The following is just food for thought when it comes to an investigator using NFPA documents in your investigation.

Where the NFPA is stating their product, the codes and standards, are copyrighted and there by cannot be reproduced there are limitations as to this assertion. If an investigator is relying on a section of the document as evidence to support the conclusion reached then that section of the document can be reproduced under the fair use doctrine. The fair use doctrine is part of the copyright law. It is found under section 107 of the Copyright Law.
107. Limitations on exclusive rights: Fair use41
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—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

There has been court ruling that have stated that if the “purpose and character” of the use was not commercial, but part of a litigation proceeding it is cover under the fair use doctrine. The court’s decision relied on a Congressional note to the statute that indicated that fair use would include “reproduction of the work in legislative or judicial proceedings or reports.”

The second is what was the intent of the copyright material. Was it anticipated that this material would be used research or as evidence in litigation.

A court noted as to the third section that in applying the fair use factor, the court is to “consider whether the quantity of the material used was reasonable in relationship to the purpose of the copying.” Here, the purpose was to prevail in litigation, and “litigants regularly produce documents in full.” The use, even if in full, appeared reasonable, and hence did not weigh against finding fair use.

On the fourth factor, a court noted that “the focus is on whether the defendants are offering a market substitute for the original.” In evaluating this factor, both Supreme Court and Second Circuit law have emphasized that the harm to the original market work must come through diversion of its natural market, and not through, for example, harming demand through criticism.

Jim Mazerat
Forensic Investigations Group