Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/67

Chapter Four. Fair Use (Section 107) courts concluded that it favored the plaintiffs because entire articles were being copied.

On to the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work. Courts are more likely to find an infringement when the copyright owner incurs financial harm due to unauthorized or uncompensated copying. In 1985, the Supreme Court called the fourth factor the most important element of fair use. But since the 1994 Campbell decision, as the appeals court noted, the fourth factor no longer is more important than the others.

In assessing how copying affects the potential market or value of a work, courts will consider markets beyond journal subscriptions and book sales, such as the secondary market for article and book chapter reprints, and royalty or licensing fees. Furthermore, not only will a court examine the market impact of the individual defendant’s copying, but also “whether unrestricted and widespread conduct of the sort engaged in by the defendant … would result in a substantially adverse impact on the potential market for the original.” In other words, what would be the impact if a lot of other people do what this particular defendant did?

Both the district and appellate courts in Texaco noted that the publishers lost sales of additional journal subscriptions, back issues and back volumes, and also licensing revenue and fees. Like the district court, the appeals court also thought it significant that the publishers of the journals from which articles were copied were registered with the Copyright Clearance Center, thereby making it easy to pay royalties. Both the trial court and the appeals court found that the fourth factor favored the publishers.