On 1/20/00, Laurie Urquiaga <urquiagal[_at_]lawgate.byu.edu> wrote:
>
> Bob, forgive me, I'm still learning. But based on discussions and
> presentations, I've received the definite impression that me making
> a copy of an article relevant to my research interests is an
> 'accepted practice'. There's no chance that I'm going to fork out
> money to subscribe on my own, or even purchase a single issue
> (unless it reported a symposium or conference that was highly
> relevant). So there is no impact on the market for the work.
Not according to the leading case on this issue. Read American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994) (I warn you, though, it's a wordy decision). With respect to the market impact factor, Texaco found that there was a convenient way through the Copyright Clearance Center for institutions to pay for more licenses for more copies; as a result, the loss of license revenue, and to a lesser extent, loss of subscription revenue, formed the basis for concluding that the fourth fair use factor weighed against Texaco, the copier. Id. at 931.
> The use is educational (or at least 'scholarly' in the broad sense),
> the work in question is almost always nonfiction (never been anything
> but nonfiction to this point, but I won't foreclose the possibility),
> and I rarely copy more than a few pages of any particular periodical.
> Based solely on personal observation over a 15 year career as a
> librarian, I'd say this is typical. Is this not the quintessential
> fair use?
The use in Texaco was also for research, but the court found that it was for commercial research, which weighed against Texaco. Also, the court determined that the use, albeit ostensibly for research, was "mechanical" and not transformative.
> I was using the term 'review' in the sense of perusing an item that
> crossed my desk. And from that item I might photocopy a single
> article on a subject that interested me for future reference.
> Almost universally, in terms of professional materials, what I
> would keep would be relevant to a topic I was researching.
Sounds somewhat similar to what the researchers in Texaco were doing. If I understand you properly, you're building an archive of articles that interest you in your research. In that way, later, you don't have to go find the magazine(s), you can just scan your archive. I'm sorry to say that the second circuit didn't find such a system fair use. Of course, you're not in the second circuit (you're in Utah?). Maybe the 10th circuit views such conduct differently. I have never done a circuit-by-circuit analysis. I will say that Texaco is a well-known and much-cited case. Judge Newman outdid himself. Or something.
Also, other factors may still weigh in your favor. For example, if your library is non-profit (which Texaco clearly is not), that would help.
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