Harper & Row v. Nation Enterprises, 471 U.S.
539 (1985), was a United
States Supreme Court decision in which public interest in learning about a
historical figure’s impressions of a historic event was held not to be
sufficient to show fair use of material otherwise protected by
copyright.[1] Defendant, The Nation, had summarized and quoted
substantially from A Time to Heal, President Gerald Ford's forthcoming
memoir of his decision to pardon former president Richard Nixon.
When Harper & Row, who held the rights to A Time to Heal, brought
suit, The Nation asserted that its use of the book was protected under the
doctrine of fair use, because of the great public interest in a historical
figure’s account of a historic incident. The Court rejected this argument
holding that the right of first publication was important enough to find in
favor of Harper.
HOLDINGS: Fair use is not a defense to the pre-publication, commercial
appropriation of work by a famous political figure simply because of the
public interest in learning of that political figure's account of a historic event.
FACTS: Former President Gerald Ford had written a memoir, A Time to
Heal, including an account of his decision to pardon Richard Nixon. Ford
had licensed his publication rights to Harper & Row, which had
contracted for excerpts of the memoir to be printed in Time magazine.
Instead, The Nation magazine published 300 to 400 words of verbatim
quotes from the 500-page book without the permission of Ford, Harper &
Row, or Time. Based on this prior publication, Time withdrew from the
contract (as it was permitted to by a clause therein), and Harper & Row
filed a lawsuit against The Nation for copyright infringement. The
Nation asserted as a defense that Ford was a public figure, and his
reasons for pardoning Nixon were of vital interest, and that appropriation
in such circumstances should qualify as a fair use.
The federal trial judge, Richard Owen, ruled in favor of Harper & Row and
awarded damages.[2][3] The Second Circuit Court of Appeals reversed the
ruling, finding that The Nation's actions in quoting the memoirs were
protected by fair use privilege.[4] Harper & Row appealed this ruling to the
Supreme Court.
ISSUE: The issue before the Court was whether a fair use existed where
the purported infringer published a public figure’s unpublished work on an
important public event.
Majority and minority opinions
The Court, in an opinion by Justice O'Connor noted that the right of first
publication is a particularly strong right, and held that there was no 'public
figure' exception to copyright protection, asserting that "the promise of
copyright would be an empty one if it could be avoided merely by dubbing
the infringement a fair use 'news report' of the book."[1]The Court applied
the statutory four factor test to determine if the use was fair, and made
the following findings:
1. The purpose or character of the use weighed against a finding of
fair use because, "The Nation's use had not merely the incidental
effect but the intended purpose of supplanting the copyright
holder's commercially valuable right of first publication." The
Nation's intent to benefit by depriving the copyright holders of
their right to first publication suggest that this use was not "fair."
2. Although the nature of A Time to Heal was primarily informative
or factual, and thus deserving of less copyright protection, the
work had substantial expressive value. If The Nation had limited
themselves to only reporting the factual descriptions in the work,
the second factor would have weighed in favor of finding fair use.
(Justice Brennan, dissenting, suggests that the Court does not
take enough account of how much of The Nation's report was
factual.) However, The Nation "did not stop at isolated phrases
and instead excerpted subjective descriptions and portraits of
public figures whose power lies in the author's individualized
expression."
3. The amount and substantiality of the portion used in relation to
the copyrighted work as a whole weighed against a finding of fair
use. Although the "amount" was small, it constituted a
"substantial" portion of the work because the excerpt was the
"heart of the work". The Court noted that an infringer could not
defend plagiarism by pointing to how much else they could have
plagiarized, but did not.
4. The effect of the use on the potential market for the value of the
copyrighted work also weighed against a finding of fair use. The
Nation's infringement led to actual, particular harm, Time's
cancellation of their publishing contract.
Justice Brennan dissented, joined by Justices White and Marshall. Citing
the text of the law under which Harper's brought their lawsuit ("The
enactment of copyright legislation by Congress under the terms of the
Constitution is not based upon any natural right that the author has in his
writings ... but upon the ground that the welfare of the public will be
served and progress of science and useful arts will be promoted by is optionally followed by a preliminary examination, performed by an
securing to authors for limited periods the exclusive rights to their International Preliminary Examining Authority (IPEA).[4] Finally, the
writings." [5]), Brennan found that the importance of "the robust debate of relevant national or regional authorities administer matters related to the
public issues" here outweighed the limited power of copyright ownership. examination of application (if provided by national law) and issuance of
He stated that the descriptions of the work were non-copyrightable, and patent.
the direct quotations were so few, compared to the size of the work as a
A PCT application does not itself result in the grant of a patent, since
whole, that The Nation's article did not constitute an appropriation of
there is no such thing as an "international patent", and the grant of patent
Harper's copyright. Brennan criticized the court for finding copyright
is a prerogative of each national or regional authority.[5] In other words, a
infringement technically based on the 300 words that were quoted in
PCT application, which establishes a filing date in all contracting states,
order to protect Harper's interest in being the first to publish the non-
must be followed up with the step of entering into national or regional
copyrightable historical information in the work.
phases to proceed towards grant of one or more patents. The PCT
procedure essentially leads to a standard national or regional patent
Later treatment application, which may be granted or rejected according to applicable
law, in each jurisdiction in which a patent is desired.
The opinion was later cited by the United States Court of Appeals for the
Second Circuit hearing the case of Salinger v. Random House (1987), in The contracting states,[6] the states which are parties to the PCT,
which J.D. Salinger had objected to the publication of his unpublished constitute the International Patent Cooperation Union.[6]
letters. The court noted that the Supreme Court ruling on Harper & Row
v. Nation Enterprises (1985) had observed "the scope of fair use is
narrower with respect to unpublished works," but denied that the
unpublished nature of Salinger's letters was decisive. ("[The Supreme
Court] stressed the tailoring of fair use analysis to the particular case... It
neither stated nor implied a categorical rule barring fair use of
unpublished works."[6][7]
The court went on to note that the meaning of Harper is somewhat
ambiguous. Either, they reasoned, there are fewer cases in which fair use
may be found when the original work is unpublished or less material may
be copied from unpublished works. The court ultimately decided that the
first was true, and that unpublished works normally have complete
protection against any copying of protected expression.

Patent Cooperation Treaty

The Patent Cooperation Treaty (PCT) is an international patent
law treaty, concluded in 1970. It provides a unified procedure for
filing patent applications to protect inventions in each of its contracting
states. A patent application filed under the PCT is called an international
application, or PCT application.
A single filing of a PCT application is made with a Receiving Office (RO)
in one language. It then results in a search performed by an International
Searching Authority (ISA), accompanied by a written opinion regarding
the patentability of the invention, which is the subject of the application. It