both 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.[1] But since the 1994 Campbell decision, as the appeals court noted, the fourth factor no longer is more important than the others.[2]
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.[3] 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.”[4] 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.[5] Both the trial court and the appeals court found that the fourth factor favored the publishers.
- ↑ Harper & Row, 471 U.S. at 566.
- ↑ “Prior to Campbell, the Supreme Court had characterized the fourth factor as ‘the single most important element of fair use,’ Harper & Row, 471 U.S. at 566. … However, Campbell’s discussion of the fourth factor conspicuously omits this phrasing. Apparently abandoning the idea that any factor enjoys primacy, Campbell instructs that ‘[a]ll [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright.’” Texaco, 60 F.3d at 926.
- ↑ Id. at 927–29.
- ↑ Campbell, 510 U.S. at 590.
- ↑ “Though the publishers still have not established a conventional market for the direct sale and distribution of individual articles, they have created, primarily through the CCC, a workable market for institutional users to obtain licenses for the right to produce their own copies of individual articles via photocopying. The District Court found that many major
