Copyright Glossary

Agency

This legal term is used by the courts to describe a relationship where one party (the principal) has the right to control the actions of another party (the agent). For purposes of copyright law, the author of the work of expression may be considered a hiring party’s employee if an agency relationship exists between them, even if there is no formal employment relationship. Under copyright law, a work of expression created by an employee in the course of his or her work is considered a work made for hire, which means that the copyright in the expression belongs to the hiring party.

Archival Copies

The Computer Software protection Act of 1980 defines archival copies as copies of software made by a software owner strictly for backup purposes. The Act permits a computer program owner to make archival copies of the program as long as the owner retains the original copy of the program. If the original is sold or given to a new owner, all archival copies must either be included in the transfer or destroyed.

Author

The “author” of a work of expression subject to copyright protection is one of the following:

• the person(s) who creates the expression.
• the person(s) or business that pays another to create the expression in the employment context, or
• the person(s) or business that commissions the work under a valid expression made for hire contract.

The creator of any copyrightable work, whether that work is a book, photograph, painting, poem, play, musical composition, or other sort of work. The exception to this is a work-for-hire; if a work-for-hire, the employer of the creator of the copyright owns the copyright from the inception of the work and is considered the author of the work for the purposes of copyright.

Certificate of Registration

When the United States Copyright Office approves a copyright application for registration, it mails the author (or other owner) a certificate of registration. This certificate consists of the copyright application stamped with a copyright registration number, the registration date and the U.S. Copyright Office seal at the top.

Copyright

Copyright is an exclusive right granted by a government to “authors” to copy, adapt, distribute, rent, publicly display, their works of authorship, such as literary works, databases, musical works, sound recordings, photographs and other still images, motion pictures, and other audiovisual expressions.

Copyright Notice

A copyright notice is an identifier placed on copies of a work to inform the world of copyright ownership that generally consists of the symbol or word “copyright,” the name of the copyright owner, the year of first publication, e.g., ©2005 Jane Doe. The copyright notice was once required as a condition of copyright protection, it is now optional.

Digital Millennium Copyright Act of 1998

This federal statue addresses a number of copyright issues created by the increasing use of the Internet for commerce in expressions protected by copyright. The Act outlaws attempts to get around technological devices used by publishers to keep their expressions from being copied. The Act also prohibits the production, marketing or sales of a device or service to circumvent these technological protections.

Fair Use

Fair use is a limited doctrine providing for certain exceptions when permission is not required to use portions of copyrighted works. NOTE: Using software usually requires copying the entire program, fair use in this case is rare. The Copyright Act of 1976, as amended in 1992, authorizes any person to make “fair use” of a published or unpublished copyrighted expression in these contexts:

• in the connection with criticism of or comment on the expression
• in the course of news reporting
• for teaching purposes, or
• as part of scholarship or research activity.

Whether or not a particular instance of copying without permission qualifies as a fair use is decided on a case-by-case basis and depends on four basic factors:

• the purpose and character of the use, including whether such use is of a commercial nature or for nonprofit, educational purposes
• the nature of the copyrighted expression
• the amount and substantiality of the portion used in relation to the copyrighted expression as a whole, and
• the effect on the use upon the potential market for, or value of, the copyrighted expression.

First Sale Doctrine

The purchaser of a legal copy of a copyrighted expression is generally entitled to treat that copy in any way he or she desires, as long as the copyright owner’s exclusive copyright rights are not infringed. This means the copy can be destroyed, sold, given away or rented. Computer software is an important exception to the first sale doctrine.

Infringement

In a general sense, copyright infringement occurs when a copyrighted expression is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. Any unauthorized use of a copyrighted expression (other than fair use) that violates the copyright owner’s exclusive rights in the work constitutes an infringement. Copyright infringement is judged by a three part circumstantial test:

• Did the accused infringer have access to the work that is said to have been infringed, in order to make copying possible?
• Is the defendant actually guilty of copying from the plaintiff’s work part of the plaintiff’s protectable expression?
• Is the accused work substantially similar to the work the plaintiff says was copied?

Public Domain

“Public domain” is not a place, but rather a concept where a work of authorship is no longer under copyright protection or the author “releases” the work to the general public to use without compensation.

TEACH Act

On November 2nd, 2002, the "Technology, Education and Copyright Harmonization Act" (the TEACH Act), part of the larger Justice Reauthorization legislation (H.R. 2215), was signed into law by President Bush. TEACH redefines the terms and conditions on which accredited, nonprofit educational institutions throughout the U.S. may use copyright protected materials in distance education-including on websites and by other digital means--without permission from the copyright owner and without payment of royalties.

Works Made for Hire

see Agency.