, emphasizing "the importance of access to creative works for developing countries" -- may be found in [http://www.iprsonline.org/unctadictsd/docs/ruth%202405.pdf Ruth L. Okediji, "The International Copyright System: Limitations, Exceptions and Public Interest Considerations for Developing Countries, International Centre for Trade and Sustainable Development and United Nations Conference on Trade and Development," Issue Paper No. 15 (2006)((.link_green))]. Included in Okediji's essay is an excellent discussion of the Berne Convention Appendix.

For a WIPO study more skeptical of the value of those exceptions and limitations, see [http://www.wipo.int/edocs/mdocs/copyright/en/sccr_9/sccr_9_7.pdf WIPO Standing Committee on Copyright and Related Rights, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment, 9th Session, June 23-27, 2003, WIPO Doc. SCCR/9/7 (April 5, 2003)((.link_green))].

An excellent study of the process of implementing the TRIPS Agreement (including a detailed discussion of the complex processes that led to the revised Bangui Agreement among the OAPI countries) can be found in Carolyn Deere, <i>The Implementation Game: The TRIPS Agreement and the Global Politics of Intellectual Property Reform in Developing Countries</i> (Oxford UP 2009). The Introduction, which sketches the argument of the book, is available online [http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=1405224 here((.link_green))].

For up-to-date information concerning the implementation of the EU Information Society Directive by individual countries, including a good bibliography of scholarly studies of the implementation process, see Instituut voor Infomatierecht (IVIR), [http://www.ivir.nl/files/implementation_2001_29_EC/index_eng.html Report on the Implementation of the Information Society Directive] (2008).

==Cases==

The following judicial opinion and summaries of rulings issued in WTO dispute resolution proceedings explore and apply some of the principles discussed in this module:

[http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61992J0092:EN:HTML Joined Cases C-92/92 and C-326/92, Phil Collins v Imtrat Handelsgesellschaft mbH; Patricia Im-und Export Verwaltungsgesellschaft mbH and Another v EMI Electrola GmbH (1993)((.link_red))] (Applicability of the EEC Treaty to IP rights)

[http://cyber.law.harvard.edu/people/tfisher/IP/Henry%202001.pdf Sarah E. Henry, "The First International Challenge to U.S. Copyright Law: What Does the WTO Analysis of 17 U.S.C. § 110(5) Mean to the Future of International Harmonization of Copyright Laws Under the TRIPS Agreement?," 20 Penn State International Law Review 301 (2001).((.link_green))] (EU vs. US)

[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1516907 Jan Bohanes & Adrian Emch, "WTO Panel Report on China IPR: A Mixed Result," China Law & Practice, pp. 19-20, March 2009((.link_red))] (US vs. China)

== [[image:question.png|50px|]] Assignment and discussion questions ==

'''[[image:assignment.png|50px|]]Assignment'''

1. Which international treaties governing copyright law has your country signed, ratified, and implemented?

2. If your country is a member of the Berne Convention, may your national legislature set the copyright term to either a) 120 years or b) 25 years? Why or why not?

3. Imagine that your country is a member of the Berne Convention, but not of the WTO. Thus, your country is not bound by TRIPS.
* May your national legislature require foreign copyright holders to register their works with your country in order to receive copyright protection?
* If your legislature ''did'' require registration, could other members of the Berne Convention take action against your country? How would your answer be different if your country were also a member of the WTO?

4. Suppose that the fictional country of Atlantis has recently signed and ratified the WCT. Its national legislature wants to implement the treaty. Atlantis only imports software from other countries and it has never before protected them under copyright law. The legislature believes that it is in the interest of Atlanteans to extend as little copyright protection to computer programs as possible. What provisions of the WTC would allow Atlanteans to freely use computer programs?

5. Do you think that both developed and developing countries should have the same rules for copyright protection? Why or why not?

6. Read article 3-1 of the [http://www.cptech.org/a2k/a2k_treaty_may9.pdf draft text of the A2K treaty].
Comment on the importance of one or two provisions for the missions you perform as a librarian.

'''[[image:discussion.png|50px]]Discussion Question(s)'''

Please read the comments on the A2K treaty proposals that your colleagues provided to question 6, above, and comment on one (or more) of them. You may give more examples based on situations you have faced at work, or projects you could develop.

== Contributors ==

This module was created by [[Contributors#vantsiouri|Petroula Vantsiouri]]. It was then edited by a team including [[Contributors#diaz|Sebastian Diaz]], [[Contributors#fisher|William Fisher]], [[Contributors#gasser|Urs Gasser]], [[Contributors#holland|Adam Holland]], [[Contributors#isbell|Kimberley Isbell]], [[Contributors#jaszi|Peter Jaszi]], [[Contributors#maclay|Colin Maclay]], [[Contributors#moshirnia|Andrew Moshirnia]], and [[Contributors#peterson|Chris Peterson]].

{{NavFooter}}

Module 1: Copyright and the Public Domain

2011-05-24T13:13:46Z

Thackett:

[[Image:blocks.png|50px|]]

==[[Image:key.png|50px|]] Learning objective ==

This module explores the basic concepts of copyright law. It provides a general introduction to the elements of copyright important to librarians. Other modules will discuss these topics in detail.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

==[[Image:casestudy.png|50px|]]Case study ==

'''“I want to build a course pack for my students. What material may I include?”'''

Angela, a music professor, is visiting her school’s library to collect material to build a course pack for her students. She would like to include excerpts from books, electronic resources and music scores. She also wants to post selected music and video clips online with her commentary. Nadia, the librarian, will explain to Angela what she may and may not do under copyright law.

</div>

==[[Image:lesson.png|50px|]] Lesson ==

== What Is Copyright? ==

'''Copyright''' is a legal concept that grants authors and artists control over certain uses of their creations for defined periods of time. It limits who may copy, change, perform, or share those creations.

As we saw in the Introduction, there are several views concerning the purposes of copyright law. One view is that copyright law encourages creativity by allowing creators to profit from their work. This goal of copyright is reflected in the wording of many copyright laws. For example, the [http://en.wikipedia.org/wiki/Copyright_Clause "Copyright Clause"] of the United States Constitution states that Congress may grant authors copyright protection for their works for a limited time in order to "promote the progress of science and useful arts." (US Constitution, Article 1, Section 8, Clause 8.) Similarly, the stated purpose of the [http://en.wikipedia.org/wiki/Statute_of_Anne Statute of Anne], the first copyright statute in England, was to "encourage learning." (8 Anne Chapter 19 (1710).) Another view is that copyright law ensures that authors are paid fairly for their effort. A third view is that a creative work is an expression of the personality of its creator, and thus should be protected from being used without the creator's permission.

Although copyright law grants authors many rights in their works, it also limits these rights in many important ways. Most of these limitations are quite specific, but a few are broad. Several, as we will see, enable librarians to use or disseminate copyrighted materials more freely than they otherwise could.

== What Is The Public Domain? ==

The '''public domain''' is the name given to the set of creative works that are not protected by copyright law -- either because they are no longer covered by the limited terms of copyright law, because their creators did not comply with various formal requirements in the past, or because their creators deliberately donated to the public the rights that they might have asserted. As an illustration, suppose the fictional country of Booktonia has a copyright term of 20 years. If a book was written in 1980, the copyright protection for the book in Booktonia would have ended 20 years later, in 2000. Once the copyright in a work expires, the work is said to "fall into" the public domain. Once a work is in the public domain, the restrictions of copyright law no longer apply, and anyone may copy, reuse, or share the work as they wish.

The public domain functions as a pool of creative material from which anyone may draw. It provides authors the raw materials from which the next generation of books, movies, songs, and knowledge can be built. As the 14th century English poet Chaucer (whose work is now in the public domain) [http://www.poetryintranslation.com/PITBR/English/Fowls.htm wrote], "For out of the old fields, as men say, Comes all this new corn, from year to year; And out of old books, in good faith, Comes all this new science that men learn."

== Who Makes Copyright Law? ==

Several [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework international treaties] set standards that all participating countries must follow when adopting or changing their copyright laws. However, within those limits, each nation sets its own laws. Those laws determine who can acquire a copyright, what rights the copyright holder enjoys, and how long the copyright lasts. As a result, copyright law varies significantly from one country to another.

In all countries, copyright law is shaped in part by legislatures, which adopt and often modify copyright statutes, and courts, which adjust and clarify the provisions of the statutes when applying them to particular cases. In so-called '''common law''' countries, courts play somewhat more important roles than they do in so-called '''civil law''' countries, but the difference is not large. In some countries, '''religious legal systems''' also affect copyright rules. A discussion of the three main types of legal system, as well as lists of the legal systems of different countries may be found [http://en.wikipedia.org/wiki/Legal_systems_of_the_world here].

No matter what the legal system, however, copyright law is constantly chanigng to meet new creative, technological, and social challenges. Often those changes are driven by interest groups that seek to benefit their members. The library community has often played important roles in the shaping of copyright law in the past -- and could play even more important roles in the future.

== What Does Copyright Law Cover? ==

Copyright law generally covers all “original works of authorship.” Such original works come in many forms. For example, in almost all countries, all of the following are protected by copyright law:

* literary works (books, articles, letters, etc.);
* musical works;
* dramatic works (operas, plays);
* graphic arts (photographs, sculptures, paintings, etc.);
* motion pictures and audiovisual works (movies, videos, television programs, etc.);
* architectural works; and
* computer software.

In some countries, sound recordings are also covered by copyright law. In other countries, sound recordings are protected by a separate, related set of rules known as “neighboring rights.” In some countries, government works -- such as maps, official reports, and judicial opinions -- are protected by copyright law; in others, they are considered part of the public domain.

It is important to remember that '''copyright never applies to ideas or facts.''' It only covers '''“original expression”''' -- in other words, the distinctive way in which ideas are conveyed. So, for example, the information contained in a science textbook is not protected by copyright law. You are free, after reading a textbook, to write and publish a new book conveying the same information in different words. Similarly, you are free, after reading a work of history, to write a novel incorporating the historical facts.

A few countries (most notably, the United States) require the original expression to be fixed in a '''tangible medium''', like paper or a digital recording format, in order to be protected by copyright law. In those countries, improvisational performances -- for example, of jazz or dance -- are not protected unless their authors record them.

Copyright law covers works that have not been published or even made public. So, for example, private letters, diaries, and email messages are all protected by copyright law.

Some countries used to require published works to be registered with a central office or to carry a copyright notice with the name of the author and the year of publication in order to be protected by copyright law. Such '''formalities''' are no longer necessary for a work to be covered by copyright law. However, registering a copyright may help prove authorship or identify who must be contacted for permission before a work can be reused. In some countries, registration of a work is necessary before the author is permitted to sue someone for copyright infringement. (Foreign authors, however, are exempted from this requirement.) In addition, some countries continue to require publishers to deposit one copy of every new work in a designated office, such as a national library.

== Who Gets A Copyright? ==

A copyright is ordinarily obtained by the creator of a work. If you write a novel, paint a painting, or compose a song, you will generally acquire the copyright in your creation.

The situation is more complicated if you are an employee creating the work as part of your employment. Countries vary a great deal in how they deal with such situations. Typically, in countries that follow the common law tradition, the copyright in a work prepared by an employee within the scope of employment goes to the employer. By contrast, in countries that follow the civil law tradition, the copyright typically goes to the employee. However, in civil-law countries, employment contracts or even copyright law often give employers rights over their employees’ creations similar (though not identical) to the copyrights enjoyed by employers in common-law countries. Finally, in the United States and some other countries, when specific types of works are created in specific circumstances by independent contractors, the contractors and the organizations commissioning the works may agree in writing that the commissioning organizations shall be awarded the copyrights.

== What Rights Come With Copyright? ==

The rights created by copyright law fall into two categories: economic rights and moral rights.

'''Economic rights''' are intended to give authors the opportunity to use their works to make money. These are things that typically only the owner of the copyright may do unless the owner grants permission to others. (Important exceptions to the requirement to obtain the copyright holder's permission, such as fair use and compulsory licenses, are discussed below.) The primary economic rights are:

* the right to reproduce the work -- in other words, to make copies of it;
* the right to create derivative works -- such as translations, abridgments, or adaptations;
* the right to distribute the work -- for example, by selling or renting copies of it;
* the right to perform or display the work publicly.

'''Moral rights''' are designed to protect authors’ noneconomic interests in their creations. Moral rights do not exist in all countries. Generally speaking, they are recognized more widely and are enforced more firmly in civil-law countries than in common-law countries. The primary moral rights are:

* the right of integrity -- for example, the right to prevent the destruction or defacement of a painting or sculpture;
* the right of attribution -- in other words, the right to be given appropriate credit for one’s creations, and not to be blamed for things one did not create;
* the right of disclosure -- the right to determine when and if a work shall be made public;
* the right of withdrawal -- the right (in certain limited circumstances) to remove from public circulation copies of a work one has come to regret.

'''Neighboring rights''', sometimes called related rights, are close cousins of copyright. The oldest and best known neighboring rights are economic rights granted to persons who are not authors of a work but who contribute to its creation -- such as performers, producers, and broadcasting associations.

Some countries also have privacy and publicity rights that complement copyright. For example, some countries prevent the public distribution of works that contain personally identifiable information, unless permission is granted by that person.

== The Limits of Copyright ==

The rights described above are subject to important limitations. First, as mentioned above, many older books, articles, recordings, and other works are part of the '''public domain.''' These materials may be used by anyone for any purpose. Unfortunately, it is not always easy to figure out when a particular work has fallen into the public domain. [http://en.wikipedia.org/wiki/Wikipedia:Copyright_situations_by_country This directory((.link_red))] contains some helpful information on how long the term of copyright lasts in different countries around the world. It also has useful tips on when a work enters the public domain. Sometimes, a copyright holder will dedicate a work to the public domain before the copyright expires, much like a landholder will sometimes donate property to a town so it may become a park. In these instances, the work becomes free to use immediately.

In addition, the copyright laws of every country include '''exceptions and limitations''' to copyright. These identify activities that users can do without fear of violating copyright. While these exceptions vary by country, some common examples include copying for personal use, quoting short passages of literary works for the purposes of criticism; photocopying for archival purposes by libraries; and converting works into formats accessible by handicapped persons. Other exceptions are broader and less well defined, such as the '''fair-use doctrine''' of the United States and the '''fair dealing''' doctrines employed in some African countries.

Finally, most countries have '''compulsory licensing''' systems for certain types of works. Under a compulsory licensing system, copyright holders are required to permit certain uses of their works as long as the user pays a fee set by a government agency or courts. Such regimes are becoming increasingly common.

== Copyright Licenses ==

If none of these exceptions or limitations apply, it may still be possible to make use of a copyrighted work. In order to do so, the user must obtain a '''license''' from the copyright holder that gives the user permission to use the content in a particular way. The copyright holder may demand a fee for such use, or may allow the use for free. The license should be specific and in writing in order to avoid confusion.

It is not always necessary to contact the copyright holder directly to obtain a license to use their works. Many countries have '''collecting societies''' (also known as collective administration organizations) that act as agents for large numbers of copyright holders. Such organizations now administer licenses pertaining to a wide variety of uses of copyrighted materials. Examples include broadcasts of musical composition and the use of various modern technologies to reproduce graphics works or literary works.

Another set of organizations assist and encourage those copyright holders who are willing to give away some of their rights for free. The most famous of these are [http://creativecommons.org/ Creative Commons] and the [http://www.fsf.org/ Free Software Foundation], but others are emerging.

<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">

==[[Image:casestudy.png|50px|]] Back to the case study ==

Nadia (the librarian) should help Angela (the professor) organize the set of materials she has gathered by asking a series of questions:

* Are any of the materials in the public domain?
* Are any of the remaining materials licensed under a Creative Commons license or a similar set of terms that allow their use?
* Are any of the remaining materials freed for use by any of the statutory exceptions contained in their nation's copyright statute?
* Does the library already own a license to use the materials in the way Angela proposes?

If the materials are in the public domain, are licensed freely under a Creative Commons license, are covered by a statutory exemption, or are included in existing licenses, they may be used. If not, Angela will need to obtain permission from the copyright holder or a collective rights organization.
</div>

==[[image:resource.png|50px|]] Additional resources ==

A comprehensive discussion of the aspects of copyright law that affect librarians -- and, in particular, librarians in developing countries -- may be found in the [http://www.eifl.net/eifl-handbook-copyright-and-related-issues eIFL Handbook on Copyright and Related Issues for Libraries((.link_green))].

Carol C. Henderson, “[http://www.ala.org/ala/issuesadvocacy/copyright/copyrightarticle/librariescreatures.cfm Libraries as Creatures of Copyright: Why Librarians Care about Intellectual Property Law and Policy((.link_green))],” 1998.
The former Executive Director of the Washington Office American Library Association discusses the roles played by librarians in maintaining copyright balance.

[http://www.economist.com/debate/overview/144 A short debate between Professors William Fisher and Justin Hughes((.link_red))], organized in May 2009 by the Economist magazine, examines the merits and demerits of the copyright system.

The [http://www.21coe-win-cls.org/rclip/e_index.html Research Center for the Legal System of Intellectual Property (RCLIP)], in cooperation with the [http://www.law.washington.edu/casrip Center for Advanced Study & Research on Intellectual Property (CASRIP)] of the University of Washington School of Law, is building [http://www.21coe-win-cls.org/rclip/db/search_form.php a comprehensive database of court decisions] involving intellectual property (including copyright law) in every country throughout the world. The database is not yet complete, but already constitutes a highly valuable research tool, particularly for Asian countries.

A map, prepared by William Fisher, describing the main features of copyright law in the United States and, to a limited extent, other countries, is available [http://cyber.law.harvard.edu/people/tfisher/IP/IP%20Maps.htm here((.link_green))].

“[http://cyberlaw.stanford.edu/documentary-film-program/film/a-fair-y-use-tale A Fair(y) Use Tale]” is a 2008 short movie on copyright and fair use in the US.
According to the synopsis, “professor Eric Faden of Bucknell University created this humorous, yet informative, review of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms.”

The documentaries, [http://www.stealthisfilm.com/Part1/ Steal This Film Part I] (2006) and [http://www.stealthisfilm.com/Part2/ Steal This Film Part II] (2007), produced by The League of Noble Peers, offer entertaining and highly critical views of the recent trend toward strengthening the rights of copyright owners, particularly with respect to the unauthorized sharing of music and movies.

A [http://www.librarycopyright.net/digitalslider/ helpful guide to determining which works have fallen into the public domain in the United States] has been provided by Michael Brewer and the American Library Association Office for Information Technology Policy.

[http://www.youtube.com/watch?v=ZblrRs3fkSU A Librarian's 2.0 Manifesto] offers a provocative conception of the responsibilities of librarians, particularly in an environment characterized by rapid technological change.

==Cases==

The following judicial opinion explores and applies some of the principles discussed in this module:

[http://www.ipsofactoj.com/international/2001/Part10/int2001%2810%29-013.htm Telegraph Group, Ltd. v. Ashdown, Part 10 Case 13 (Court of Appeal, England & Wales, 2001)((.link_red))] (the relationships among freedom of expression, the public interest, and intellectual property rights)

== [[image:question.png|50px|]] Assignment and discussion questions ==

'''[[image:assignment.png|50px|]]Assignment'''

Answer one of the following questions:

1. Explain briefly what copyright law attempts to protect, as well as what freedoms are reserved for or available to the public.

2. Which (if any) of the justifications for copyright law make sense to you?

'''[[image:discussion.png|50px]]Discussion Question(s)'''

Select one of the answers that your colleagues provided to the Assignment questions, and comment on it. Explain why you agree or disagree. Do not hesitate to give examples you have faced as an author, as a member of the public, or as a librarian.

== Contributors ==

This module was created by [[Contributors#rosnay|Melanie Dulong de Rosnay]]. It was then edited by a team including [[Contributors#diaz|Sebastian Diaz]], [[Contributors#fisher|William Fisher]], [[Contributors#gasser|Urs Gasser]], [[Contributors#holland|Adam Holland]], [[Contributors#isbell|Kimberley Isbell]], [[Contributors#jaszi|Peter Jaszi]], [[Contributors#maclay|Colin Maclay]], [[Contributors#moshirnia|Andrew Moshirnia]], and [[Contributors#peterson|Chris Peterson]].

{{NavFooter}}

Main Page

2011-05-24T13:09:50Z

Thackett:

__NOEDITSECTION__
{| style="border:0; margin: 0;" width="100%" cellspacing="4"

| valign="top" style="width:55%; padding:0; border:1px solid #ffcc00; margin-bottom:3px;" |

<div style="font-size: 105%; font-weight:bold; padding:0.4em; background-color:#ffffcc; border-bottom:1px solid #ffcc00; text-align: center;">Preface</div>
<div style="background:#ffffff; padding:0.2em 0.4em 0.2em 0.4em;">
{| style="border: 0; margin: 0;" cellpadding="3"
| valign="top" |
=== Objectives ===

Copyright for Librarians is a joint project of the [http://cyber.law.harvard.edu/ Berkman Center for Internet & Society] and [http://www.eifl.net/ Electronic Information for Libraries (eIFL)], a consortium of libraries from 50 countries in Africa, Asia and Europe. The goal of the project is to provide librarians in developing and transitional countries information concerning copyright law. More specifically, it aspires to inform librarians concerning:
*copyright law in general
*the aspects of copyright law that most affect libraries
*how librarians in the future could most effectively participate in the processes by which copyright law is interpreted and shaped.

=== How to Use this Course ===

The course materials can be used in three different ways. First, they can provide the basis for a self-taught course. A librarian can read the modules in sequence or focus on the modules that address issues that interest him or her.

Second, the course materials can be used in a traditional classroom-based course. In such a setting, the instructor will determine the pace at which the materials are read and will select topics for discussion. The instructor may find useful the Assignments we have included in the modules, but will likely pose additional questions as well.

Third and finally, the materials can be used in a distance-learning course. An instructor will guide the inquiry, but the librarians taking the course will participate remotely through their computers. To assist the instructors in such settings, we have included a discussion tool, originally developed at the Berkman Center, known as the Rotisserie. A manual explaining to instructors how they might use the Rotisserie is available [http://cyber.law.harvard.edu/copyrightforlibrarians/How_to_prepare_a_Rotisserie_session here]. Instructions explaining to students how to sign up for and use the Rotisserie are available [http://cyber.law.harvard.edu/copyrightforlibrarians/Information_about_the_Rotisserie_Session here]. This system can be used to facilitate conversations among the students concerning the Assignments we have included in each module. Alternatively, an instructor could identify different questions for discussion.

=== Levels ===

Not all users will have the time or interest to read all of the materials contained in this curriculum. Recognizing this, we have arranged and marked the materials in ways that should assist instructors and users in deciding how deeply to explore this subject. Specifically, the materials are organized into five levels:

* Level 1 (appropriate for users who want a basic knowledge of how copyright law affects the work of librarians in developing and transitional countries): Read modules 1, 3-7. (In other words, skip the Introduction and modules 2, 8, and 9.)

* Level 2 (appropriate for users who are also interested in the theory underlying copyright law and in the international dimensions of copyright law): Read the Introduction and all of the modules.

* Level 3 (appropriate for use in a one-semester undergraduate course in this subject or for users who wish to obtain an in-depth understanding of the field and to see how legislatures and courts are struggling to refine and apply copyright law): Read all of the modules and, in addition, all of the documents marked with red links.

* Level 4 (appropriate for use in a graduate-level course in this subject): Read all of the modules and, in addition, all of the documents marked with red and green links.

* Level 5 (appropriate for a faculty member preparing to teach this subject): Read all of the modules and, in addition, all of the documents marked with red, green, and blue links.

===Off-Line Usage===

Some users will find it more convenient to use these materials off-line. They are provided for off-line use in two formats. First, the materials have been packaged as a [[Offline ISO|ISO]] that can be [[Offline ISO|written to a CD-ROM]] and viewed with any browser (such as [http://www.google.com/chrome Chrome], [http://www.mozilla.com/firefox/ Firefox], [http://www.microsoft.com/windows/internet-explorer/default.aspx Internet Explorer], [http://www.opera.com/ Opera], [http://www.apple.com/safari/download/ Safari], etc). Second, the materials have also been packaged as a [[Offline PDF|PDF]] document that can be [[Offline PDF|viewed and printed]] with any PDF viewer (such as [http://get.adobe.com/reader/ Adobe Acrobat], [http://gnome.org/projects/evince/ Evince], [http://www.ghostscript.com/ GhostScript], [http://en.wikipedia.org/wiki/Preview_(software) Preview], etc).

An effort has been made to include all links to relevant material in both the CD-ROM and printable versions. However, in order to access content that is external to the course materials contained on this site, an internet connection is necessary.

===Permissions===

The course materials prepared by the project are licenced under a [http://creativecommons.org/licenses/by/3.0/ Creative Commons Attribution license]. Librarians and the public at large are encouraged to use, distribute, translate, modify, and build upon these materials, provided that they give eIFL and the Berkman Center appropriate credit.

===Disclaimer===

This course does not offer legal advice. It provides general information concerning the principles that underlie the copyright system, and it indicates how various concrete problems are resolved in most countries. It cannot, however, provide reliable guidance concerning how a court in a specific country would respond to a specific set of facts. Thus, if you find yourself coming close to any of the legal boundaries described in these materials, you should consult a lawyer in your own jurisdiction.

===Help Us Improve the Course===

We hope to update and refine these materials periodically. To do so, we need help from users. Please let us know if a piece of information contained in a module is incorrect or out of date. If you have suggestions concerning either the content of the modules or the way in which the content is presented, we are eager to hear them. Finally, librarians are strongly encouraged to let us know how the issues addressed in the modules are handled in their home countries; we will try to include that information in future versions.

You can make these suggestions in either of two ways. First, if you would like your suggestion to be available to the public, please click on the "Discussion" tab at the top of the module page to which your suggestion is relevant. Second, you can simply email us at [mailto:cfl-feedback@cyber.law.harvard.edu cfl-feedback@cyber.law.harvard.edu].

We look forward to your contributions.

The EIFL and Berkman teams
|}

</div>

| valign="top" style="width:40%; padding:0; border:1px solid #ffcc00; margin-bottom:3px;" |

<div style="font-size: 105%; font-weight:bold; padding:0.4em; background-color:#ffffcc; border-bottom:1px solid #ffcc00; text-align: center;">Contents</div>
<div style="background:#ffffff; padding:0.2em 0.4em 0.2em 0.4em;">
{| style="border: 0; margin: 0;" cellpadding="3"
| valign="top" |

'''[[Introduction]]'''

'''Course Materials:'''
* '''[[Module 1: Copyright and the Public Domain]]'''
* '''[[Module 2: The International Framework]]'''
* '''[[Module 3: The Scope of Copyright Law]]'''
* '''[[Module 4: Rights, Exceptions, and Limitations]]'''
* '''[[Module 5: Managing Rights]]'''
* '''[[Module 6: Creative Approaches and Alternatives]]'''
* '''[[Module 7: Enforcement]]'''
* '''[[Module 8: Traditional Knowledge]]'''
* '''[[Module 9: Activism]]'''
* '''[[Glossary]]'''
'''[[Contributors]]'''

'''The Rotisserie'''
* for students: '''[[Information about the Rotisserie Session]]'''
* for instructors: '''[[How to prepare a Rotisserie session]]'''

</div>