Glossary

ACTA

Anti-Counterfeiting Trade Agreement. An international agreement under closed negotiation which seeks to address, among other things, piracy of intellectual property across borders. The agreement is controversial, partially, for the secrecy in which it is being conducted.


Affirmative Defense

In a law suit, a defense which accepts the allegations, but which challenges the plaintiff's right to damages or injunctive relief. Fair use is a common affirmative defense in copyright cases.


Audiovisual works

For copyright purposes, "works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied." (17 USC §1)


Berne Convention

"The Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto." (17 USC §1)
Best edition: "The best edition of a work is the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes." (17 USC §1)


Collective work

As defined by Title 17, collective consist of works "such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole." (17 USC §1). Note that each component of a collective work, being a separate and independent work, is also a work that is individually subject to the exclusive rights defined in 17 USC §6.


Copies

As defined by statute, "copies" refers to "material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed" (17 USC §1). Note that both "copy" and "phonorecord" refer to material objects, but "copy" refers only to those which do not consist of recorded sound. Both the original item and any duplicates are considered "copies."


Derivative Works

Works which are "based on preexisting works." (17 USC §1) Derivative works may include arrangements, translations, dramatizations, sequels, editions, recordings, or any case in which one work is either modified, or is substantially used to create another work. Derivative works are subject to copyright just as the original is, but the right to create derivative works is one of the exclusive rights reserved for the copyright holder.


Display

For copyright purposes, display refers to the showing of a copy of a work, whether directly or through a device such as a projector or television. (17 USC §1).
DMCA: The Digital Millennium Copyright Act (1998), codified in chapter 12 of the United States Code. See especially 17 USC §01


Exclusive rights

In this context, rights to which the copyright holder is alone entitled. The exclusive rights for most works are limited to those specified in 17 USC §6. Works of art, under certain circumstances, are given additional rights in 17 USC §6A.


Fair Use

A privilege and affirmative defense, recognized by both courts and statute, which allows for copying of material without permission under certain circumstances. See What is fair use?


First Sale Doctrine

The principle that the copyright owner's right to sell copies of a copyrighted work extends only to the first sale of that copy that anyone is entitled to sell a copy of a copyrighted work, if they are the legitimate owner of that copy. In U.S. law this is contained in 17 USC §9.


Fixation

"A work is 'fixed' in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." (17 USC §1) Fixation is a requirement for copyright protection, but note that the fixation must be authorized by the author. See also: Cartoon Network v. CSC Holdings.


GATT

General Agreement on Tariffs and Trade


Orphan Work

Works which are under copyright, but whose owner (or the estate) either cannot be found or cannot be identified.


Performance

For copyright purposes, to "recite, render, play, dance, or act" a work, whether directly or through the use of devices, including electronic playback equipment. For audiovisual works, performance includes the showing of the images, or the audible transmission of the sound, or both. (17 USC §1)


Performing Rights Society

Any company which licenses non-dramatic musical works on behalf of their copyright owners. Performing Rights Societies in the United States include ASCAP, BMI and SESAC. (17 USC §1)


Phonorecord

"Material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term phonorecords includes the material object in which the sounds are first fixed." Note that both "copy" and "phonorecord" refer to material objects, but "phonorecord" refers specifically to those which consist of recorded sound. Both the original item and any duplicates are considered "phonorecords." (17 USC §1)


Public

When used in the context of performance or display, "public" refers to a place which is open to the public, or one which a "substantial number of persons outide of a normal circle of a family and its social acquaintances is gathered." A performance or display can also be public when it is transmitted to members of the public, who "receive it in the same place or in separate places and at the same or at different times." (i.e., a broadcast). (17 USC §1)


Public Domain

The body of literature that is not subject to copyright protection, either because it does not qualify for protection or because the copyright term has lapsed.


Publication

"The distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication." (17 USC §1)


Sound Recording

For copyright purposes, "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied." (17 USC §1)


Supremacy Clause

Article VI, clause 2 of the United States Constitution, which sets the U.S. Constitution, treaties and federal laws as the supreme law of the land, giving Congress the power to preempt state laws with Federal legislation.


UCITA

Uniform Computer Information Transactions Act. A proposed law to bring uniformity to laws governing software licensing and its ilk.


URAA: Uruguay Round Agreements Act

The law, passed by Congress in 1994, implemented the Uruguay Round of GATT in the United States. For copyright purposes the law is important for having brought numerous works into copyright protection which had been in the public domain. The copyright portions of the act appear principally in 17 USC §4A.


WCT: WIPO

Copyright Treaty, which was "concluded at Geneva Switzerland, on December 20, 1996." (17 USC §1) The United States ratified the WCT on September 14, 1999, and the treaty came into force on March 6, 2002.


WIPO

World Intellectual Property Organization.
Work for hire: Any work made within the scope of employment. In general, unless otherwise specified by contract, the employer is the copyright owner of all works for hire. This includes works commissioned as supplemental additions to other works, such as translations. (17 USC §1)