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Copyright Fair Use and Information Diclosure Statements

Copying scientific articles for the purpose of submitting them to the USPTO as background prior art would be a non-commercial fair use, and not copyright infringement, according to a recent decision of the District Court for the Northern District of Texas, in Am. Inst. of Physics v. Winstead P.C. This seems to hold even for “excess” copying. This may assist in helping to understand a bit more about “Fair Use,” but does not create a definitive bright line between permitted fair use copying and infringing copying, outside of some submissions to government agencies. Here the court said that copying of articles for the purpose of categorizing prior art does not have any significant impact on the market for the A.I.P.’s original scientific articles, and also said that submitting the articles to the Patent and Trademark Office was “transformative” and had a public benefit.

Troubling, however, was the court’s holding that scientific articles are not entitled to the same high level of copyright protection as works like poems, novels, or songs. Quite possibly, then, copying a work of fiction (science fiction or humor, for example) to include in an Information Disclosure Statement as background prior art may turn out not to be fair use, but may be copyright infringement instead.