ALAWON v4n53 (June 7, 1995)
URL = http://hegel.lib.ncsu.edu/stacks/serials/alawon/alawon-v4n53

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                                                             ISSN 1069-7799
                                  ALAWON
                      ALA Washington Office Newsline
                     An electronic publication of the
              American Library Association Washington Office

                           Volume 4, Number 53
                               June 7, 1995

   In this issue: (146 lines)
     TEXACO ANNOUNCES SETTLEMENT OF FAIR USE COPYRIGHT SUIT
     DEMONSTRATIONS OF GPO ACCESS TO BE HELD IN CHICAGO

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TEXACO ANNOUNCES SETTLEMENT OF FAIR USE COPYRIGHT SUIT

On May 16, 1995, the Texaco Corporation announced a settlement of a
long-standing copyright infringement suit brought in 1985 by six publishers
against Texaco because individual scientists had photocopied articles from
scientific journals to which Texaco subscribed and had not paid royalties
to the publishers for the copying.

The suit was decided by a federal district court in 1992 holding that
companies in the for-profit sector which make copies of copyrighted
scientific and technical journal articles violate fair use under the
Copyright Act of 1976.  Unfortunately for researchers and libraries, the
settlement means that the fair use issues raised by the case will not be
resolved by the U.S. Supreme Court.

ALA filed a friend of the court brief in support of Texaco in its appeal to
the U. S. Court of Appeals for the Second Circuit, as did a separate
coalition of library and information associations.  On October 28, 1994,
the Second Circuit handed down its decision in American Geophysical Union
v. Texaco, 37 F.3d 882 (2d Cir. 1994), affirming the lower court's holding
rejecting Texaco's claim of fair use but setting forth different reasons.

On April 24, 1995, Texaco filed its petition before the U. S. Supreme
Court, and the library and information associations (including ALA) planned
to petition the court to allow them to file a friend of the court brief in
support of Texaco.  Before this could occur, Texaco entered into settlement
discussions with the publishers and agreed to pay "slightly more than $1
million, plus a retroactive licensing fee to the Copyright Clearance
Center. Texaco will also sign a five-year licensing agreement with the
center."  Texaco asked the courts to delay further action pending the
approval of the group of 83 publishers, now a party to the suit.  The court
must approve the settlement.

Without a ruling by the U.S. Supreme Court, users of copyrighted materials
are left with the unfortunate reasoning of the Second Circuit on the first
fair use factor, the purpose and character of the use.  It is probable that
the holding of the Texaco case will become a model for other circuits
facing similar questions.

The broad issue of whether making a single copy of scientific journal
articles for personal use and archiving is considered fair use, was not
before the Second Circuit. Instead, the issue before the court was whether
the copies of the eight articles at issue under the specific facts of this
case was fair use.

In its fair-use analysis the court held that:

  1) The for-profit motive of the company is still a relevant consideration
     in the analysis of the purpose of the use, although the court
     recognized that the focus should be on the use of the material and not
     on the user.  The predominant "archival purpose" (the copied articles
     were placed in the scientist's files for use as needed and thus were
     non-transformative) tipped the scales against fair use.
  2) On the second factor, the nature of the work, the court found for
     Texaco because the articles were primarily scientific.

  3) In determining the third factor, the amount of the work copied, the
     court noted that the entire article was copied rather than focusing on
     an article as a portion of a volume of the journal and, thus, found
     against Texaco on this factor.

  4) Finally, the court found that the publisher had not lost subscriptions
     but they had lost the right to license the work for reproduction.
     Because of the existence of the Copyright Clearance Center (CCC),
     Texaco could have acquired a license; therefore, the market was
     affected.

The dissent noted that the researcher's purpose of science is one of the
enumerated categories listed in the preamble to Section 107 of the
Copyright Act of 1976.  The dissent concluded that the existence of the CCC
is an irrelevant consideration in determining whether a given use is fair
and is an unworkable method of obtaining and paying for authorization to
copy.  The CCC does not represent all publishers nor is it able to
authorize copying for all publications of all publishers.

The court left many issues unresolved, for example:

  1) The court failed to differentiate between a direct commercial use and
     an indirect relation to a commercial activity.

  2) The court failed to indicate whether there would be a difference
     between copying for faculty or researchers performing under grant
     funding from government agencies and grants from commercial companies.

  3) The court failed to recognize whether it considers there is a
     difference between copying done in government research laboratories
     (non-profit) which are encouraged to develop public/private
     partnerships and scientists in the for-profit sector.

  4) The court failed to provide guidance on copying to the general public
     by state supported institutions when that copying might be used to
     enhance profit for an individual or a business.

  5) The court failed to provide guidance regarding copying in health
     sciences libraries or medical schools which serve a combination of
     doctors in the commercial sector and residents in the educational
     sector.

     The case does not apply to the following:

  -  copying done by non-profit libraries
  -  copying done by non-profit users
  -  copying in nonprofit educational institutions for educational purposes

  -  copying done by libraries and archives under section 108
     of the Copyright Act of 1976.

     The ALA Washington Office is grateful to Sarah K. Wiant, Director of
the Law Library and Professor of Law at Washington and Lee University, for
assistance in the preparation of this review of the Texaco case.

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            DEMONSTRATIONS OF GPO ACCESS TO BE HELD IN CHICAGO

For anyone interested in seeing how the Government Printing Office's online
service works, public demonstrations were announced in the _Federal
Register_ on May 30.  The Superintendent of Documents will give overviews
and demonstrations of GPO Access on June 26 at the University of Illinois
at Chicago in the Chicago Illini Union, Chicago Room A, 828 South Walcott,
Chicago, IL.  The sessions will be from 9 a.m. to 10:30 a.m. and 11 a.m. to
1:30 p.m.  This would be a good opportunity for librarians at the ALA
Annual Conference in Chicago to see this demonstration.  While the sessions
are free, reservations are required.  To make reservations or for more
information contact John Berger by phone: 202-512-1525; by fax: 202-512-
1262; or by Internet e-mail at john@eids05.gpo.gov.  Reservations will be
accepted only through June 21.

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ALAWON (ISSN 1069-7799) is an irregular publication of the American Library
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