Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/103

Chapter Five. The Library Exemption (Section 108) How William & Wilkins would be decided today is anyone’s guess. At the time Williams & Wilkins was decided in 1975, section 108 had not yet been enacted and libraries could rely only on the fair use defense to avoid liability for unauthorized copying. To some extent, section 108 reflects preexisting case law on fair use, including William & Wilkins, but it was intended to go beyond fair use in some respects. On the other hand, you should also consider what the appellate court in Texaco wrote about the advent of licensing since the Williams & Wilkins decision:

The dissenting judge in Texaco had a different opinion. Referring (as did the majority) to Williams & Wilkins, he wrote that he disagreed with the majority that “a reasonable and customary use becomes unfair when the copyright holder develops a way to exact an additional price for the same product,” and that what Dr. Chickering (the Texaco scientist) did was a customary fact of copyright life that should be considered a fair use. We happen to agree with Judge Jacobs. That a publisher or the CCC makes it easy for you to pay royalties does not abrogate fair use, section 108, or other user rights.

Nearly forty years after it was decided, what remains instructive about Williams & Wilkins are the NIH’s and NLM’s policies and practices. NIH made only single copies of articles, and generally would copy only forty or fifty pages, although longer articles would be copied with permission of a high level supervisor. As a general rule they copied only a single article from a journal issue. Exceptions were routinely made, but NIH would not copy more than half of an issue.