The American Geophysical Union
The American Geophysical Union
Early History of Copyright Law -From ancient times scholars have enjoyed what has been taken as a right to copy existing works to study them, to ensure their preservation and to disseminate the information they contain. (1) Copying has long been considered a virtuous practice and was included in St. Benedict's Rule as such. (2) The invention of the printing press by Gutenberg was at first considered merely " . . . an advance in the art of copying . . . and was duly opposed by the scribes" before its commercial implications became apparent. (3) It was not, however, for commercial reasons that the first restrictions on copying and distribution of published works appeared. When William Caxton established a printing press at Westminster in 1476 the British Crown immediately granted him exclusive license to print political and theological works. (4) This was not originally done for any commercial reason but as a means to enforce censorship over the new print medium. The British monarchy feared that the press could be used to spread political and theological heresy. The Star Chamber moved to repress the new medium in 1586 with a decree aimed to stop "dyvers contentyous and disorderlye persons professinge the arte or mystere of Pryntinge or sellinge of bookes." (5) It was expanded in 1637 such that:
It is apparent from this kind of language that the first notions of copyright had their roots in censorship. Along with purely political considerations, however, it was also recognized in England relatively early on that unrestricted copying of published works using the new technology of the printing press could pose serious commercial problems as well. In 1557 Queen Mary established the Stationer's Company, the purpose of which was to register printed works to help settle claims surrounding literary ownership and precedence. (7) The liberation of commercial printing operations from Crown control in 1695 precipitated a period of wholesale infringement which Parliament attempted to end in 1710 with the enactment of the Statute of Anne. (8) The Copyright Act of 1710 was established "for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies. . ." (9) The Statute of Anne is the model for all subsequent copyright legislation the world over.
Development of American Copyright Law -In 1783 the United States Constitution ( Art. I, sect. 8, cl. 8) granted to Congress the power "to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Nowhere in the Constitution, however, are any rights of ownership or exclusive use granted to authors or their agents per se. The Constitution simply empowers Congress to enact copyright legislation to protect authors' rights. It neither defines them nor requires Congress to protect them. It is permissive, not mandatory. (10) In 1790 Congress passed the first American copyright act, which was modeled very closely after the Statute of Anne "for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies." In revisions to the basic law in 1802, 1821 and 1909 Congress extended protection to graphic arts and musical compositions. In 1947 the Copyright Act of 1909 was amended to establish the Office of the Registrar of Copyrights under the Librarian of Congress and codified as Title 17 of the United States Code (USC) without major revision. Copyright law in the United States remained relatively stable until the advent of new photocopying, recording and computer technologies, beginning in the 1950s, which presented challenges it could not address. (11)
New Technologies vs. Old Copyright Law -The advent of xerographic technology in the 1950s made it possible for individuals and institutions to make large numbers of copies of published materials easily and quickly. (12) This was both hailed by librarians and educators of the time as a momentous advance in the ability to disseminate information for the public good and condemned by authors and publishers as an unlawful and illegitimate means to circumvent copyright restrictions. (13, 14, 15) The stage was set for a fundamental clash between the right of protection for intellectual property and the public interest and general welfare. (16)
Landmark Litigation - Williams & Wilkins vs. the United States -The tensions between new technologies and old copyright laws came to a head in 1968 when the Williams & Wilkins Company filed suit against the National Institutes of Health (NIH) and the National Library of Medicine (NLM) in the U.S. Court of Claims for wholesale photocopying of articles from several of its published medical journals. (17) The copies were distributed free of charge to library patrons and medical doctors around the country on request. The suit claimed not only that the NIH and NLM were in violation of 17 USC with regard to copyright infringement but that Williams & Wilkins had also been substantially commercially damaged by this practice through loss of sales and subscriptions and deserved compensation. Williams & Wilkins lost the suit on a split decision in 1973 and the decision was upheld by the Supreme Court, again in a split decision, in 1975. The judges of the Court of Claims deferred to considerations of the public interest stating that "There is no doubt in our minds that medical science would be seriously hurt if such library photocopying were stopped." (18) The Court of Claims also rejected Williams & Wilkins' claima that it had been commercially damaged:
It is interesting to note that of the roster of 16 justices who heard the arguments in the case on both courts, 8 agreed and 8 disagreed that copyright infringement had actually taken place. (20) The arguments infavor of the public benefits of "fair use" apparently held considerably more weight than any commercial considerations presented before the courts.(21) The decision invalidated many pending lawsuits and threw the matter back toward Congress, which had been hearing arguments on proposed revisions to the 1909 Copyright Act since the early to mid-1960s. (22) Two subsequent studies of photocopying practices at the University of Pittsburgh and at the British Lending Library indicated that, in fact, library photocopying had no adverse effect on journal subscriptions. (23) On the contrary, library photocopying was found to increase sales of scientific and technical publications slightly through dissemination of the articles copied from them. (24, 25) Nevertheless, the Williams & Wilkins case galvanized public debate on the concept of fair use in copyright law which had been growing since the early 60s. Most publishers and a very few authors, principally those affiliated with scientific and professional societies having their own printing presses, aligned themselves against codification of a legal notion of fair use. Librarians and educators promulgated a variety of definitions of what fair use constituted. All of the professional library and publishing industry associations filed amicus curiae briefs in the Supreme Court case outlining their arguments for and against codification of fair use. (26)
Codification of the Fair Use Doctrine -The development of a workable compromise on fair use, which would place no unfair burden on any special or public interest group, was sought by Congress which held many hearings on the issues involved while Williams & Wilkins was still in adjudication. Ultimately Congress rested its definition of fair use on four factors and formally codified the concept of fair use in 1976 in Section 107 of 17 USC:
Far from settling the matter, the Copyright Revision Act of 1976 further polarized opinion on fair use and caused publishers, authors, librarians, educators and researchers to develop extreme positions on either side of the issue. Two major camps developed; one led by publishing industry associations and the other led largely by librarians and educators and their professional societies and associations. In the view of the publishing industry the law was far too permissive: " . . . a loophole, a rationale for free and virtually unrestricted use of copyrighted materials." (27) In the view of librarians and educators it was far too restrictive: "Congress apparently meant to do away with the library photocopying privilege." (28)
CONTU Guidelines on Fair Use -A fragile compromise was achieved when the CONTU guidelines were promulgated by the National Commission on New Technological Uses of Copyrighted Works and established the "rule of five" for libraries and educational institutions. (29) No institution could make more than five copies of a copyrighted work within a single calendar year for any use. That provision satisfied publishers with regard to photocopying at nonprofit institutions. But the publishers also argued that the new law and the CONTU guidelines absolutely excluded any unrecompensed photocopying for commercial purposes of any kind. (30) Fair use of copyrighted materials in commercial endeavors was far from a settled issue. Corporate libraries maintained that unrestricted photocopying of published materials was fair use protected under the "scholarship" and "research" provisions in Section 107. Publishers maintained that wholesale photocopying constituted infringement since Section 107 appeared to exclude uses of a "commercial nature." (31)
Rise of the Copyright Clearance Center -There seemed to be no common ground between these divergent points of view. Very few, principally academics, recognized that both positions had merit and that both commercial interests and the public good could be served if a nonaligned, impartial organization were established for oversight and arbitration of copyright disputes and governance of fair compensation through some kind of licensure. (32) Years before the passage of the Copyright Revision Act in 1976 an attempt had been made by the Office of Education of the Health, Education and Welfare Department (HEW) to establish The Committee to Investigate Copyright Problems (CICP). (33) The organization's mission was to find a common ground between publishers and authors and the users of copyrighted materials. It was aligned with neither side and was described by the Registrar of Copyrights at the Library of Congress as:
The CICP made an attempt to establish a universal scheme for compensation of publishers and authors for use of copyrighted material similar to the ASCAP or BMI schemes currently in practice. Fees would be nominal, but the thought was that the volume of activity would more than adequately recompense publishers and authors for their works. The CICP issued only one report before the contract from the Office of Education was canceled in response to the filing of the Williams & Wilkins lawsuit against the NLM and the NIH. (35) The failure of this early nonaligned effort to find a reasonable compromise between publishers and users of published materials created a vacuum which both the publishing industry and the proponents of fair use sought to fill. During the time that the Williams & Wilkins case went through the courts and the Congress investigated and debated the issues surrounding fair use, a number of attempts were made to define, design and establish a nonaligned clearing house similar in nature to the defunct CICP. (36, 37) Ultimately, however, it was the publishing industry itself which in 1977 established the Copyright Clearing Center (CCC). It was widely criticized from its inception because of this alignment. (38) The stated goal of the CCC is to seek full compliance with the 1976 Copyright Revision Act. (39, 40) It set about seeking compliance through private intimidation and public litigation but has more recently resorted to exhortations at professional meetings simply to do the right thing. (41, 42) The reaction of the library community to this development is fairly summed up by the remarks of former American Library Association President Patricia Berger: "The CCC will get better when the publishing community wants it to get better and not a minute before. They created the damn thing, now they have to fix it."
Litigation against Corporate Fair Use -From shortly after its inception in 1979 the CCC was in firm control of the interactions between publishers and users of copyrighted materials. The CCC has set the combative tone of much of what has happened since. (43) Since the Copyright Revision Act, coupled with the subsequent agreements in the CONTU guidelines, provided a shield for public, academic and research libraries the CCC focused its compliance efforts on special and corporate libraries. (44) To many this seemed a logical extension of the earlier stance, enunciated by Jon Baumgarten, copyright counsel to the Association of American Publishers (AAP), that "the only issue not negotiable was that special for- profit libraries must pay copying fees." (45) A number of lawsuits were filed against corporate libraries and commercial information brokers by the AAP and the CCC on behalf of the publishing industry. A suit was filed in 1980 by Basic Books, with support from the AAP, against the "copy mill," Gnomon Corporation, an information brokerage which provided materials for management courses to industrial clients. AAP won the case on the grounds that substantial portions of textbooks and general trade books, including whole chapters, and articles from journals were copied for use by entire classes of Gnomon's corporate clients. (46) The court considered such duplication outside the realm of fair use, in general, on the basis of its scope and systematic nature and, specifically, because Gnomon had copied the bulk of the material for commercial clients. In its decision the court forbade Gnomon to make multiple copies of any copyrighted, published work or its parts without the owner's written consent. Gnomon was permitted to furnish multiple copies of copyrighted, published materials to nonprofit educational institutions provided a form demonstrating compliance with the CONTU guidelines was filled out and kept on file. The decision also gave AAP the right to inspect the forms for compliance with the decree. (47, 48) AAP sponsored the CCC heavily after the Gnomon decision in anticipation of revenues from royalties but they did not flow in as quickly as had been expected. (49) In 1982 Harper & Row, publishers of technical and scientific journals, with the assistance of the CCC, sued American Cyanamid Company, E. R. Squibb & Sons and Pfizer Inc. for photocopying articles in their research facilities. All three cases were settled out of court. The agreements required that the companies register with the CCC as corporate users and pay royalty fees to be determined by on-site surveys of photocopying practices within each company conducted by the CCC. Cyanamid and Squibb agreed to restrict copying to central copying facilities or to specific photocopying equipment. It is interesting to note that the Squibb agreement allowed the company to exclude from reporting to CCC as much as 6 percent of copies made as fair use. (50) It is also significant that in its settlement agreement Pfizer won a right to assert that "single copies for research purposes by Pfizer employees constitutes[s] fair use." (51)
Landmark Litigation Revisited - CCC vs. Texaco -Shortly after the victories against Gnomon, Cyanamid, Squibb and Pfizer the CCC filed suit against Texaco in 1983 on behalf of the American Geophysical Union for copyright infringement by its research and development library. Rather than settle out of court, as others had done, Texaco decided to go to trial in order to test the notion that photocopying in its corporate research library was covered by the fair use provisions of the Copyright Revision Act of 1976. (52) 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 company claimed, rather, to support the publication of research papers by funding basic research, by permitting its employees to attend professional meetings to share scientific data, and by encouraging them to publish numerous articles describing their work in scientific and technical journals. Texaco argued that too strict an interpretation of the fair use doctrine as defined in Section 107 of the Copyright Revision Act could seriously inhibit corporate research and development efforts and place it, and other American companies, as well, at a significant worldwide competitive disadvantage. Finally, Texaco argued that making a copy of a single article from an entire journal constituted fair use because the article, itself, did not constitute a substantial portion of the work - the journal. The court rejected all these claims and assertions and sided with the CCC principally on the grounds that Texaco's photocopying was of a "commercial nature" and, therefore, specifically excluded within Section 107 as fair use. Texaco was ordered in 1992 to register as a corporate user with one of the CCC's compliance programs. Texaco appealed the decision to the Second U.S. Circuit Court of Appeals in New York and lost on October 31, 1994 in a 2 - 1 split decision. The court rejected Texaco's argument that the appropriate work on which to focus was the journal as a whole and set a precedent in clearly identifying the individual article as the appropriate work to consider in determining fair use. (53) In determining the effect on the market, the court made it clear that this is the most important of the four elements in determining fair use and that it is necessary to address the effect on the market for articles, not on the market for journals, as a whole. The nature and history of how articles have been marketed is important in determining the effect of photocopying on the market value of individual articles. The market is relatively new and lacks both stability and uniformity but it is growing rapidly, especially in the area of electronic delivery. This makes the determination of the effect on the market for journal articles difficult to gauge but it also renders irrelevant Texaco's claim that it did not seriously damage the market for journal subscriptions by its photocopying. (54) Almost as if parenthetically, in a footnote to the decision, the court made this very ominous parting pronouncement: (55)
A compulsory license with the CCC, of course, since there is now no other qualified, competing agency. It appears that the future of the CCC, a private, commercial licensing agency and a monopolistic arm of the publishing industry, has been virtually assured by adjudication
DISCUSSION
Statement of the Problem -Without further litigation or legislation it is clear, on the basis of the Texaco decision, that corporate libraries and information centers must comply with the provisions set out in Section 106 of the Copyright Revision Act of 1976. The fair use defense has been rejected. The consequences to industry are grave. In the wake of the early capitulation of major corporations to CCC and its recent victory over Texaco, corporate librarians find themselves in a quandary. Settlements range from five to six figures with annual royalty payments in the six figure range not uncommon. (56) It is the general consensus among librarians at major corporations that the fee structures established by the CCC for compliance are punitive, that its survey procedures are flawed and that the staffing burdens placed on them for compliance and reporting are unreasonable and excessive. (57) In a period of significant corporate downsizings and the concomitant budgetary and staffing cutbacks corporate libraries and information centers can afford neither full compliance nor a significant judgment in favor of the CCC. This places their librarians on the horns of a terrible fiscal and ethical dilemma.
The Position of CCC -For its own part, CCC will not consider publishing any guidelines on reasonable fair use in corporate libraries. (58) The CCC's position is that corporate libraries must fully comply with copyright law and that the CCC is there to assist them in doing so. (59, 60) It is not uncommon, however, for a major corporation to receive a letter from CCC demanding a royalty payment in six figures based on an a priori estimate of photocopying of copyrighted materials in their libraries, information centers and general offices. (61)
The Compliance Dilemma -Faced with these equally untenable alternatives many corporate librarians opt simply to do nothing. They may be forced to take such a stance by rigid management attitudes effectively prohibiting honest negotiation with the CCC. In doing so they risk personal and corporate liability if they come to CCC's attention. Too often expediency dictates that so long as the risk of discovery is low there should be little effort at compliance. Many corporate libraries subscribe minimally to one of CCC's compliance plans merely as a token gesture. They do so in hopes of escaping, if only briefly, from discovery and the forced compliance that would follow with all its terrible personal and corporate consequences.
Models for Voluntary Compliance -There are only a few published reports of major corporate efforts toward full compliance with copyright law. AT&T, the National Bureau of Standards (NBS) and the Chemical Abstracts Service (CAS) document delivery service division have all published reports on compliance efforts and programs. (62, 63, 64) An editor's note prefacing the AT&T report in ONLINE puts it this way: "Copyright compliance is an issue handled with kid gloves in many libraries. Librarians often hope that if ignored, the problem will go away. It won't." The common threads that run through all of these reports are that the compliance efforts were expensive, time consuming, costly of personnel and computer resources and fraught with frustrations. One is reminded of the remark often attributed to Samuel Coleridge upon seeing a troupe of performing dogs in London: "The wonder is not that it is done well, but that it is done at all!" On the other side, Schaper remarks in her report on AT&T's compliance program:
Three serious practical problems became apparent during these compliance efforts in addition to the general difficulties mentioned above. First, significant computing resources must be available to automate the compliance effort which would otherwise be unmanageable. The necessity of developing a computer system to manage compliance has been reported. (65, 66) Second, no single means of compliance is sufficient since the CCC does not cover all potential sources. AT&T found that of the journal titles it received the CCC covered only roughly 87 percent so that agreements must be arranged with many individual publishers, as well. (67) Last, and perhaps most significantly, considerable evidence was found that there were "instances of abuse by publishers of charges for photocopies of materials under copyright." which prompted complaints to the Registrar of Copyrights. (68) The bottom line is this: Models of compliance are just that - models. As loudly touted as they may be by their developers and by the CCC as indicators of the path forward, the truth is that for most, if not all, smaller organizations they are simply so expensive as to be unattainable. Large corporations, which may be able to afford them, on the other hand, should take note of these founding efforts at compliance in forging their own. As Louise Schaper and Alicja Kawecki of AT&T put it, "Litigation will not forge the future, agreements will." (69)
Guidelines for Copyright Compliance -Robert Goddard has published a list of nine rules for corporate librarians to follow when making photocopies of copyrighted materials: (70)
Goddard cites the four factors to be considered according to Section 107 of the Copyright Revision Act of 1976 when determining fair use but he adds a fifth - "good faith - [which] is not even mentioned in the Copyright Act, but it may be the most important of all." (71)
Fairness in Corporate Fair Use -In the light of the recent decision in the Texaco case the current status of fair use in corporate research libraries is that there is no such thing. This leaves American businesses with only two equally lamentable alternatives: They may comply fully in accordance with one of the CCC's plans, on the one hand, or they may risk civil and criminal prosecution for infringement and civil damages, on the other, if they choose to ignore the problem, as most now do. The Texaco decision, like the Williams & Wilkins decision before it, has thrown the matter back toward Congress again for further refinement of the fair use doctrine it created in 1976. It is foolish to expect, however, that public cries for fairness and reason will boom from corporate halls anytime soon. The silence, so far, has been deafening. Any corporation which has the temerity to challenge CCC's rigid stance on fair use in corporate libraries, much less actively lobby Congress for relief, invites the mother of all infringement lawsuits, funded, it might be added, by the proceeds from those which preceded it. If, as the CCC claims in its boiler plate literature, its principal interests lie in securing protection for the intellectual property of authors and easing compliance for users (72), it is curious that it has not filed suit against any small corporations. An argument could be made that the cost of litigation requires the CCC to seek only the deepest pockets, which it has cheerfully done, of course. CCC's philosophical and moral arguments might be more compelling without the additional decoration of dollar signs. It is disingenuous of the CCC, in the extreme, to argue that it works on behalf of authors' rights. Most, if not all, authors of scientific and technical articles must relinquish copyright to the journal publishers if they expect publication at all. It is the publishers and their commercial interests which are potentially damaged by photocopying, not authors' rights. Some official recognition of that simple truth would help to bring fairness and reason to the debate. It can also be cogently argued that full compliance on the order of what CCC has required from Cyanamid, Squibb and Texaco could significantly harm the ability of American business to conduct essential research and development efforts which produce important technical innovations, new consumer products and maintain the high global competitive status of American industry. If the public good is at the heart of this dispute at all, then reason dictates that some notion of fairness in fair use ought to apply to corporate research efforts. Not all of the greatest advances in science and technology are made at giants like AT&T which can afford full compliance and all that it entails. American corporations, large and small, on the other hand, must realize that access to information has to bear a reasonable price tag. To expect to make free use of published materials without any consideration of the copyright owners' rights, whether the publisher's or the author's, is neither reasonable nor fair. Corporate America understands that its own interests are served in supporting the publishing industry which brings it the scientific and technical publications that underpin and strengthen its research and development efforts. But corporate America also understands that full compliance, outside monetary considerations, is so burdensome as to be virtually unattainable, especially for smaller organizations with limited R&D budgets and staffing. The solution seems obvious; some sort of reasonable, universal and fair licensing scheme for the compensation of publishers and authors for photocopying their work. The AAP proposed such a scheme, called the "umbrella statute," in 1983 but was vigorously opposed by the Association of Research Libraries (ARL) and others on the basis that the fair use doctrine, at least as it had been applied in nonprofit educational organizations, precluded it. (73) Perhaps it is time to reopen the debate on some sort of umbrella licensure scheme for corporate users which would fairly address both their concerns over the immense cost and management burdens of full compliance and the publishing industry's concerns over lost revenues from unregulated, systematic photocopying.
CONCLUSIONThe Texaco decision provides the answer to the question: Does the fair use doctrine apply to corporate libraries and information services? It is a resounding "No!" But that is certainly not the end of the story. Neither does the decision validate the CCC's sometimes questionable attitudes toward and approaches to gaining full copyright compliance. While it is unlikely that Texaco will file an appeal in the Supreme Court it is probable that the decision will rekindle the debate over the entire issue of fair use and just compensation. The current state of affairs demands it. The publishing industry wants compensation and thinks that this means it needs much tighter control over corporate photocopying. The tighter that control becomes, however, the less likely it is that their journals will receive the broad electronic distribution required for future commercial development. The business community, on the other hand, wants no restrictions on or fees levied against corporate photocopying. But its failure to recognize that information should bear a reasonable price could strangle the publishing industry on which it depends for current information vital to its research and development efforts, which are its future success. Corporate librarians, in the meantime, find themselves caught in the middle of these opposing forces desperately trying to reconcile two mutually exclusive points of view in an increasingly hostile business environment. The profession needs, once again, to play an active role in suggesting equitable and ethical solutions to this problem which address the needs of all concerned and promote the public good. That was, after all, the original intention of copyright law.
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END NOTES
Selected Web Sites for Copyright Issues
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