Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/72

56 possible later use (archiving) such that the effect is to multiply the number of subscriptions without actually subscribing to the needed number of copies; and (5) if there is an easy way to pay royalties, such as through the CCC—then the copying is not a fair use. If you do not have this same factual situation, you should examine your facts under the fair use test. Texaco did not eliminate fair use in the commercial sector. Now let’s see how Texaco might play out in the non-profit educational sector.

In its decision in Texaco, the court of appeals wrote:

Does a professor act independently of her university when she writes a book or an article? Our answer is yes. Unless the professor was hired by the university to create a particular work under circumstances that would make it a “work made for hire,” or unless the university otherwise owns or shares copyright with the professor in the work (which, under university policies, is more likely when a professor or researcher uses significant university funding and other resources), we think that a professor does act independently of the university when she writes a book or an article. And as the court in Texaco wrote, its opinion did not address that issue.