Intellectual Property Book Excerpt

Below you will find the front matter and a three-chapter excerpt from my intellectual property book that I hope you may find useful. It is provided here in simple “cut and pate” fashion and is not formatted in accordance with the soft cover edition or Kindle versions of the book. If you are interested in additional information, you can find the book on Amazon.com. For additional information and links to my book length publication, you can visit  my author’s page at Amazon or my web page (victordlopez.com).

_____________________________

Intellectual Property Law:

A Practical Guide to Copyrights, Patents,

Trademarks and Trade Secrets

 

 

Victor D. López, J.D., Esq.

Associate Professor of Legal Studies

Hofstra University

Frank G. Zarb School of Business

©2011 by Victor D. López

No portion of this copyrighted book may be copied, posted, transmitted or otherwise used in any form without the express written consent of the author.

For Kenneth J. Ansley

and

Emilio, Nieves, Susana, Osvaldo and Oscar  Gordedo (Rubén Gordé),

with much love and gratitude.

About the Author

          Victor D. López is currently an Associate Professor of Legal Studies at Hofstra University’s Frank G. Zarb School of Business. He holds a Juris Doctor degree from St. John’s University School of Law and is a member of the New York State bar. His professional affiliations include membership in the New York State Bar Association, the Academy of Legal Studies in Business (ALSB), and the North East Academy of Legal Studies in Business (NEALSB). He also serves as a reviewer for several peer-reviewed journals and is currently serving as President of the North East Academy of Legal Studies in Business (2011-2012). He has also served the organization as vice-president (2009-2010) and as program chair of the 2011 NEALSB Annual Conference.

In addition to publishing revised and expanded editions of two college textbooks in the past two years through his new publisher, Textbook Media Publishing, he has presented articles at academic conferences and published scholarly articles over the past five years in a range of subjects that include immigration law, bankruptcy law, unauthorized practice of law, state and federal efforts to regulate the high cost of college textbooks, and leadership ethics. Since 1990, he served as a Professor of Business for 12 years at SUNY Delhi and more recently as the dean of the business division at Broome Community College for four years immediately prior to joining the Hofstra University faculty. He has served as a professor and dean at other academic institutions since 1987.

Other books by Victor D. López

  • Business Law: An Introduction 2e (Textbook Media 2011)
  • Business Law and the Legal Environment of Business 2e (Textbook Media 2010)
  • Free and Low Cost Software for the PC (McFarland & Company 2000)
  • The Legal Environment of Business 1/e (Prentice Hall 1997)
  • Case and Resource Materials for the Legal Environment of Business (Prentice Hall 1997)
  • Business Law: An Introduction 1/e (Irwin / McGraw Hill)
  • Free and User-Supported Software for the IBM PC: A Resource Guide for Libraries and Individuals (McFarland & Company 1990) (Co-authored with Kenneth J. Ansley)


 

A Note to My Readers

         This book is intended as both a primer on intellectual property law and as a general reference for authors, artists, musicians, librarians, entrepreneurs and others interested in learning about intellectual property law and the processes for obtaining copyrights, trademarks and patents in the U.S. and through international agreements. The main text provides a brief orientation on the relevant law and on the process and cost of applying for patents and trademarks through the U.S. Patent and Trademark Office and copyrights through the U.S. Copyright Office. In order to make this book as useful as possible as a one-stop reference resource, I have collected and included selective statutory materials, sample forms, and other useful resources in appendices to provide greater depth and context for the material presented in the main text. All of the information in the appendices is available online, but some of it can be difficult to find even if you know what to look for and where to look.

As you use this book, keep in mind that it can only offer general reference materials and information. While this book will provide you with timely, useful information and show you where you can find additional resources available free of charge from both the federal government and every state, it does not offer legal advice. Only an attorney can provide you with legal advice tailored to your specific needs and neither this book nor any of the self-help advice offered by various national services that assist consumers with document preparation, including the creation and filing of patent, trademark and copyright applications, is a substitute for the advice of an experienced lawyer.

Acknowledgments

 

          I am poor in all things save in the quality of my family and friends. The individuals to whom I have dedicated this and my previous seven books have had an enormous influence in my life, as have others as yet unacknowledged. If able, I hope to correct that in the future. In case that opportunity is not open to me, I would at least like to express my gratitude for the privilege of the transformative nature of their friendship that time, distance and life can never change: Maria Luisa Seoane (Marisita), José Naveira (Tio Pepe), Maria Olga Naveira Calviño (Olguita), Francisco Naveira (Tio Paco), Claude and Cathy Morell, and Bill Raynor.

I would also like to acknowledge the support of Hofstra University’s Frank G. Zarb School of Business of my research, publication and professional development efforts, including the summer research grants that facilitated the research, writing and publication of various scholarly articles over the past three years.

Table of Contents

Chapter 1: A Brief Introduction to U.S. Law 1

The Common Law and Civil Law Traditions. 1

The Civil Law Tradition 1

The Common Law Tradition 3

The Complexity of U.S. Law 3

Use Available Resources Wisely 4

Chapter 2: General Introduction to Copyright Law 5

Introduction 5

Exclusive Rights in Copyrighted Works 6

Chapter 3: Limitations on the Exclusive Rights of Copyright Owners 9

Fair Use Limitations of Exclusive Rights 9

Reproduction by Libraries and Archives 10

Chapter 4: Copyright Ownership, Creation and Transfer 12

Copyright Ownership and Transfer 12

The Difference Between Ownership of a Copyright 12

and Ownership of Physical Objects 12

Duration of Copyright 13

The Process of Securing a Copyright 14

Chapter 5: Copyright Registration 16

General Rules for Copyright Registration 16

Application for Copyright Registration 16

Chapter 6: Remedies for Infringement and Criminal and Civil Sanctions 19

Civil Remedies for Infringement 19

Criminal Penalties for Infringement 20

 

Chapter 7: General Introduction to Patent Law 23

Patent Application 24

Patent Specifications 24

Drawings 25

Models or Specimens 25

Oath of Applicant 26

Filing the Patent Application 26

Patent Maintenance Frees 26

Notice of Rejection 27

Issue of Patent 27

Content and Term of Patents 27

Chapter 8: Some Practical Considerations Before Applying for a Patent 29

Complexity and Expense 29

Choosing a Lawyer 29

Limited Time for Inventors to Profit from Their Inventions 31

Useful Resources Available to Inventors from the USPTO 31

Patent Process 32

Searchable Patent Databases 32

Libraries 33

Patent Application Information Retrieval (PAIR) 47

Payment of Fees 48

Chapter 9: International Protection of U.S. Patents 49

Methods of Applying for a Patent Outside of the United States 50

Patent Cooperation Treaty (PCT) 50

Patent Prosecution Highway (PPH) 52

Chapter 10: Trademarks and Service Marks 53

Common Law Trademark Protection 53

Infringement and Damages 54

Chapter 11: Registration of Trademarks and Service Marks 56

Trademark Fees 56

The Application Process 59

Preparing the Application 59

Submitting the Application 65

Specific Requirements for the Registration Application 69

Who may Register a Trademark 69

The Applicant’s Address 70

Amendment of a Submitted Application 70

The Requirement of Verification 71

Representation of Mark 71

The Requirement of a Specimen 73

Status Inquiries after the Application 73

Office Action Letter 74

Final Refusal and Appeal 75

Publication of the Mark in the Official Gazette 75

Issuance of Certificate 76

Duration and Maintenance of a Trademark Registration 77

International Trademark Protection 77

General Registration Procedure under the Madrid System 78

Procedure for Registration of a Mark under the Madrid System 85

State Trademark Laws 86

Remedies for Trademark Infringement 87

Chapter 12: Trade Secrets 89

Trade Secret Protection 89

Uniform Trade Secrets Act (UTSA) 90

Definition of Trade Secret under the UTSA 90

Remedies under the UTSA 91

Preservation of Secrecy 93

Statute of Limitations 93

Economic Espionage Act of 1996 (EEA) 93

Protecting a Company’s Intellectual Property through Contract Law 94

Nondisclosure Agreements 94

Agreements not to Compete 95

 

Appendix A: Copyright Registration Forms 99

Appendix B: Selected Sections of the Copyright Act 100

of 1978 as Amended 104

(Title 17 of the United States Code) 104

§ 502. Remedies for infringement: Injunctions 123

§ 503. Remedies for infringement: Impounding and disposition of infringing articles 123

§ 504. Remedies for infringement: Damages and profits 124

§ 505. Remedies for infringement: Costs and attorney’s fees 125

§ 506. Criminal offenses 125

§ 507. Limitations on actions 126

§ 509. Seizure and forfeiture 127

Appendix C: Sample Patent 128

Appendix D: Selected Sections from Title 35 and Title 37 of the United States Code  135

United States Code Title 35 – Patents 135

United States Code Title 37 – 144

Code of Federal Regulations Patents, Trademarks, and Copyrights 144

Appendix E: Notes on Becoming a PTDL 167

Appendix F: English Language PCT Application Form 169

Appendix G: Sample Form for Request for Participation in the Japan/U.S. PPH Program   193

Appendix H: Selected Sections of the Copyright Act of 1946 (Lanham Act), as Amended  195

Appendix I: 37 C.F.R. Part 2-Rules of Practice in Trademark Cases (Selected Sections) 205

Appendix J: Sample Form MM3 229

Chapter 1: A Brief Introduction to U.S. Law

Before delving into the various aspects of intellectual property law that are the focus of this book, it would be useful to briefly explore some general background information about the unique nature of law in the United States that must be kept in mind by any lay person trying to obtain information about any substantive or procedural area of law.

The Common Law and Civil Law Traditions

In order to understand our system of law and some of the unique challenges it presents for anyone seeking to acquire functional legal literacy, we should begin by understanding what makes our legal system different and more complex than that of most other nations.  A good place to begin is with a brief introduction into the two major competing systems of law around the world, the civil law and common law systems.

The Civil Law Tradition

The oldest and overwhelmingly prevalent system of law is the civil law system that dates back more than four thousand years. Under the civil law system, law is passed down from the lawgiver (the king, or a legislative body) to the people and is strictly enforced by judges whose job it is to enforce the law. Traditionally under civil law systems, judges act as finders of fact and apply the law as written in deciding cases before them. They have little power to question, reverse, expand or define the law as they decide cases as that function is reserved to the lawgiver (e.g., the ruler or a legislative body appointed by the ruler to oversee that function).

Traditionally, the civil law system required laws to be written down in a public place in clear language so that they could be understood by the common citizenry. The most famous comprehensive codification of law under this legal tradition dates back to the Code of Hammurabi, an ancient Babylonian king who ruled from approximately 1792 B.C. to 1750 B.C. in ancient Babylonia (modern day Iran). The Code of Hammurabi was chiseled on a massive cylindrical stone more than seven feet in height and contained 282 laws covering a variety of subjects.[1] The Code was also available on clay tablets, some fragments of which also survived to this day. The stele containing the Code of Hammurabi or clay tablets containing the Code would have been available in strategic locations for public viewing so that Hammurabi’s subjects could know the law and be held accountable for its breach. The concept of chiseling the law onto stone is also a good metaphor for the permanence and immutable nature of law, which for Hammurabi was divinely inspired and intended to reflect universal, permanent ideals of justice.

The same tradition of writing down the law and making it accessible to the people who were expected to abide by it continued under the Twelve Tables of Roman law where, in 450 B.C., twelve bronze tablets specifying a code of law applicable in the Roman Empire were attached to the orator’s platform on the Roman Forum in an attempt to make the law accessible to all Roman citizens. These bronze tablets would have been found around the orator’s platforms in any Roman city where the citizens of Rome could presumably consult the law throughout the empire. And the tradition was continued  by the Byzantine Emperor Justinian I who in 533 A.D. integrated 1000 years of Roman law into a single code that he called Corpus Juris Civilis–the body of civil law—and is now commonly referred to as the Justinian Code. The most notable attempt in modern times to codify the law into a comprehensive civil code was carried out by a commission appointed by Napoleon Bonaparte in 1800 that resulted in the 1804 Code Civil, more commonly referred to as the Napoleonic Code.

The common thread that binds the civil law tradition from its earliest roots through the modern day is the idea that the law must be written down and made available to the people in language that they can understand. Although much has changed since Hammurabi’s time, and the law has grown increasingly complex in civil law jurisdictions as well as common law jurisdictions, as a general rule, law still changes slowly over time in civil law jurisdictions, is more accessible, predictable and easier to understand in civil law jurisdictions than in common law jurisdictions. And as a rule, making law is still in the hands of legislators, not judges.

The Common Law Tradition

The civil law tradition never took hold in England. Whether because of its status as an island nation or lack of strong unifying kings before being incorporated into the Roman Empire, law in England was regional in nature, changing from location to location in keeping with the local customs, traditions and wishes of the local rulers. After the fall of the Roman Empire, England returned to its common law roots. When William I (William the Conqueror) completed the Norman conquest of England in 1066, he found a country without a centralized system of law and set about to consolidate English law into a unified body of law that could be applied throughout the realm. He established the King’s Court (Curia Regis) as an advisory body to the barons. The court had both legislative and judicial powers that eventually led to the development of Parliament and the English court system. He also created the first circuit court system, where royal judges traveled from district to district on a set route to hear cases in local courts. These circuit judges first began writing down their decisions to serve as guidelines for local magistrates and themselves in future cases. This tradition of writing down decisions to serve as guidelines, or precedent, for deciding future cases formed the basis for our modern common law system. Unlike civil law systems in which judges apply the law to cases before them, judges in common law systems make law as they decide cases, defining, creating and changing the common law in the course of handing down decisions that become precedent for other future cases.

The English common law system was exported to the former British colonies, including The United States. While the rest of the world largely follows the civil law system, The United States and the former colonies of Great Britain generally follow the common law system. Also unlike judges in most civil law jurisdictions who generally have little power or discretion to interpret or nullify laws passed by legislative bodies, judges in the United States have a great deal of power to reinterpret or nullify the laws passed by federal and state legislative bodies based on their interpretation of the U.S. Constitution and the state constitutions.

The Complexity of U.S. Law

There is not a single legal system in the United States or a unified law. Rather, we have fifty states and a handful of other jurisdictions (e.g., the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, etc.) along with a federal system made up of 11 federal districts each with some significant differences in the decisions handed down by their respective courts and the Federal Circuit that handles a variety of specialized issues. And even at the state level, there can be some significant differences in the law even within each state at the county and local levels. Unlike most civil law jurisdictions where a reasonably intelligent person can conduct some simple research and obtain a fairly accurate understanding of the law, our system makes it difficult for non lawyers (and, too often, for lawyers as well) to fully understand the law for two basic reasons. First, judges write their opinions for other judges and lawyers, not for common persons to understand, and legislators are likewise under no obligation to make the laws they write easy for a common citizen to understand or apply. Second, even if a law is clear on its face, there is no guarantee that it will be upheld if challenged in court or interpreted in accordance with its apparent import. In other words, to know what the law is, you need to know what a statute says, how it has been interpreted by the courts at the state and federal levels in the past, and how it is likely to be interpreted in the future.

Use Available Resources Wisely

Protecting intellectual property rights requires planning, time and in many cases a significant expense for filing fees, legal fees and related services. Protecting trade secrets, filing for copyright, patent or trademark protection can be complicated processes. In the chapters that follow, I will help you to understand the applicable law and provide you with the necessary resources to better navigate the process for creating and protecting intellectual property rights. I will attempt to explain the law in as straight forward a manner as possible, and will provide additional useful materials in the various appendices including the most relevant sections of the applicable codes, sample forms and links to additional information and resources that are available from a variety of sources free of charge. It is my hope that this book will become a useful resource that makes difficult concepts accessible and provides you with the information you need to better understand and discuss strategies for protecting your intellectual property rights with your attorney.

Chapter 2: General Introduction to Copyright Law

Introduction

The U.S. Constitution gives Congress the power “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.”[2] Congress exercised this right in passing the Copyright Act of 1790 which was signed into law by President George Washington on May 31, 1790. The Act was brief; it fit on a half page of a newspaper.[3] It provided citizens of the United States copyright protection for the maps, charts, and books they authored for a period of 14 years and allowed copyright protection to be extended for an additional 14-year period. The Copyright Act has been amended numerous times in the intervening years and grown in both complexity and size. The current version of the Act[4] as of this writing is 266 pages not counting 12 appendices.

Although the law has grown in complexity since the first Copyright Act, the core concepts relating to copyright are still relatively simple to understand. In this chapter, we will examine the essential elements of the law and the specific types of intellectual property it is intended to protect.

Subject Matter of Copyright

          The subject matter covered by the law of copyright is rather broad and includes “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”[5] Works of authorship include the following categories: [6]

– literary works;

– musical works, including any accompanying words;

– dramatic works, including any accompanying music;

– pantomimes and choreographic works;

– pictorial, graphic, and sculptural works;

– motion pictures and other audiovisual works;

– sound recordings; and

– architectural works.

Copyright protection attaches to original works of authorship fixed in a permanent medium. Note that an original work of authorship is not protected as soon as it is created; rather protection attaches when it is fixed onto a permanent medium so that it can be reproduced and perceived by others at a later time. It is not the act of creation but rather the act of saving or archiving one’s creation in a tangible medium that grants copyright protection to the creator. For example, if a poet constructs a new poem and speaks it aloud, no copyright attaches to this new creation. Copyright attaches only when the work is fixed in an existing or yet to be invented “tangible medium of expression” that allows it to be reproduced and perceived by others later. Writing the poem on paper with a pen or pencil will suffice, as would recording a reading of the poem on tape or in digital form saved as an audio or video file on a computer, compact disk, DVD or some future medium of storage not yet in existence. Likewise, a new dance that is created by a choreographer is not copyrighted until it is “saved” in some form such as by being videotaped or by the choreographer writing down the steps in the dance on paper or some other permanent form through which the dance steps could later be communicated by others. Thus, a photographer who snaps a photograph automatically obtains a copyright to it when the image is captured on film or saved in digital form to the camera’s internal memory, or in an external SD card or other removable storage. And a writer’s words are copyrighted as soon as they are transferred to paper by a pen or other writing implement, or saved onto a computer’s hard disk or removable storage (e.g., burned onto a CD or DVD or saved onto a USB thumb drive or other removable storage media).

Exclusive Rights in Copyrighted Works

The owner of a copyright has the exclusive right to do (and to authorize others to do) all of the following with regard to the work protected by the copyright:

(1) To reproduce the copyrighted work in copies or phonorecords;

(2) To prepare derivative works based upon the copyrighted work;

(3) To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copy-righted work publicly; and

(6) In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.[7]

The exclusive nature of the enumerated rights means that no one other than the owner of a copyright (and those acting with his or her consent) may copy, distribute, publicly display, publicly perform or create derivative works based on the copyrighted work. Unauthorized use of copyrighted materials can lead to civil and criminal sanctions that will be discussed later in this chapter. It is important to note that civil and criminal copyright infringement can occur even when unauthorized use of copyrighted work is made that does not bring any material benefit to the copyright infringer. Thus, while making unauthorized copies of a copyrighted book, music CD or of a video DVD for sale clearly involve both criminal and civil violations of copyright law, so does copying a rented movie to keep for personal use, copying an audio book borrowed from the library, or burning a CD of one’s favorite music to give to a friend. By purchasing a legal copy of a copyrighted work such as a book, magazine, or legally downloaded MP3 music files, the user generally obtains the right to use those files for personal use only, and not to copy or redistribute them. Thus you may watch a rented or purchased movie at home, and show it to guests in your home for non-commercial purposes (e.g., without charging them a fee). However, you cannot show the movie in a setting that is open to the public (e.g., on a projection system in your back yard where everyone is welcomed to view the movie). Moreover, the same is true for copyrighted work that is non-commercial in nature. The performance of an amateur rock band in someone’s garage cannot be taped without the band’s consent; and if consent is given to tape the performance, copies of the performance cannot be made without the express consent of the band, nor can the taped performance be posted online, broadcast or played at a public venue without the band’s consent. And the same is true for a dance routine, short story, poem, drawing, painting, sculpture or any other subject matter protected by copyright.

Chapter 3: Limitations on the Exclusive

Rights of Copyright Owners

Fair Use Limitations of Exclusive Rights

The exclusive rights of a copyright owner are subject to some notable limitations. Chief among these is the fair use exception which allows limited use of copyrighted works for purposes of “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”[8] In determining whether a specific use of a copyrighted work constitutes fair use, the following criteria are evaluated:

(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 copy-righted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.[9]

In determining whether use of a copyrighted work constitutes allowable fair use, the courts will weigh the exclusive rights of copyright owners against the needs of academics and others to make reasonable use of copyrighted works for purposes of review, criticism, teaching and scholarship. Generally speaking, use of copyrighted materials for non-profit educational or scholarly purposes is more likely to be determined to be a fair use of the material than a similar use of material for commercial use. However, even when non-commercial use is involved, the amount of material used must be reasonable (e.g., a small fraction of the copyrighted work). Thus, quoting a paragraph from a novel in a book review would almost certainly be considered a fair use of the material, but not including an entire chapter of the novel in a book review. Likewise, showing a ten-second clip from a newly released movie without permission in a movie review is most likely a fair use of the material, but showing a ten-minute scene is not. The courts also balance the potential impact of the material used on the value and market for the copyrighted work. Use of copyrighted material is likely to diminish its value or marketability for the copyright owner is less likely to be held to be a fair use of the material than a use that has no significant impact on the marketability of the work. Because fair use is a defense to a copyright infringement action that is weighed on a case-by-case basis by the courts, it is better to err on the side of caution and obtain permission to use copyrighted works even for non-commercial educational use rather than risk the potential of litigation and its uncertain outcome.

Reproduction by Libraries and Archives

A second important limitation on copyright owners’ exclusive rights involves the reproduction of copyrighted works by libraries and archives. Section 108 of the Copyright Act[10] provides that it is not copyright infringement for libraries, archives or their employees in the regular course of their employment to reproduce one copy or phonorecord of a work if the following conditions are met:

(1) The reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

(2) The collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and

(3) The reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.[11]

Libraries and archives may make up to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives provided that the copy or phonorecord reproduced is currently in the collections of the library or archives and that any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.[12]

Libraries and archives are also allowed to make up to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price and as long as any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.[13]

The above exceptions allow libraries and archives to make legal reproductions of copyrighted works for purposes of preserving works or transferring works to a different medium when the medium in which they were originally acquired becomes obsolete and a copy of the work is not available at a reasonable price in a more accessible medium. For example, an audio book originally purchased on eight-track tape and no longer available at a reasonable price for purchase could be copied on to a cassette once eight-track tape and tape players become difficult to find.  Once copied, the copy may be circulated in place of the original eight-track tape. This is not to say that multiple copies of the same work may be made and simultaneously circulated by the library or archive; that would, in fact, constitute copyright infringement.

Although individuals who make impermissible copies of copyrighted materials borrowed from a library are guilty of copyright infringement, libraries and archives will avoid liability for unsupervised infringement by users (e.g., by the use of photocopying machines or downloading and saving copyrighted material) provided that they post a notice by such equipment that the copy may be subject to copyright law.[14]

The rights of reproduction discussed here do not generally apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news.[15]


[1] An English translation of the Code of Hammurabi by L.W. King is available at http://avalon.law.yale.edu/ancient/hamframe.asp.

[2] U.S. Const. Art I §8.

[3] The Columbian Sentinel, July 17 1790 at 1. A digitized version of the newspaper page can be viewed at http://www.earlyamerica.com/earlyamerica/firsts/copyright/centinel.html (last visited August 11, 2009).

[4] The current Act is contained in Title 17 of the U.S. Code and includes amendments through 2006.

[5] 17 U.S.C. §102(a) (2006).

[6] Id.

[7] 17 U.S.C. §106 (2006).

[8] 17 U.S.C. §107 (2006).

[9] Id.

[10] 17 U.S.C. §108 (2006).

[11] 17 U.S.C. §108(a)(1)-(3) (2006).

[12] 17 U.S.C. §108(b)(1)-(2) (2006).

[13] 17 U.S.C. §108(c) (1)-(2) (2006).

[14] 17 U.S.C. §108(f)(1)-(2) (2006).

[15] 17 U.S.C. §108(i) (2006).

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