COPYRIGHT INFRINGEMENT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75-00793R000100340002-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 12, 2016
• Document Release Date: December 28, 2001
• Sequence Number: 2
• Publication Date: June 5, 1973
• Content Type: MFR

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MEMORANDUM FOR THE RECORD
SUBJECT: Copyright Infringement
1. Recently, I Petroleum Branch,
Office of Economic Research, requested the advice of this Office
on the copyright infringement implications of World Oil, which
is their annual survey of the petroleum industry. The question
arises this year because of the desire to attribute the publication
to the Agency. In years past, the document was published un-
attributed.
2. World Oil has been published in two previous
editions; previous to that it was limited to the Middle East
and was entitled the Middle East Oil Statistical Summary.
A large number of copies of each publication have been dis-
tributed both within and outside of the Government. A sub-
stantial number of the copies distributed outside of the
Government were given to various members of the general
public by our Domestic Contact Service.
3. In the United States the statutory criteria for
copyrights are contained in Title 17 of the U. S. Code. It states
that any person entitled to a copyright shall have the exclusive
right to print, reprint, publish, copy and vend the copyrighted
work (17 U. S. C. A. 1). Furthermore, the copyright protects
all the copyrightable component parts of the work copyrighted
(17 U. S. C. A. 3).
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4. Copyright infringement involves copying, in whole
or in part, either verbatim or by paraphrasing. Complete or
substantial identity between the copyrighted work and the in-
fringing work is not required (Addison-Wesley Publishing Co.
v. Brown, 223 F. Supp. 219, 1963). Infringement has been
found when only a small part of a book was copied (Henry Holt
& Co. v. Ligget & Myers Tobacco Co., 23 F. Supp. 302, 1938).
If so much is taken that the value of the original is substantially
diminished or if the labors of the original author are substantially,
and to an injurious extent, appropriated there is infringement
(Toksvig v. Bruce Publishing Co., 181 F. 2d 664, 1950).
5. Fair use has been defined as a privilege to use
the copyrighted material in a reasonable manner without the
consent of the owner (Toksvia). The line between fair use and
infringement is not sharply drawn and is not easily defined.
Whether there is a fair use is a question of fact and depends
on many circumstances; however, copying from another's work
merely to save the labor of independently producing the matter
copied is not within the fair use doctrine (Toksvig). Although
a compiler of material that is within the public domain does not
acquire a monopoly over that material and any other person by
going to the original material may produce a work similar to
that of the first compiler, the second compiler may not use the
labors of the first merely to save his own time (Benny v. Lowe's
Inc., 239 F. 2d 532, 1956). While the case was decided some
years ago, American Trotting Register Ass'n v. Goocher, 70 F.
237 (1895), continues to stand today. In that case, which in many
respects is analogous to the instant case, the copyright owner,
at considerable expense and labor and from original sources,
published factual data and statistics on trotting and pacing horses
in the form of copyrighted yearbooks. The infringer compiled
a list of trotters and pacers having records of 2:30 or better
from the yearbooks. The court found at 70 F. 237 that:
There are numerous cases which hold that any
compilation or any table of statistics which are
the result of the author's industry, and which
are gathered at his expense, can not be bodily
used by an infringer. Although the same facts
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could be gathered by the infringer /from in-
dependent sources/, he must do so at his own
expense, and as a result of his own industry.
It would be wrong to permit him to extract
bodily, from a copyrighted book, tables, facts,
and statistics, and hand them over to the
printer....
In a similar case, Egbert v. Greenberg, 100 F. 447 (1900),
the holding in Goocher was followed. In a much more recent
case Triangle Publications v. New England Newspaper Pub-
lishing Co. , 46 F. Supp. 1.98, (1942), the court found infringe-
ment when an individual copied the symbols, mathematical
notations, and cryptic expressions from copyrighted horse
race result charts and produced similar charts stating the
same information in equivalent words. In an article on fair
use entitled "Fair Use of Copyrighted Books" (2 Houston Law
Review 206, 1964) the author suggests a number of rules con-
cerning fair use, two of which are relevant here. He states
that "(a) one cannot adopt a prior book and expand on it, and
(b) one cannot merely adopt substantial portions of a prior
work and expand upon them, either by addition or modernization. "
6. Intention to infringe is not essential and lack of
knowledge that the infringed material was copyrighted is not a
defense (Chappell & Co. v. Costs, 45 F. Supp. 554, 1942).
Imposition of liability in the absence of an intention to infringe
or knowledge of infringement is not unusual (Shapiro, Bernstein
& Co. v. H. L. Green Co., 316 F. 2d 304, 1963). The fact that
the infringer acknowledges the source from which the appropriated
matter was derived does not excuse the infringement (Toksvig).
In Study No. 10 (dtd. August 1958) entitled "Fair Use of Copyrighted
Works" prepared for the U.S. Copyright Office in contemplation of
a general revision of the copyright laws, the author, citing Holt,
states that "/i/n any event, it is clear that acknowledgement, in
itself, is not sufficient to insure fair use and preclude infringement".
7. One of the methods in which the United States
grants copyright protection to the copyrights of certain other
countries is through its ratification of the Universal Copyright
Convention (U. C. C. ). As a general rule, the U. C. C. requires
a participating country to give the same protection to foreign
works that meet the Convention requirements as it gives to its
own domestic works. The United Kingdom and France are both
members of the U. C. C. In addition, the U. S. has bilateral
copyright protection agreements with each of these countries.
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8. World Oil '71 is a compilation of statistics about
the world petroleum industry. It is compiled through the use
of a number of other publications, some copyrighted and some
not. Here we are concerned only with those copyrighted pub-
lications that are used, which for World Oil '71 were (1) Oil and
Gas Journal, (2) International Petroleum Encyclopedia, and (3)
1971 Oil Statistics. The first two are published by the Petroleum
Publishing Co., Tulsa, Oklahoma, and the latter by the Organi-
zation for Economic Co-operation and Development, Paris, France.
In addition, O. E. R. will again use Skinner's Oil and Petroleum
International Year Book for compiling the forthcoming World Oil.
The most recent edition of Skinner's has been copyrighted (appar-
ently for the first time as the previous edition that was used to
compile World Oil '71 was not copyrighted) by F. T. Business
Publications LTD., London, England.
9. Petroleum production and refining data was
incorporated into World Oil directly from the Oil and Gas
Journal. Various regional and country maps depicting the
location of oil and gas fields, pipelines, refineries, and
tanker terminals have been revised from similar maps in
the International Petroleum Encyclopedia. And, the table
in World Oil '71 entitled "Western Europe: Imports of Crude
Oil, by Country of Origin, 1970" was derived directly from
1971 Oil Statistics. From these facts and based on the judicial
standards discussed above, we are of the opinion that there
are at least two, and possibly three, separate causes of action
for infringement in World Oil '71. In the publications previous
to World Oil '71, the table derived from Oil Statistics was not
included; thus, only one or possibly two causes of action lie
for infringements in these publications. Furthermore, while
a question of fact, it is our opinion that the infringements are
not excused by the fair use doctrine. In addition, it is our
opinion that the future use of the copyrighted version of
Skinner's will constitute another cause of action for infringe-
ment.
10. Infringements of copyrighted material made by
or on behalf of the United States are now governed by statute
(28 U. S. C. 1498(b)). Whenever a copyright protected under
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the laws of the United States is infringed by the United States
or by any person or contractor acting for the Government and
with its authorization or consent, the owner's exclusive remedy
is by suit against the United States in the-Court of Claims. The
Code also provides for the compromise settlement of any claim
which the copyright owner may have against the Government by
reason of infringement. The statute of limitations is three years
from the date of infringement (28 U. S. C. A. 1498(b)). Specifically
excluded, however, are claims for infringement arising in foreign
countries.
11. The legislative history for Section 1498(b) shows
that its purpose is to waive the sovereign immunity of the United
States against suit for copyright infringement. It is intended to
protect Government employees, acting within the scope of their
employment. In those cases where the Section 1498(b) applies,
the remedy provided is exclusive. This means that neither civil
nor criminal process may be issued against the employee.
12. The Code gives the copyright owner various
remedies for the infringement of his work. These remedies,
which are cumulative and not alternative, are (a) injunctive
relief, (b) damages the owner suffers plus profits made by
the infringer or statutory damages, and (c) destruction of the
infringing copies and printing plates (17 U. S. C. A. 101). The
copyright owner will be able to receive injunctive relief only
if the court has reason to believe the copyright infringement
will continue (Shapiro, Bernstein & Co. v. Bleeker, 243 F.
Supp. 999, 1965). Whether the award is to be for actual
damages inflicted or statutory damages is decided by the court
from the nature of the case, particularily in those cases in
which it is difficult or impossible to prove damages or discover
profits. The statutory damages are such damages that to the
court appear just; however, the damages shall not be less than
$250, or more than $5, 000. Moreover, for infringements in-
volving books the Code provides a scale for the court's use which
amounts to $1 for every infringing copy made or sold by or found
in the possession of the infringer or his agents or employees
(17 U. S. C. A. 101). The Agency published 900 copies of World
Oil '71, 700 copies of the first World Oil, and 533 copies of the
last Middle East Summary- -published in August 1970. The
three-year statute of limitations has run for earlier publications
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of the Middle East Summary. Therefore, the Agency remains
liable for -2,13i-
, 133 copies of infringing material. At $1 per infringing
copy, the total statutory damages that the Agency may already be
liable for range between $3, 033 and $5, ],66 (depending on the number
of causes of action) plus attorney's fees.. Based on these facts, it is
our opinion that a court would probably conclude that the damages
were not "de minimus".
13. Notwithstanding the fact that the Agency may
already be liable for past infringements, we are currently
planning to publish a revised edition of World Oil. The fact
that we did not attribute past versions to the Agency has no
bearing on our liability, nor will attribution effect any future
liability. In terms of future publications there are a number
of courses of action that we can take. We can (1) refrain from
future publication, (2) refrain from using the copyrighted
materials as source materials for future publications, (3)
obtain permission from the copyright owners to use their
material, (4) attempt to conceal the infringement from copy-
right owners by (a) controlling the distribution, or (b) coloring
the use of the infringing data to disguise its use or (5) distribute
as in the past. As it is our opinion that alternatives (4) and (5)
will continue to incur liability and, as that liability is not "de
minimus", we do not think these are legally viable or prudent
choices. This conforms to the policy set forth in the Code of
Federal Regulations. There, at 41 CFR 5-54-202 (concerning
Public Contracts and Property Management) it states:
It is general Government policy that copy-
righted matter will not knowingly be incorporated
in publications prepared by or for the Govern-
ment except with the written consent of the copy-
right owner.
We are aware that pursuing, some of the other alternatives, i. e. ,
attempting to obtain permission to use copyrighted material,
raises the risk that we may reveal to the copyright owners our
past infringement; however, it is our opinion that this risk is
less than that of continuing to incur liability as we have in the
past. If we can avoid future liability our current liability will
be completely eliminated by the running of the three-year statute
of limitations in mid-1975.
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14. As alternatives (1), (2) or (3) do not incur
liability, we have no legal objections to any of these three
courses of action. Lastly, O. E. R. should be aware that
the OFFICIAL USE ONLY control is no longer a valid
caveat under Executive Order 11652. Moreover, World Oil
does not appear to meet the criteria set forth in Executive
Order 11652 to be classified. If we distribute the document
as in the past to the general public, we see no legal basis
for denying certain segments of the public access to the
publication while at the same time making it available to
others; therefore, it is our opinion that the publication
cannot fall within the exemption provisions of the Freedom
of Information Act (P. L. 90-23, as amended).
Office of General Counsel
OGC: JE D: cap
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