3 Copyright and Libraries: Resource Sharing
Cindy Kristof and Collette Mak
Constitutional and Statutory Law
Statutory Law: text of section 108
Constitutional and Statutory Law
U.S. Const., Art. I, § 8, cl. 8. The Congress shall have 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.
Section 108 Limitations on exclusive rights: Reproduction by libraries and archives, 17 U.S.C. §108 [The text of section 108 is found at the end of this chapter after the Scenarios section.]
Case Law
The Williams & Wilkins Co. v. U.S., 487 F. 2d 1345 (Court of Claims, 1973). [Affirmed by an equally divided Court, The Williams & Wilkins Co. v. U.S., 420 U.S. 376 (1975).]
Opinion
DAVIS, Judge:
We confront a ground-breaking copyright infringement action under 28 U.S.C. § 1498(b), the statute consenting to infringement suits against the United States. Plaintiff Williams & Wilkins Company, a medical publisher, charges that the Department of Health, Education, and Welfare, through the National Institutes of Health (NIH) and the National Library of Medicine (NLM), has infringed plaintiff’s copyrights in certain of its medical journals by making unauthorized photocopies of articles from those periodicals. Modern photocopying in its relation to copyright spins off troublesome problems, which have been much discussed. Those issues have never before been mooted or determined by a court. In this case, an extensive trial was held before former Trial Judge James F. Davis who decided that the Government was liable for infringement. On review, helped by the briefs and agreements of the parties and the amici curiae, we take the other position and hold the United States free of liability in the particular situation presented by this record.
Plaintiff, though a relatively small company, is a major publisher of medical journals and books. It publishes 37 journals, dealing with various medical specialties. The four journals in suit are Medicine, Journal of Immunology, Gastroenterology, and Pharmacological Reviews. Medicine is published by plaintiff for profit and for its own benefit. The other three journals are published in conjunction with specialty medical societies which, by contract, share the journals’ profits with plaintiff. The articles published in the journals stem from manuscripts submitted to plaintiff (or one of the medical societies) by physicians or other scientists engaged in medical research. The journals are widely disseminated throughout the United States (and the world) in libraries, schools, physicians’ offices, and the like. Annual subscription prices range from about $12 to $44; and, due to the esoteric nature of the journals’ subject matter, the number of annual subscriptions is relatively small, ranging from about 3,100 (Pharmacological Reviews) to about 7,000 (Gastroenterology). Most of the revenue derived from the journals comes f