Sometimes a copy machine can be your worst enemy. It can create significant corporate liability if it is used improperly to make copies of journal articles and other materials that are protected by copyright laws.
As with most things, there is a right way and wrong way to do things. By following a few basic rules, you should be able to ensure that you make copies of copyrighted materials the right way.
Usually the type of copying that can cause problems takes place within a company library or a research collection of materials. The company will subscribe to a single copy of a journal or publication and then make copies of articles for anyone who asks for a copy, or just copy and distribute articles of interest. That can be a dangerous practice that creates copyright infringement liability. The general rule, with rare exceptions, is that your library should not be making copies of articles.
Copying is permitted only if it is considered a "fair use" under the copyright laws. Very few things are so considered in a corporate context. The definition of "fair use" is set out in Section 107 of the copyright law. It identifies the purposes of a "fair use" as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.
In determining whether the use made of a work in any particular case is a fair use, the factors to be considered include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
Most work in a corporate context, including research, is assumed to be commercial and "for profit". Thus, within a corporation, there is very little copying permitted as a "fair use".
In American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2nd Cir. 1994), Texaco argued that its corporate library made photocopies only for the personal use of its scientists in their research. It argued that review of the scientific literature is fundamental to scientific research and that copying articles to further research on new and improved products provides a demonstrable benefit to the general public. The company claimed that such fair use of the scientific and technical literature did not require compensation. The court rejected all those arguments, principally on the grounds that Texaco’s photocopying was of a "commercial nature" and, therefore, specifically excluded within Section 107 as fair use.
By following a few guidelines, you should be able to minimize the risk of infringing a copyright:
1. Don’t systematically reproduce copyrighted materials.
2. Don’t make multiple copies of copyrighted materials for wide distribution.
3. Don’t photocopy an item to avoid buying a second or multiple copies of the original.
4. To the extent you do copy, do not copy the entire article. Copy only the portion that you need for the "fair use" purpose.
5. When in doubt, obtain permission to copy. You will be surprised how often the copyright owner will permit copying and distribution of a specific article.
Based on this general and cursory overview, one thing should be clear – be very careful in making copies of copyrighted works.
Barry Grossman is an attorney with the Milwaukee law firm of Foley & Lardner.
March 1, 2002 Small Business Times, Milwaukee
