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.[1] 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:
Whatever the situation may have been previously, before the development of a market for institutional users to obtain licenses to photocopy articles [citing Williams & Wilkins] … it is now appropriate to consider the loss of licensing revenues in evaluating “the effect of the use upon the potential market for or value of” journal articles. It is especially appropriate to do so with respect to copying of articles from Catalysis, a publication as to which a photocopying license is now available. We do not decide how the fair use balance would be resolved if a photocopying license for Catalysis articles were not currently available.[2]
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.[3] 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.[4]
