Sunday, December 11, 2005

"Fair Use" and photocopying journal articles

There has been a lot of discussion of US copyright law and "Fair Use" on Moneta-L this weekend.

It seems to be a popular belief that Xeroxing complete articles from magazines and journals is a "Fair Use". This isn't so; each article is a complete work.

The Fair Use doctrine isn't a clear law with numbers and percentages that you can stay under and be safe. A good article on Fair Use is "The Fair Use Doctrine Part II" by Lloyd L. Rich.

Rich gives several examples:

  • Publishing 300 words (1%) from Gerald Ford's memoir was NOT fair use.
  • Putting unpublished Scientology materials (religious) online WAS fair use.
  • Copying entire scientific articles from journals was NOT fair use.

The case that seems most related to my arguments on Moneta-L is AMERICAN GEOPHYSICAL UNION v. TEXACO.

I'll summarize.

  • Texaco's library maintains three subscriptions to "The Journal of Catalysis"
  • Monthly issues of "Catalysis" run ~200 pages and have 20-25 articles
  • Dr. Donald H. Chickering photocopied eight articles from the journal.
  • Chickering believed data from these articles would facilitate his research.
  • Chickering's copying was NOT FAIR USE.

In this case it was worthwhile for the journal publisher to sue because Texaco had 400 other scientists doing the same thing and there was an agreement that the finding for Chickering would apply to all of them.

Copyright Law is not criminal law. It isn't a sub-section of the "theft" law. It is a complex set of rules and judicial precident designed to determine who should win a lawsuit and the damages to award. Copyright law was never designed to make sense for an individual Xeroxing a few articles as background for another article.

Most writers want their works read and cited. There is nothing unethical about copying these works for research. We can be pretty sure that publishing in technical journals that pay in free-copies-of-the-journal is a good sign the author will not feel cheated if his work is photocopied. Letting a work fall out-of-print is another way authors show us that they are not interested in squeezing every last cent out of a work.

No comments: