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Copyright and the University CommunityProfessionals' Fair Use of Journal Articles for Scholarship, Reference and Research |
Note: This article was written in 1993. The case it discusses was appealed to the Second Circuit Court of Appeals which issued a decision on October 28, 1994 affirming the lower court's opinion though for slightly different reasons. Please refer to Professional Fair Use after Texaco for updated information in light of the Second Circuit's opinion.
Professionals must keep abreast of an astonishing amount of literature in order to pursue their research properly, to publish, and to perform their duties successfully. Most professionals work in settings where they must share access to journals and periodicals with other professionals either by placing themselves on distribution lists or by reading journals in the library. Only a few of these articles will be of such nature that the reader might want to recall some of the ideas expressed in them at a later time while performing research, laboratory work, or pursuing other similar activities.
Thus, occasionally the reader will request the librarian to make a copy for future reference. The reasons for this request may include, in addition to the fact that the journals need to continue to circulate or otherwise be available to others; the fact that only pertinent articles appropriately indexed or filed, not whole journals, can be kept in personal files; that many professionals prefer to make marginal notes on the copies; that the articles must sometimes be read later as time permits; and that errors that might otherwise occur in preserving the expressed ideas by note-taking or reliance on memories can be avoided by photocopying.1 Also, on occasion, readers make copies of an article to send to colleagues "FYI" who may also be interested in the ideas expressed in the article.
There is widespread assumption that such copying is a fair use of copyrighted material. In fact, the fair use provision of the copyright law specifically mentions scholarship and research as examples of the purposes for which photocopies may fairly be made without infringing copyright.2 Further, the University's status as a nonprofit, educational, and research institution should weigh in favor of a conclusion that a particular use is fair under the four statutory fair use factors.3 But, it is not a foregone conclusion that copying for such purposes is fair use; there have been several recent developments that cast considerable doubt upon whether copying for professional use will survive as a fair use into the 21st century.
Most notably, as a real market for reprints and permission to copy develops, it will become easier for publishers to show concrete rather than merely speculative harm to the market for their works as a result of such copying. The decision in Kinko's4 is generally credited with having spurred a more responsive process from publishers to requests for permission to copy.5 The Copyright Clearance Center (CCC) has recently concluded pilot studies on blanket licensing arrangements for universities that appear to have as their premise the conclusion that much or all university copying is not fair use and therefor susceptible of permission charges.
Other commentators note generally that institutions of higher education risk erosion of the right of fair use if the focus becomes maximizing profit for publishers rather than the underlying public purpose of copyright of increasing access to and dissemination of ideas and knowledge in order to further progress in science and the arts.6 Some courts have shown a reluctance to let the potential for license fees or royalty income from reprints and permissions to copy turn an otherwise fair use into an infringing one,7 but then what constitutes "an otherwise fair use" is becoming an issue as well.
Drawing the line between for-profit and nonprofit purposes may seem an easy solution and might give comfort to some, but it may not be possible to draw a principled line between the two by examining the commercial or nonprofit nature of research rather than the commercial or nonprofit nature of the copying itself. Given the complex nature of funding for research today, there probably is no bright line between the two.
The Copyright Act on its face is much too vague to give even a clue as to whether copying professional journal articles for research and scholarship purposes is a fair use, but the cases interpreting the statute and applying the four fair use factors indicate that such use probably would be considered fair in the University's nonprofit, educational setting. To review briefly, the four fair use factors to be considered include, but are not limited to, the following:
(1) [T]he 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; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.8
Applying the four statutory factors to the kind of copying described in the first paragraph of this article, we see that the first factor weighs in our favor as we are a nonprofit university; the second factor usually will weigh in our favor because what we copy typically is factual in nature and therefore subject to less protection; but the third factor may weigh against us if each article is considered to be a discrete work; and the fourth factor may weigh against us as the market for reprints and permissions becomes established and publishers are able to show that they are losing licensing and royalty profits as a result of such copying.
But, importantly, the apparent problems with the amount and substantiality of the part copied (the third factor) and the potential harm to the market for the work (the forth factor) are mitigated by the University's being a nonprofit entity. Several courts have held that copying all of a work is not fatal to a fair use defense, especially in the nonprofit context.9 Similarly, several decisions have indicated that, even if the publisher is willing to license the making of copies or there exists a way to assess and collect royalties for permission to copy, that fact alone should not be enough to defeat a fair use defense in the nonprofit setting.10 The Williams court specifically notes that it is error to "measure the detriment to plaintiff by loss of presumed royalty income" because such a measurement assumes the conclusion that the use was unfair to begin with and that the publisher had a right to issue licenses.11
In the recent Texaco case, the district court, decidedly critical of Williams, determined that individual copying by Texaco's scientists did not qualify as fair use (largely because it determined the copying to be for commercial purposes), but nonetheless approved the proposition that the loss of potential royalty income should not in and of itself convert a fair use into an infringing one.12
Thus, in reality, it is the interaction of all four fair use factors that determines what weight is given to each one, and it appears that the University's nonprofit status would be very important to favorable treatment by a court. This fact, however, has the effect of dividing professionals in nonprofit settings from their colleagues in for-profit settings, both academic and industrial. This division is already beginning to happen as a result of the district court's holding in Texaco; Texaco's scientists can no longer copy journal articles without permission, and payment of fees because such copying, according to the court, is being done for commercial purposes. The court's characterization of the copying as commercial clearly affected each factor of the analysis; the same kind of copying that would probably be a fair use if done by a nonprofit institution was found to be not a fair use when done by Texaco.
Even more problematic is the potential for division between activities in a university setting that are sponsored by industry and activities that are not. Could a publisher further argue that the ultimate licensing of any of our technology indicates that even our basic research is in reality done for commercial purposes?
Reliance upon the nonprofit nature of research as a basis for distinguishing fair use from infringing use may not be workable if the goal is to balance interests to further the public purpose behind the law. If, however, the "commercial" inquiry were directed to the copying itself, for example, asking whether it is being done to make money directly from the copying (were the copier to subsequently sell the copies) or whether the copies clearly impact the market for the original work and are in effect substituting for additional subscriptions, rather than to the ultimate use to which the research the copying facilitated would be put, it might be possible to draw a meaningful line.
This approach would also be consistent with the stated intention of Congress in enacting the library reproduction exemption that applies to reproductions made by certain libraries and archives without any purpose of direct or indirect commercial advantage.13 The House Report discussing the exemption specifically indicates that commercial advantage refers to "the immediate commercial motivation behind the reproduction and distribution itself, rather than to the ultimate profit-making motivation behind the enterprise in which the library is located."14 Curiously, the court in Texaco did not recognize this distinction and concluded flatly, in contradiction, that Texaco's library would not qualify for the Section 108 exemption because, inter alia, Texaco's research was done for profit.15
In practical terms, as currently interpreted, the law does not provide a real comfort zone or a "safe harbor" because it is so difficult to confidently predict whether a court would find the use discussed here infringing or fair. Such fundamental ambiguities do not encourage either compliance with the law's protections of authors' rights or tolerance for the protections of the rights of users. Nevertheless, since University professionals must make decisions about the extent of fair use every day, and with these caveats, the question and answer section at the end of this article is offered as guidance.
Thus far only photocopying has been addressed. The advances in electronic duplication and information communication technology that will be commonplace in the next ten to fifteen years will make the photocopying machine seem crude. But, even though everyone generally welcomes such advances, electronic access to and communication of information may actually be slowed down by publishers' concerns about whether they will be adequately motivated to publish if they are deprived of royalties from non-commercial duplication. Reference to the policies underlying the copyright law indicate that this kind of copying should not be considered an infringement.16
Such copying serves the essentially public purpose underlying copyright because it facilitates the dissemination and free flow of ideas and, while it may reduce publishers' and authors' profits somewhat, it does not diminish the incentives to create. After all, most of the material is in fact authored by the same community of persons who want to use it. Publishers already appear to be including a fee for duplication, whether entitled to it or not, in the inflated prices they charge for corporate and library subscriptions as compared to individual subscriptions. In any event, the copyright law should and does provide for compensation to authors and publishers for the creation of works, but it should not compensate them for the subsequent non-commercial use of information, when such non-commercial use is reasonable and necessary in order to understand, utilize, and build upon the ideas contained in the works.17
Technological advances in the communication of information inevitably will unleash access to and use of information in ways never contemplated by the copyright law and in ways that the law may well be inadequate to handle. The legal tensions created by these technological advances will probably get worse before anything is done to improve the situation. For now, decisions about how to utilize professional journals and other periodicals can only be made on the basis of a best estimate of the likelihood that such use will be considered a fair use. For the future though, it does not seem unreasonable to expect, given the pace of change in the field of communication technology, that the law should rationally address these issues and clearly exempt from liability for infringement non-commercial photocopying, electronic duplication and communication for the purposes discussed. It is incumbent upon the university community to take a leadership role in defining the shape of any new law in order to assure that academic and educational concerns are fairly addressed and that the balance is not tipped away from public access.
Finally, the same technology that will make it easier for readers to access the ideas of others may also make it easier for publishers to charge readers for that access. It is important to remember that regardless of how easy publishers may make it for readers to obtain permission and pay royalties or license fees, it still remains the policy of the copyright law to facilitate the creation of works and the dissemination of ideas by providing a right to authors that is limited by the concept of fair use. This particular aspect of fair use should not be completely abrogated by the mere technical ability of publishers to easily charge readers for the right to do what they already have the right to do without charge.
1. My department subscribes to several journals that are routed to me weekly. I read them all and usually find at least one or two articles that I know I will need to refer to later. I ask my secretary to make a copy of the ones I wish to keep and I label and file them in my personal files. Is this fair use?
In our nonprofit educational and research environment, this is probably fair use. It is analogous to the copying teachers are permitted to do under the Guidelines, that is, to make or have made for themselves a copy of a chapter from a book, an article from a periodical or other short excerpt from a work.18
2. Our department has two sections and we routinely make a copy of each journal to which we subscribe so that the journal can be distributed to the sections' members simultaneously. We usually destroy the copy after it is returned to the library. Do we need permission to do this or is it a fair use?
Arguments can be made on both sides of this issue: Is copying each journal in effect a substitution for a second subscription? If so, it is probably not a fair use because copying the whole issue every week or month impacts the market for the original in the amount of the cost of a second subscription. On the other hand, if you had to make a choice between paying for another subscription and circulating the single original to all your department's members, would you choose the latter alternative? If so, no revenues are really being lost by the publisher. In either event, the destruction of the copy would support the assertion that it is made for the temporary convenience of your department's members only and not to ultimately increase your number of journal copies. This is similar to the "timeshifting" of television programs that the Supreme Court approved as fair use in the Sony case.19
3. I am the head of a department and when I come across an article in a newspaper or journal that I think will be of interest to certain members of my staff, I make copies and distribute them for the members' information. The number of copies ranges between two and six or seven, but on occasion has been as high as twenty when I thought everyone would be interested. This does not happen very often, only about once or twice a month. Is this fair use?
Infrequent distribution of "FYI" copies to a limited number of colleagues is probably fair use based upon several theories. If your colleagues were to have read the article themselves, they may well have made a copy anyway or asked your librarian for copies individually. "FYI" copying is also analogous to the copying that teachers are permitted to do for classroom instruction.20 Judicious use of this privilege is important though. You might ask your intended recipients if they have seen the article before making them copies; it could be that some of them read the same newspapers and journals that you do and have already read the article.
4. There are certain journals that we will not circulate because they are so frequently used as references by all our staff that we do not feel we can risk loss of or damage to the original, so we automatically make a copy of them when they come in and circulate the copy rather than the original. We toss the copy after it has been returned to the library at the end of the circulation. Do we need permission to do this?
In principle, there is very little difference between this activity and the activity described above in Question 2. Both are difficult to analyze because it is unclear how a court would judge the activity. One could argue that you really should buy two subscriptions, one to circulate and one for library use only, since your copying appears in many respects to substitute for a second subscription, thereby directly impacting the publisher's market for the original. In effect, you are making a "backup" copy, which the law does not permit except with respect to computer programs.21 Libraries are not permitted under Section 108 22 to make copies of entire published journals except to replace lost, stolen, damaged or deteriorating works or upon request by a patron, but in either case, only if a replacement is unavailable at a fair price. This does not appear to protect the copying you describe.
But as above, if buying a second subscription is really not a financially tenable alternative for you, then your copying does not really hurt that market. Again, throwing the copy away after circulation supports the "timeshifting" argument that you are copying to increase access to the works by temporarily making access more convenient. In a nonprofit setting, such copying should be fair use.23
Nevertheless, since strong arguments can be made against such use, you might try other ways of addressing your concerns. For example, you might circulate a copy of the table of contents of the journal, letting your library respond to individual requests for copies of particular articles. This is probably a permitted use under the library exemption in Section 108, so long as your library qualifies for protection under the exemption.24
1 The court's decision in American Geophysical Union v. Texaco, Inc., 802 F. Supp.1 (S.D.N.Y. 1992), provides a fuller description of the reasons why professionals make copies of journal articles.
2 See University Copy Centers for a complete statement of the provisions of Section 107.
3 See University Copy Centers for a detailed discussion of the application of the four statutory fair use factors in the context of copying for classroom instruction. Much of the discussion in this article would apply equally to the issues presented by classroom instructional copying discussed therein.
4 Basic Books, Inc. v. Kinko's Graphics Corporation, 758 F. Supp. 1522 (S.D.N.Y. 1991).
5 Jane C. Ginsburg, "Reproduction of Protected Works for University Research or Teaching," 39 J. Copyright Soc'y 181, 210-211 (1992).
6 Gail Paulus Sorenson, "Impact of the Copyright Law on College Teaching," 12 Journal of College and University Law 509; Francis Dummer Fisher, "The Electronic Lumberyard and Builders' Rights," Change, May/June 1989.
7 Williams & Wilkins v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff'd by an equally divided Court, 420 U.S. 376 (1975); Texaco, 803 F. Supp. 1 (S.D.N.Y. 1992).
8 17 U.S.C. Section 107.
9 Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (timeshifting television broadcasts for personal use is not an infringement), Williams & Wilkins, 487 F.2d 1345.
10 Williams & Wilkins, 487 F.2d at 1359; Texaco, 802 F. Supp. at 21.
11 Williams & Wilkins, 487 F.2d at 1357, note 19.
12 Texaco, 802 F. Supp. at 21.
13 17 U.S.C. Section 108.
14 H.R. Rep. No. 1476, 94th Cong., 2d Sess. 75 (1976).
15 Texaco, 802 F. Supp. at 27-28. Note that the discussion of Section 108 issues in Texaco is probably dicta in that the court was limited by stipulation of the parties to a consideration of fair use under Section 107. Nonetheless, the court's discussion seems entirely incorrect. Further, if Texaco's scientists cannot make a fair use request to copy any articles under Section 107, the rights of Texaco's library to honor its patron's requests under Section 108 are eviscerated, and Congress' intention to permit such for-profit company associated libraries to honor their patrons' requests is thwarted.
16 Notes, Toward a Unified Theory of Copyright Infringement for an Advanced Technological Era, 96 Harv. L. Rev. 450 (1982).
17 Atari Games Corp. v. Nintendo of America Inc., 975 F.2d 832 (Fed.Cir. 1992).
18 See University Copy Centers for discussion of the Guidelines, which are reprinted in full at the end of the System Policy Statement on Copying Copyrighted Materials.
19 Sony, 464 U.S. 417.
20 See University Copy Centers for discussion of the Guidelines.
21 See Permissible Copying of Software and Video, Audio and Radio for discussion of backup copying and the distinction between backups for computer programs and backups of video and audiotapes.
22 17 U.S.C. Section 108
23 Sony, 464 U.S. 417.
24 17 U.S.C. Section 108. To qualify, a library must, among other things, be open to the public or if not open to the public, open to specialized researchers not affiliated with the library or the institution with which it is associated; have no purpose of direct or indirect commercial advantage from the copying itself (as distinguished from the research which the institution performs); respond only to unrelated single requests for copies which must be made for a valid purpose such as research or scholarship; and include on the copies whatever copyright notice is contained in the work.
Other articles in the Copyright Monograph:
University Copy Centers: Do They Pass the Fair Use Test?
Permissible Copying of Software
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