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Legal Services

by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the September 1999 issue of the Journal

Question: I sometimes make copies of dental journal articles to give to colleagues. I have been told that I may be breaking the copyright laws. Some of the articles have copyright notices and some do not. Can you explain this area of the law?

Answer: My partner, Robert Pineau, has expertise in this area of the law. He has provided the following answer.

The United States Copyright Act (the "Act") grants to copyright owners certain exclusive rights. These rights include the right to make and distribute copies of the copyrighted work. These rights extend to the manner in which an idea is expressed, but not to the idea itself. Thus, while it is possible to copyright a book about playing the piano, it is not possible to copyright the idea of playing the piano.

A copyright owner is the author who creates the work. pursuant to the "work made for hire" doctrine (where an employee-author creates a work as part of his or her employment) the employer, not the employee, will be the copyright owner. The work made for hire doctrine is not applicable to independent contractors. Copyright ownership is a property right which can be assigned or licensed.

The copyright act provides that any "copyrightable" work becomes copyrighted immediately upon being fixed in a tangible medium. The manner of fixing can be by writing, photograph, video, sound recording or electronically. The familiar copyright notice (for example, "copyright 1999, Michigan Dental Association") is not required to create and protect the copyright. The notice does, however, provide important procedural rights if infringement litigation ensues.

To be copyrightable, the work must be an original work. The degree of originality required is very slight. Still, such things as forms, common phrases and the like, are typically not copyrightable because of a lack of originality. Articles such as dental journal articles will likely satisfy the originality requirement for a copyright.

There are exceptions to the exclusive rights of a copyright owner. One of the important exceptions is known as the "fair use defense." Section 107 of the copyright act allows persons other than the copyright owner to make fair use of copyrighted works. To be a fair use the copying must be for certain statutorily defined purposes. These categories of permitted purposes have been strictly construed. For instance, a use may be considered fair use if the purpose is for criticism, comment, news reporting, teaching, scholarship or research. Even if the use fits within one of the permitted categories, the copyright act requires a balancing of four additional factors:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market value of the copyrighted work.

Each case involving the fair use defense must be evaluated in light of its particular facts. Typically, where the purpose and character of the copying is of a direct commercial nature, such as the sale of copied articles, it is unlikely to be considered a fair use. Indirect commercial use, such as copying research articles for internal use to make a better product, will more likely satisfy the four fair use factors. Where the nature of the copyrighted work is more factual/technical than literary/entertainment, for example, the use is more likely to be a fair use. Copying selected portions of the copyrighted work, rather than the entire article, would tend to favor a finding of fair use.

In a case involving the University of Michigan, Princeton University Press vs. Michigan Document Services, a divided Sixth Circuit Court of Appeals held that a commercial photocopy shop violated the copyright laws by collecting scholarly articles into a "coursepack," which was copied and sold to students. Key factors in the court's decision were that the coursepacks were sold for profit and large portions of each individual article were copied. Despite being copied for a permitted purpose (teaching) the copying of the coursepacks failed to meet the other factors.

In a case which relates more closely to your question, American Geophysical Union vs. Texaco, Inc., the Second Circuit Court of Appeals held that the fair use criteria were not met by a scientist who photocopied articles from a scientific journal and then placed them in his personal research files. Texaco subscribed to three copies of the scientific journal and circulated those copies among its numerous scientific researchers. The scientist, who did not have his own subscription, copied selected articles for future reference. After balancing the four fair use factors, the court held that the copying was not permitted as a fair use of the original articles.

Based on these and other cases, it appears that copying dental journal articles for distribution to others would not likely be held to be a fair use of the copyrighted article. The exclusive rights of the copyright owner, however, would not prevent passing along the original article or dental journal to your colleagues. The permission of the copyright owner is only necessary to make additional photocopies of the article for distribution.

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