The Cutting Edge: COMPUTING / TECHNOLOGY / INNOVATION : INTELLECTUAL PROPERTIES : Have You Got a License to Copy That Magazine Page?
Legal issues and copyright protection are hardly in the forefront of most peoples’ minds when they wander over to the photocopying machine. But that may soon change. The widespread and accepted practice of photocopying material for your own use, generally thought to be protected by the “fair use” clause of the Copyright Act, has been slapped down by a federal appeals court in New York.
If the ruling in American Geophysical Union v. Texaco Inc. stands, an era of carefree photocopying will come to an abrupt end. Individuals and small businesses might not change their habits dramatically--suing them for copyright infringement would hardly be worth the effort--but large companies with deep pockets will be in for a rude and costly shock.
The Oct. 28 opinion out of the 2nd Circuit Court of Appeals, which came with a heated dissent from one of the three judges, has polarized copyright experts. And it has set usually staunch allies--writers, who favor the ruling, and librarians, who oppose it--against one another.
The facts of the case are so common they are bound to send shivers up the spines of corporate managers: A Texaco researcher copied eight articles from an obscure scientific journal and placed them in his own archive for future reference. Texaco had two subscriptions to the academic paper.
Many experts in the field would consider this to be fair use, a term the Copyright Act defines as “for purposes including criticism, comment, news reporting, teaching (with multiple copies for classroom use), scholarship or research.”
The appeals court, upholding a federal district court, ruled that such copying was not protected by fair use because the researcher essentially was creating his own library at the expense of the publisher, who belonged to a photocopy licensing agency called the Copyright Clearance Center. If Texaco wanted its employees to copy articles for their own archives without buying a photocopying license, the oil company should buy a subscription for everyone who needed the journal, the majority decision said.
“It was quite a stunning opinion,” said Louise Nemschoff, a Beverly Hills copyright lawyer. She said the court’s willingness to define new law in relation to a technology that has been available for many years could spell trouble for those trying to sort out issues of copyright protection in cyberspace.
“The courts are still arguing about photocopying, which is ancient technology,” she said. “By the time the courts get around to the Internet, the issues could be 20 or 30 years old.”
Texaco’s lawyers took a more immediate view, vowing to take the concept of fair use to the U.S. Supreme Court if necessary. “According to this opinion, what traditionally was reasonable and customary has stopped being reasonable and customary because publishers have figured out a way to make money,” said Texaco attorney Thomas A. Smart.
