Most of copyright law rests not on rules drafted by lawmakers but by interpretations made by judges. An important case is American Geophysical Union v. Texaco.
American Geophysical Union is a non-profit society for geophysicists and publishes several journals. The oil company Texaco's research center in Beacon NY had a library with three subscriptions to the Journal of Catalysis. Dr. Donald H. Chickering had photocopies made of eight papers from various issues of the Journal of Catalysis and kept the photocopies in his files.
Judge Jon O. Newman ruled that Chickering's copies were not made through fair use. Texaco infringed.
The judge didn't address if it is legal for independent researchers to photocopy. He was only talking about Texaco's researchers.
Many people feel the judge made a good call. Texaco is a rich multi-national; they need to pay the geophysicists for their journals.
Copyright law makes no distinction between rich companies and poor companies, so it's probably an infringement if a tiny company also photocopies for employee use. Many people feel OK with that too. It would be nice if a judge would rule on use by independent researchers. A legal bright line between for-profit independent researchers and gigantic public corporations would also help small organizations from knowing if they are breaking the law.
The law also makes no distinction between journals that are in-print and have sales departments and journals that went defunct many years ago. This is what I have a problem with.
I don't know a lot about catalysis but presumably the experiments in those papers can be re-recreated if necessary from the abstracts. Much numismatic evidence is unique — die pairings, overstrikes — and is needed by today's researchers. If we cannot photocopy papers then research stops. If a copyright owner isn't willing to register with the Copyright Clearance Center or even maintain a PO Box why should I respect his rights?
Some copyright holders purposely refuse to sell. For example Disney puts children's movies into the Disney Vault in the hopes of driving up sales. I'm not talking about that. I'm talking about copyright holders abandoning their work and leaving it as an 'orphan', with no licensing body to take care of it.
I believe the historial sciences would benefit from orphan works legislation providing some kind of legal mechanism to allow scholars to pay for out-of-print works.
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