The Second Circuit Court of Appeals recently issued a decision on a case
about photocopying of journal articles by industrial libraries, initially
described last year (DN, Legal Forum, 7/25/94, p.96).
Case review. A researcher at a large for-profit corporation copied articles from a journal obtained by the corporation's library. Both the journal and individual articles were copyrighted. The researcher's purpose for copying the articles--lab use or archival purposes--was discussed.
The corporation admitted photocopying, but denied infringement, basing its arguments mainly upon the defense of "fair use." In other words, they claimed that it didn't matter that they copied the articles, they thought they hadn't infringed the copyright because such copying is justified or protected under the "fair use" doctrine.
That defense is statutory, requires exploration, and includes four criteria: (1) the purpose and character of the use, including commercial and not-for-profit considerations; (2) the nature of the copyrighted work, i.e., whether it was factual or artistic; (3) the relation of the amount copied to the entire copyrighted work; and (4) the effect on the market or value of the copyrighted work.
The decision. The Court of Appeals, in a split decision (two judges for affirmation, one for reversal), affirmed the earlier trial court decision that the photocopying constituted copyright infringement. The Court delved into each of the fair use defense criteria, analyzed the facts relevant to each, and found that three of the four factors favored the publishers. However, since the Court cast its opinion in narrow or qualifying language, it clearly sought to limit the impact of its holding to the particular facts of the case, to minimize any broad interpretation, and to prevent the case from having a broad impact on current library and corporate custom and practice. The Court used language, such as "particular circumstance" and "broad issues are not before us," which, when coupled with a split decision, leaves its impact open to debate. Will other courts rely on this decision in rendering decisions in similar cases? Should libraries and corporations give deference to this case at this time?
Moreover, the case is not over. The U.S. Supreme Court could possibly review it, or it may be returned to the trial court. Thus, its impact and precedential value is unclear.
The decision gives rise to several principal questions. What precedential value will be given to this case? What will be the impact on industrial or library practices? Is this Court's statement a definitive statement of the law? All answers to these questions remain to be seen, so...stay tuned for the next chapter.
Do you copy? A few suggestions. To the extent alternatives are necessary, companies can avoid copyright problems of the foregoing type. The Court suggests alternatives such as obtaining a direct license from the copyright holder, usually the author or journal; hiring document delivery services (which presumably have a license); or obtaining a photocopying license from the Copyright Clearance Center.
Whether a corporation or library should change or modify its practices in large part depends upon what their current practices are and the risks they perceive they face if they change or continue them.
Even though the legal situation is not crystal clear, the risks can be minimized.
Q What are the ramifications of this photocopy case?
A The Court reiterated the law as it understood the law, but the Court carefully limited its rulings to the facts of that case. The precedential value or ability to expand the impact of the case is not clear, and could change if the case is challenged in another court.
Q What should a library do, in light of this decision?
A To answer that question, a lawyer would first have to understand the library's present practices, which suggests a review of current procedures. However, I believe the ability of a commercial corporate library to rely on "fair use" has been reduced. Therefore, a prudent course seems to be:
Avoid relying on "fair use,"
Q Is this case now settled or finished and the law well-defined?
A No. This case might proceed to the U.S. Supreme Court or return for further proceedings at the trial court. Interpretations by other courts may help define the place of this Court's view of the laws.
Q How much at risk is the individual employee who makes or directs another to make a copy of a copyrighted article?
A The answer in part depends upon the definition of risk. Such a person may be a copier and may be legally liable, but the corporate shield or corporate policy may protect the copier. However, at a minimum, the copier may be exposed to lost time, and other job-related non-legal losses.