Understanding our nation’s copyright law is important, but also complex. The below glossary of key copyright terms is a resource to help promote informed discussions about copyright policy.
The US Copyright Office: Housed within the Library of Congress, the US Copyright Office (USCO) is the United States government body that creates and maintains records of copyright registrations and other transactions, provides deposit copies of registered works to the Library of Congress, provides copyright information to the public, and provides expert advice to Congress, the Judiciary, and federal agencies. Although the USCO is part of the Legislative branch, many of its activities are subject to the Administrative Procedures Act (APA) rules that govern executive agencies. The USCO administers the triennial DMCA rule making, is home to the Copyright Claims Board small claims court, and advises the Copyright Royalty Board.
Scenes-a-faire: Scenes-a-faire are scenes or elements in a genre of copyrighted works that are common, customary, or even obligatory in that genre. For example, the “meet cute” scene is ubiquitous in romantic comedies. In copyright law, the term “scenes a faire” refers to the fact that “a copyright owner can’t prove infringement by pointing to features of his work that are found in the defendant’s work as well but that are so rudimentary, commonplace, standard, or unavoidable that they do not serve to distinguish one work within a class of works from another.” Bucklew v. Hawkins, Ash, Baptie & Co., 329 F.3d 923, 929 (7th Cir. 2003). So, although Reality Bites and Before Sunrise both have (excellent) meet cute scenes, that doesn’t mean one movie is an infringement of the other; the meet cute device belongs to us all and is free for any writer to adapt in their own new work.
Digital Millennium Copyright Act (DMCA): Congress passed the DMCA in 1998 to update U.S. copyright law for the digital age. The DMCA attempts to strike a balance between copyright holders, internet platforms, and consumers, establishing a foundational framework for limiting online copyright infringement while still accommodating free expression and innovation. The two main elements of the DMCA were a new protection for so-called “technological protection measures” (digital locks used to prevent unauthorized use or sharing of digital content) and a safe harbor for internet platforms who comply with a notice-and-takedown framework.
Public domain: The public domain is the treasure trove of material that is free for all to copy, share, and reuse for any lawful purpose. It includes not only creative works that are not subject to copyright, but also aspects of copyrighted works–such as the facts and ideas they communicate, or elements of style and genre they embody–that are basic building blocks of creativity. Works most often enter the public domain because their copyright has expired, but works of the U.S. government are exempt from copyright immediately, as are facts, ideas, and other basic building blocks contained in creative works.
Originality: Copyright only protects original works of expression, not facts, ideas, or discoveries. Any work or aspect of a work that is not original to the author – a fact they discover in the world, for example – is exempt from copyright, and can be shared and reused freely by others.
Copyright: An exclusive legal right given to the creator or an assignee of an original work of authorship that is fixed in any tangible medium of expression currently known or later developed. In the United States, a copyright is not dependent upon registration of the work. Exclusive owners of a copyright may provide a license to another party to create copies of the work. Protection does not extend to an idea, procedure, process, system tile, principle or discovery.
DMCA Section 512 safe harbors: The DMCA safe harbors refer to legal protections for those on the internet that host, store, transmit, locate, or cache content uploaded by others. The power of the internet to help people create, share and access content depends on intermediary third parties – from Internet Service Providers (ISPs) to search engines to websites and hosting providers. These entities are able to perform their respective roles in the internet ecosystem because they are not held legally responsible for copyright issues arising from the countless documents, images or audiovisual works traversing the internet at any given moment. As long as they comply with Section 512’s rules, service providers and platforms do not face copyright penalties for the actions of their users. Each service provider may have its own takedown policies, but it must follow the guidelines in Section 512 of the DMCA to gain the protection of the safe harbor.
Notice and takedown: Housed within section 512(c) of the Copyright Act, it is a process in which infringing content is reported by a copyright holder and the online service provider or internet service provider removes it upon review.
Fair use: Fair use is a critical right that permits the public to use portions of copyrighted material without permission from the copyright owner, under certain circumstances, to engage in a wide variety of vital activities. It enables new technologies, and is a cornerstone of free speech, creativity and the economy. Fair use industries account for 16% of the U.S. economy and generate $5.6 trillion in annual revenue. Examples of fair use include educational use, search engines, internet memes, parody and quoting from a news article or academic study. Fair use also allows people to make entirely new uses of copyrighted works that courts and Congress have never contemplated. In the U.S., it is codified under Section 107 of the Copyright Act and has been interpreted broadly by our judicial system.
The four factors used to determine if something is protected by fair use include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. and the effect of the use upon the potential market for or value of the copyrighted work.
New creative economy: The growing economic sector representing people who earn revenues on the internet from posting and sharing their music, videos, art, crafts and other creative works on online platforms without going through traditional gatekeepers such as publishers, record companies and movie studios. In 2017, the American new creative economy was comprised of nearly 17 million independent creators who earned a baseline of almost $6.8 billion.
Content filtering: The practice of companies employing automated or human controlled filtering systems to take down or prevent upload of content that is believed to be infringing on a creator’s copyright.
DMCA Section 1201: Section 1201 of the DMCA makes it illegal to circumvent technological protection measures (TPMs) on software and other copyrighted works. From cellphones to farm equipment, e-readers and iPads to video games, TPMs are software that prevents a user from copying or making changes to a work, even if those changes are lawful. For example, it is legal to make a copy of a DVD for personal use, but TPMs loaded onto the DVD prevents one from doing so; circumventing the TPMs is not lawful. Other recent examples where this has come into play include cellphone unlocking, making devices accessible for disability communities and the right to repair or alter a car with software. Under Section 1201, every three years (last conducted in 2018) the Copyright Office, in consultation with the National Telecommunications and Information Administration, reviews applications to allow circumvention of TPMs. Only the Librarian of Congress can approve the exemptions, which are then adopted for a three-year period before users must re-apply for another exemption.
Copyright term: The current length of a copyright for an individual is the life of the author, plus 70 years. For corporate works, the term is 95 years from first publication or 120 years from creation, whichever happens first. Copyright term plays an important role in our society and economy, and needs to be balanced between encouraging creation and moving works into the public domain.
Copyright troll: An entity that aggressively enforces copyrights for the purpose of making money through mass litigation or the threat of litigation. Similar to a patent troll, copyright trolls do not advance the Constitutional intent of copyright, which is to promote the progress of science and arts.
Statutory damages: Copyright law provides plaintiffs that register their copyrights with statutory damages, meaning they can recover damages from infringers – regardless of whether the rightsholders have suffered any actual injury. Statutory damages currently range between $750 and $30,000 for each work infringed on, and up to $150,000 in cases involving willful infringement. Statutory damages are unpredictable, varying widely from case to case, and they can often lead to bankruptcy.
Library of Congress: The Library of Congress is the largest library in the world and serves as the main research arm of the U.S. Congress and the home of the U.S. Copyright Office. Home to 170 million works, it provides access to sources of knowledge and plays an important role in fostering creativity. Led by Librarian of Congress Dr. Carla Hayden, the Library is undergoing a modernization effort which includes a digital strategy to sustain and expand services to all users.
Copyright Office: Housed within the Library of Congress, it is the official United States government body that maintains records of copyright registrations, and provides legal advice to Congress, the Judiciary, and federal agencies. The Copyright Office is not a federal agency subject to the Executive as it is housed within the Legislative branch.
Register of Copyrights: Appointed by the Librarian of Congress, the Register is the director of the United States Copyright Office. Her duties include overseeing the Copyright Office’s procedures and practices and establishing standards for the registration of copyrights. The Register also provides advice to Congress on copyright issues. The current Register of Copyrights is Karyn Temple.