Is there any case law on whether unreleased "derivative work" falls under the research exemption to Copyright law?

Question

17 USC 106(2)

to prepare derivative works based upon the copyrighted work;

reserves the right to prepare "derivative works" to the authors of the original work. The original authors, of course, can authorize such work use of their work to other parties.

17 USC 106, however, is "subject to sections 107 through 122." Section 107 (fair use) allows for an exception to copyright restrictions for the purposes of "research."

In a series of comments to a different question, we have stumbled on a question of whether derivative work, which is performed privately and not shown to anyone, constitutes a violation of copyright. It all seems moot, but I have thought of a scenario where it may become apropos.

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purely hypothetical scenario here

Suppose someone dabbles in a study of a foreign language X. Suppose they come across an esoteric industry publication in that language. They invest some personal time to produce a translation of that publication and fix it on paper. This would fall within all the parameters necessary to make this translation a derivative work. However, they do not publish the translation. Nor do they even show it to anyone. They do, however, study the material in it after the translation is completed. Having educated themselves on the subject matter covered in the translation, they come up with an invention which becomes commercially viable. And they develop the invention with a moderate degree of commercial success. A number of years after, someone else uncovers the unpublished manuscript of the translation and reveals the existence of the translation to the original authors.

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Do the authors have a copyright violation claim against the translator? It seems like it should fall under the research exception, but the question is whether the research exception has been tested in court for unpublished derivative works.

Rather than speculating what a court might say on the subject, I am curious whether the courts have already said anything on this subject.

Answer 1

Probably not

It is not at all correct to say that:

Section 107 (fair use) allows for an exception to copyright restrictions for the purposes of "research."

17 USC 107 reads, in relevant part:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include [and the section goes on to specify the four statutory factors]

The exception is not for "research" but for fair use, for which purposes "such as" research is one aspect of the definition, but not the most important aspect.

So let us consider the actual factors in this hypothetical case:

• (1) the purpose and character of the use,

The purpose appears to be for study and research, not for direct commercial exploitation, so factor (1) favors fair use.

• (2) the nature of the copyrighted work;

The hypothetical does not much describe the source work, but it appears to be an original and creative one, but one describing facts of science or technology, not an imaginative work. Factor (20) thus probably favors fair use slightly, but has not much weight in this case.

• (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole

It would seem that the whole of the source article was translated, so factor three leans against fair use.

• (4) the effect of the use upon the potential market for or value of the copyrighted work.

Because the translation is not published nor widely circulated, it does not serve as a substitute for the original for the general public, nor is there any harm done to any actual or potential market for the original. No economic harm is done to the copyright holder, nor would there be any such harm if many people separately engaged in similar use. Thus factor (4) strongly favors fair use.

While no one can ever be sure what a court will rule in a particular fair use determination, the analysis above suggests to me that this use would in fact be held to be a fair use, given the circumstances in the question.

What gets eventually exploited in this hypothetical is not the expression of the original source work, but the ideas it contains, and as 17 USC 102(b) says:

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Had the researcher translated and paraphrased at once, producing a description of the ideas contained in the original work, but not translating their expression, there would have been no question of copyright infringement.

Also, in those cases where the ideas are so closely bound up with their expression that they cannot be expressed in any other way, or only in one of a very few possible ways, the expression loses protection. This can happen with scientific and technical documents.

Thus it would appear that there is no infringement in the situation described in the question, but not because of a "research exception".

There is a great deal of case law on fair use in general, but I do not know of any that really closely fits the hypothetical in the question. Fair use case law tends to be tightly tied to the specific facts of the case at hand.

In countries other than the US the exceptions to copyright are quite different both from the US concept of fair use and from each other, but this hypothetical would I think fall under an exception in several of them at least.

Answer 2

A partial answer - the invention has no relation to copyright law. Copyright covers a specific expression, not the underlying ideas. It is the ideas in the work that inspired the invention. Its commercial success has nothing to do with a potential copyright infringement.