Copyright Decision Should Protect Scientific Publishers

A recent federal court copyright decision should help protect the publishers of scientific and technical journals, according to those involved in the case and other observers. The court's decision in American Geophysical Union, et al. v. Texaco Inc., a test case brought by a group of academic publishers, mandates that permission fees be paid for photocopying done by research scientists in profit-making settings--revenues to which the publishers have long felt entitled. The case will result in long-term benefits to scientists, the sources say, in the form of continuing, even expanded, access to publishing outlets for their work because journal publishers will be more secure financially with the additional permission income. At the same time, investigators in private research environments will still be able to get the copies of journal articles they need for their work, although at a cost to their companies, say these sources. In his July 22 opinion, Judge Pierre N. Leval of the United States District Court, Southern District of New York, wrote that researchers working for profit-making companies do not have the same freedom to photocopy research articles as do their counterparts in nonprofit settings, even though their work also contributes to the advancement of science. Such scientists must pay copyright permission fees to the journal publishers, unlike nonprofit researchers. The decision is expected to lead more companies to seek licenses from the Copyright Clearance Center (CCC), in Salem, Mass. The CCC was established in 1977 to provide a nonprofit, central clearinghouse by which copyright permission fees could be efficiently transacted. About 8,000 domestic and foreign publishers have registered approximately 1.5 million publications with the CCC. The additional income from permission fees likely to result from the decision will be important to the community of scientific and technical journal publishers, say observers. The copyright protection extended by the decision will be important to these journals because they often have extremely limited circulations, and the new fees will help shore up their financial bases. "The problem is that we'll have no small technical publishers if this kind of copying continues," says Arthur H. Seidel, a Philadelphia-based patent attorney specializing in intellectual property, explain ing the importance of the decision. "The cost of journals of interest to relatively small numbers of researchers will be prohibitive because there will be a shrinking market. Then, if these people go out of business, where are you going to publish?" Texaco argued that the publishers were not financially hurt by the copying of its scientists--while simultaneously arguing that such copying was fair use for research purposes, anyway. The firm claimed that scientists prefer a photocopy to the original in many cases, for example, so they can make notes in the margins without defacing the original or take the copy into the lab where chemicals may spill on it. On this reasoning, Texaco held that photocopies do not, therefore, represent unbought subscriptions. The oil company's legal team also pointed to the commercial success of academic publishers as proof that the copying did no harm. But Judge Leval found that, while scientists' working copies of articles were not substitutions for subscription copies and served their own uses, Texaco must still pay for them, leading to increased revenues for the publishers. He also found their argument based on the publishers' profitability had "no merit," noting that "the copyright owner is not required to demonstrate that it has been reduced to poverty by the defendant's copying" in order to negate the "fair use" provisions of the copyright law. "The publishers need the income from all sources," says James F. Parver, a lawyer with New York-based firm Proskauer, Rose, Goetz & Mendelsohn and one of the attorneys for the plaintiffs, "in order to be able to create and maintain the journals that provide the vehicles for publishing articles." The suit was brought in 1985 by a group of academic publishers as a test of what constitutes a "fair use" exception under the Copyright Act of 1976. The law states that "fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." Other uses of copyrighted materials, not specifically excepted in the law, are, at least potentially, infringements. For the purposes of this test, the files of chemical engineer Donald Chickering II, an arbitrarily selected researcher at Texaco's Beacon, N.Y., facility, were examined. Copies of eight articles from the Journal of Catalysis, published by Academic Press Inc. in San Diego, one of the plaintiffs, were found in Chickering's files and formed the basis for the case. Texaco Inc., headquartered in White Plains, N.Y., claimed that its researchers should have the same rights to copy journal articles that other researchers do, by virtue of their published contributions and other participation in the scientific community. Texaco relied heavily on the 1973 case of Williams & Wilkins v. National Institutes of Health, in which copying done by NIH scientists was found to constitute fair use. "Texaco participates in the greater intellectual environment of scientific research," says Thomas A. Smart, an attorney with the New York firm of Kaye, Scholer, Fierman, Hays & Handler and a member of the legal team that represented Texaco. "We felt that, simply because it is a for-profit company, it shouldn't be deprived of a benefit under fair use for research." But the judge disagreed, writing in his opinion, "Granted, the copiers are scientists, [and] they are using their copies to assist in socially valuable scientific research.... Nonetheless, their research is being conducted for commercial gain." This point is relevant because the law specifies four factors to be considered when determining fair use, the first factor being "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." "We felt all along that the permission [to copy] was required," says attorney Parver. "But certainly before Judge Leval's decision you couldn't point to a case that flat-out held that you can't make single photocopies for your research scientists to use [in a profit-making environment] without having to obtain permission." Parver adds: "We do not see the decision as having any adverse impact on [commercial] scientists or scientific research, because, as Judge Leval pointed out, there are various ways in which permission can be obtained to continue to photocopy-- particularly by taking out a license through the Copyright Clearance Center." Robert Weiner, director of U.S. sales for the CCC, thinks that the decision will give many corporations the motivation they need to take out copyright licenses. "Just as with people," he says, "there are very few companies who do things simply because it's the right thing to do. Most need some other form of motivation." Weiner adds, "The threat of being sued [by the publishers] is a serious form of motivation." "There's no question that there are a significant number of major research-intensive, for-profit companies out there that have not taken a license," says Parver. "We would hope, in light of Judge Leval's decision saying that you cannot continue to photocopy without permission, that those companies will now obtain permission in advance."

Copyright Decision Should Protect Scientific Publishers

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