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Ask the Expert: Copyright infringement or legal fair use?

Q: My company subscribes to various technical journals. We often copy pertinent articles and distribute copies to our employees for their reference. Could we be exposing ourselves to copyright infringement liability?

A. Possibly. The issue is one that implicates the "fair use" doctrine of copyright law.

A copyright is the federal grant of exclusive legal rights for original works of authorship, such as books, articles, songs and computer programs. A copyright owner has certain exclusive rights, including the rights to copy and distribute the work. A violation of any of these rights constitutes copyright infringement.
Penalties for copyright infringement can be severe, with statutory damages of up to $150,000 per infringement for willful infringement.

Under the fair use doctrine, however, there are certain circumstances when limited copies of copyrighted works can legally be made. There is no black and white rule whether an act of copying is a "fair use," but courts will analyze a few critical factors such as: 1) whether the copying is for a commercial use or some other purpose, such as educational; 2) the amount of the work copied; 3) whether the work is factual in nature; and 4) whether the copying will affect the market for the copyrighted work.
For example, it typically is fair use when teachers copy factual articles or portions of novels and distribute those copies to their students for classroom use. On the other hand, courts have found it to be copyright infringement for a commercial copy center to copy and compile collections of articles or portions of novels and sell as a classroom text. In a case that perhaps is similar to your situation, a federal court found it was not fair use when Texaco routinely made copies of articles from journals in its technical library and distributed them to its research and development personnel.
Whether your company's practice is fair use likely depends on the number of copies typically made, how much of the original article/journal is copied, and whether your company commercially benefits from use of the copies. If your company benefits commercially from the multiple copies, and the practice essentially allows your company to avoid purchasing multiple subscriptions of the journal, it likely is not fair use.
If it is a close call upon assessment by copyright counsel, it would be wise to purchase multiple subscriptions rather than risk liability for copyright infringement.

Jeremy Walker can be reached at
Know the Law is a bi-weekly column sponsored by The McLane Law Firm.

We invite your questions of business law. Questions and ideas for future columns should be addressed to: Know the Law, The McLane Law Firm, P.O. Box 888, Manchester, NH 03101 or emailed to Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.

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