dissenting:
The stipulated facts crisply present the fair use issues that govern the photocopying of entire journal articles for a scientist’s own use, either in the laboratory or as part of a personal file assisting that scientist’s particular inquiries. I agree with much in the majority’s admirable review of the facts and the law. Specifically, I agree that, of the four nonexclusive considerations bearing on fair use enumerated in section 107, the second factor (the nature of the copyrighted work) tends to support a conclusion of fair use, and the third factor (the ratio of the copied portion to the whole copyrighted work) militates against it. I respectfully dissent, however, in respect of the first and fourth factors. As to the first factor: the purpose and character of Dr. Chickering’s use is integral to transfor-mative and productive ends of scientific research. As to the fourth factor: the adverse effect of Dr. Chickering’s use upon the potential market for the work, or upon its value, is illusory. For these reasons, and in light of certain equitable considerations and the overarching purpose of the copyright laws, I conclude that Dr. Chiekering’s photocopying of the Catalysis articles was fair use.
A. Purpose and Character of the Use
The critical facts adduced by the majority are that Dr. Chiekering is a chemical engineer employed at a corporate research facility who keeps abreast of developments in his field by reviewing specialized scientific and technical journals, and who photocopies individual journal articles in the belief that doing so will facilitate his current or future professional research. 37 F.3d at 884. I agree with the majority that the immediate goal of the photocopying was “to facilitate Chicker-ing’s research in the sciences, an objective that might well serve a broader public purpose.” 37 F.3d at 890-91. The photocopying was therefore integral to ongoing research by a scientist. In my view, all of the statutory factors organize themselves around this fact. The four factors listed in section 107 (and reviewed one by one in the majority opinion) are considerations that bear upon whether a particular use is fair; but those factors are informed by a preamble sentence in section 107 that recites in pertinent part that “the fair use of a copyrighted work, including such use by reproduction in copies ... for purposes such as ... scholarship, or research, is not an infringement of copyright.”
“[TJhere is a strong presumption that factor one favors the defendant if the allegedly infringing work fits the description of uses described in section 107.” Wright v. Warner Books, Inc., 953 F.2d 731, 736 (2d Cir.1991). Much of our fair use case law has been generated by the use of quotation in biographies, a practice that fits “ ‘comfortably within’ the[ ] statutory categories ‘of uses illustrative of uses that can be fair.’” New Era Publications Int’l, ApS v. Carol Pub. Group (New Era II), 904 F.2d 152, 156 (2d Cir.) (quoting Salinger v. Random House, Inc., 811 F.2d 90, 96 (2d Cir.), cert. denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987)), cert. denied, 498 U.S. 921, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990)). The photocopying of journal articles as part of ongoing scientific research fits just as squarely within the scope of these illustrative fair uses. This court has stated on several occasions: “ ‘[I]f a book falls into one of these categories [i.e., criticism, scholarship or research], assessment of the first fair use factor should be at an end-’ ” Wright, 953 F.2d at 736 (quoting New Era II, 904 F.2d at 156 (quoting New Era Publications Int’l, ApS v. Henry Holt & Co., 884 F.2d 659, 661 (2d Cir.1989) (Miner, /., concurring in denial of rehearing banc))). This is so “even though, as will often be the case,” the copyist “ ‘anticipates profits.’ ” Wright, 953 F.2d at 736-37 (quoting New Era II, 904 F.2d at 156 (quoting Salinger, 811 F.2d at 96)).
The majority recognizes that photocopying puts the articles into a “a useful format,” 37 F.3d at 891, for use in a laboratory, where the bound volume or whole journal would be cumbersome and subject to damage, and that “these purposes might suffice to tilt the first *901fair use factor in favor of Texaco if these purposes were dominant.” 37 F.3d at 887. This view modifies the district court’s conclusion that fair use might allow the photocopying of whole articles for use in the laboratory “if the original were copied onto plastic paper so that it could be used in a wet environment, onto metal so that it would resist extreme heat, onto durable archival paper to prevent deterioration, or onto microfilm to conserve space_” American Geophysical Union v. Texaco Inc. 802 F.Supp. 1, 14 (1992). The majority notes, however, that Dr. Chickering “did not even have occasion to use five of the photocopied articles at all,” 37 F.3d at 884, and emphasizes that Dr. Chickering’s photocopying was done to assemble a personal file used, in Dr. Chickering’s phrase, for “future retrieval and reference.” 37 F.3d at 887. The majority calls this a “predominantly] archival purpose,” 37 F.3d at 892, and therefore not in the nature of research. In my view, the research function is far broader than, the majority opinion and the district court opinion contemplate.
Replication of laboratory experiments is of course a form of scientific research, but it is not the whole or main part of it. Often, a researcher needs to know what others have thought and done in order to steer clear of repetition and dead ends, to evaluate theories and hypotheses for possible theoretical development or commercial application, to give credit to others, and much else. None of this requires a scientist to enter a. laboratory. In any event, to describe Dr. Chickering’s file as “archival,” as the majority does, is a misnomer: an archive is ordinarily a bulk of documents accumulated by a bureaucratic process and serving as a resource for public or institutional reference. By contrast, Dr. Chicker-ing’s personal file contains articles available for reference to assist the memory, curiosity and ongoing inquiries of a single researcher. As such, it is part of a transformative process of scientific research that has a long history.
The majority concludes that the photocopying was “done for the primary purpose of providing Chickering with his own personal copy of each article,” dismissively rejecting (in a footnote) Texaco’s argument that the true, and fundamental, purpose for the photocopying was research:
Though Texaco claims that its copying is for “research” as that term is used in the preamble of section 107, this characterization might somewhat overstate the matter. Chickering has not used portions of articles from Catalysis in his own published piece of research, nor has he had to duplicate some portion of copyrighted material directly in the course of conducting an experiment or investigation. Rather, entire articles were copied as an intermediate step that might abet Chickering’s research.
37 F.3d at 888 n. 7. In my view, it is no overstatement to call this process research. I have difficulty thinking of anything else to call it.
The scientific method, properly conceived, is much more than a system of repeated laboratory experimentation.’ Rather, it is a dynamic process of “planned co-operation of scientists, each of whom uses and continues the invéstígations of his predecessors....” Edgar Zilsel, “The Sociological Roots of Science,” in Hugh F. Kearney, ed. Origins of the Scientific Revolution, 97 (1968). The scientific journal is an essential tool in this incremental, ongoing, transformative process. The physicist Peter L. Kapitza has noted the central role that journals play in it:
[T]he fundamental factor determining the collective work of scientists is the organization of information exchange. The more effectively this is carried out, the greater its scale and the more intensively science develops. The most effective method of scientific information up to date [sic] appears to be its dissemination through periodicals, since one can most widely and quickly communicate the scientific achievements in this way to a large number of interested scientists.
Peter L, Kapitza, Experiment, Theory, Practice, 173 (1980). Today there are some 200,-000 scientific journals published worldwide. Id. at 174.
A use that is reasonable and customary is likely to be a fair one. See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 550, 105 S.Ct. 2218, 2225, 85 L.Ed.2d 588 (1985) (“the fair use doctrine *902was predicated on the author’s implied consent to ‘reasonable and customary’ use”). The district court, the majority and I start from the same place in assessing whether Dr. Chickering’s photocopying is a reasonable and customary use of the material: making single photocopies for research and scholarly purposes has been considered both reasonable and customary for as long as photocopying technology has been in existence. See Williams & Wilkins Co. v. United States, 203 Ct.Cl. 74, 487 F.2d 1345, 1355-56 (1973), aff'd by an equally divided court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264 (1976). The majority quotes the district court’s short answer to this important insight: “To the extent the copying practice was ‘reasonable’ in 1973 [when Williams v. Wilkins was decided], it has ceased to be ‘reasonable’ as the reasons that justified it before [photocopying licensing] have ceased to exist.” 802 F.Supp. at 25. I do not agree at all that a reasonable and customary use becomes unfair when the copyright holder develops a way to exact an additional price for the same product. Moreover, I view the advent of the CCC as an event that bears analytically upon the distinct question of whether Dr. Chickering’s use supersedes the original (the fourth factor). I therefore reach an issue — reasonable and customary use — not explored by the district court or by the majority.
Consider what Dr. Chickering actually does with scientific journals. As a research scientist, he routinely sifts through the latest research done by his peers, much of which is printed in journals such as Catalysis. He determines which articles potentially assist his specific trains of thought and lines of inquiry, and he photocopies them. Relative to the volume of articles in each issue, his photocopying is insubstantial. He then files the articles for possible future use or study. As the majority observes, “[b]efore modern photocopying, Chickering probably would have converted the original article into a more serviceable form by taking notes, whether cursory or extended; today he can do so with a photocopying machine.” 37 F.3d at 891-92. The majority’s footnote 10, appended to this passage, questions whether or not a scholar’s handwritten copy of a full work is “necessarily” a fair use. As the majority adds, however, Williams & Wilkins says it is:
[I]t is almost unanimously accepted that a scholar can make a handwritten copy of an entire copyrighted article for his own use, and in the era before photoduplication it was not uncommon (and not seriously questioned) that he could have his secretary make a typed copy for his personal use and files. These customary facts of copyright-life are among our givens.
Williams & Wilkins, 487 F.2d at 1350. What Dr. Chickering does is simply a technologically assisted form of note-taking, such as has long been customary among researchers: the photocopy machine saves Dr. Chickering the toil and time of recording notes on index cards or in notebooks, and improves the accuracy and range of the data, charts, and formulas he can extract from the passing stream of information; but the note-taking purpose remains the same.
The anthropologist Bruno Latour spent two years studying scientists at the Salk Institute for Biological Sciences. During the course of his study, he conducted anthropological observations of a neurobiologist working on an article for a journal. This scientist’s desk was littered with copies of journal articles authored by other scientists:
Xeroxed copies of articles, with words underlined and exclamation marks in the margins, are everywhere. Drafts of articles in preparation intermingle with diagrams scribbléd on scrap paper, letters from colleagues and reams of paper spewed out by the computer in the next room; pages cut from articles are glued to other pages; excerpts from draft paragraphs change hands between colleagues while more advanced .drafts pass from office to office being altered constantly, retyped, recorreeted, and eventually crushed into the format of this or that journal.
Bruno Latour and Steve Woolgar, Laboratory Life: The Social Construction of Scientific Facts, 49 (1979). One essential step toward this drafting process is the accumulation over time of the journal articles that reflect the current state of knowledge that the journal author seeks to advance. Latour *903confirms that the photocopying of journal articles, and the use of them, is customary and integral to the creative process of science.
The majority emphasizes that, as it happened, Dr. Chickering did not “use” the photocopied articles because, in five out of eight instances, he filed them away. There is nothing odd about making notes one does not immediately use, or that one may never consult again. Photocopies, which to Dr. Chick-ering are the functional counterpart of notes, are used (or not, as the case may be) in the same way. Dr. Chickering’s fifing away of these photocopies does not subvert his claim of fair use. Like the majority, I am convinced that his deposit of the photocopied articles in his personal file, pending his personal use of them in the future, is an important fact bearing upon fair use; but- the dominant significance of that fact, under the first factor of section 107, is that (whether he “uses” them or files them) the articles are not re-sold or retailed in any way. If the copies were sold by Dr. Chickering, that would be a telling — possibly determinative— fact. Whát Dr. Chickering has done reinforces the view that his photocopying was not commercial in purpose or character/
The majority recognizes that, while the photocopying of the Catalysis articles was “not technically a transformative use,” there is “significant independent value” in converting the articles to a photocopied format. 37 F.3d at 891. Nevertheless, the majority concludes that this transformative process does not militate in favor of fair use because of the “predominant archival purpose”. In my view, however, the “archival purpose” is just a step in the process of taking and keeping notes, which should ordinarily entail no transformation of the material. Good notes, being as precise and copious as time allows, do not aspire to transform the original text, but are useful in research only to the extent that they faithfully record the original. Accordingly, I find the nature and purpose of the use to be fully transformative, and therefore find that this factor weighs clearly in favor of Texaco.
B. Effect Upon Potential Market or Value
In gauging the effect of Dr. Chickering’s photocopying on the potential market or value of the copyrighted work, the majority properly considers two separate means of marketing: (1) journal subscriptions and sales, and (2) licensing revenues and fees.
(1) Subscriptions and sales. The majority makes clear that, considered solely in terms of journal subscriptions and sales, this factor is a toss-up that may tip in the publisher’s favor, but only after teetering for a while: “At best, the loss of a few journal subscriptions tips the fourth factor only slightly toward the publishers because evidence of such loss is weak evidence that the copied articles themselves have lost any value.” 37 F.3d at 896-97. The majority pointedly observes that no evidence is offered that the photocopying at issue here, “if widespread, would impair the marketability of journals_” 37 F.3d at 896. Since Dr. Chiekering’s use maximizes the utility of a Catalysis subscription for the only audience it is ever likely to capture, I do not consider that the failure of proof in this respect is an oversight by the publishers or their able counsel.
As to the individual articles photocopied by Dr. Chickering, I agree with the majority— as I read the opinion — that one cannot put a finger on any loss suffered by the publishers in the value of the individual articles or in the traditional market for subscriptions and back issues. The district court found that Texaco would not purchase back-issues or back volumes in the numbers needed to supply individual copies of articles to individual scientists.
Finally, the circulation of Catalysis among a number of Texaco scientists can come as no surprise to the publisher of Catalysis, which charges double the normal subscription rate to institutional subscribers. The publisher must therefore assume that, unless they are reading Catalysis for pleasure or committing it to memory, the scientists will extract what they need and arrange to copy it for personal use before passing along the institutional copies.
*904(2) Licensing Revenues and Fees. The majority states that “[o]nly an impact on potential licensing revenues for traditional, reasonable, or likely developed markets should be legally cognizable when evaluating a secondary use’s ‘effect upon the potential market for or value of the copyrighted work.’ ” 37 F.3d at 897-98. That statement of the law, with which I fully agree, supports the conclusion that the availability of a CCC license has little to do with fair use. The Supreme Court, in Harper & Row, held that this fourth factor addresses “ ‘use that supplants any part of the normal market for a copyrighted work_’” 471 U.S. at 568, 105 S.Ct. at 2235 (quoting S.Rep. No. 473, 94th Cong., 1st Sess. 65 (1975)). The Court has more recently declared, in considering the fair use ramifications of parody, that “[t]he market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop.”' Campbell v. Acuff-Rose Music, Inc.,— U.S. -, -, 114 S.Ct. 1164, 1178, 127 L.Ed.2d 500 (1994). One factor deemed to make parody eligible for treatment as a fair use is that copyright holders do not ordinarily license artistic criticisms of their own works. However, even if authors were to seek to license these secondary works, it is not clear that they would succeed, because the Court found the secondary works to be a fair use: “when ... the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred.” Id. at -, 114 S.Ct. at 1177.
In this case the only harm to a market is to the supposed market in photocopy licenses. The CCC scheme is neither traditional nor reasonable; and its development into a real market is subject to substantial impediments. There is a circularity to the problem: the market will not crystallize unless courts reject the fair use argument that Texaco presents; but, under the statutory test, we cannot declare a use to be an infringement unless (assuming other factors also weigh in favor of the secondary user) there is a market to be harmed. At present, only a fraction of journal publishers have sought to exact these fees. I would hold that this fourth factor decisively weighs in favor of Texaco, because there is no normal market in photocopy licenses, and no real consensus among publishers that there ought to be one.
The majority holds that photocopying journal articles without a license is an infringement. Yet it is stipulated that (a) institutions such as Texaco subscribe to numerous journals, only 30 percent of which are covered by a CCC license; (b) not all publications of each CCC member are covered by the CCC licenses; and (c) not all the articles in publications covered by the CCC are copyrighted. It follows that no CCC license can assure a scientist that photocopying any given article is legal. I will separately consider the Transactional Reporting Service (the per-copy transactional license) and the Annual Authorization Service (the blanket license). I confine my discussion here to scientists, although I note that the record reflects CCC’s intention to pursue licensing arrangements in other sectors as well.
Under a transactional license, the user must undertake copyright research every time an article is photocopied. First, one must consult a directory to determine whether or not the publisher of the journal is a member of the CCC. If it is, one must ascertain whether the particular publication is one that is covered by the CCC arrangement, because not all publications of participating publishers are covered. Then one must somehow determine whether the actual article is one in which the publisher actually holds a copyright, since there are many articles that, for such reasons as government sponsorship of the research, are not subject to copyright. The production director of plaintiff Springer-Verlag testified at trial that it is almost impossible to tell which articles might be covered by a copyright. Since even an expert has difficulty making such a determination, the transactional scheme would seem to require that an intellectual -property lawyer be posted at each copy machine. Finally, once it is determined that the specific article is covered, the copyist will need to record in a log the date, name of publication, publisher, title and author of article, and number of pages copied.
*905It may be easier to hand copy the material. The transactions costs alone would compel users to purchase a blanket license. However, if (as the majority holds) three of the fair use factors tip in favor of the publishers even without considering the market for license fees, a blanket license is no safe harbor. Individual publishers remain free to stand upon the rights conferred in this Court’s opinion, and negotiate separate licenses with separate terms, or sell offprints and refuse any license at all. Unless the publisher’s licensing rights are made to depend upon whether or not the publisher participates in the CCC, we have the beginnings of a total market failure: with many thousands of scientific publications in circulation, a user cannot negotiate licensing fees individually with numerous publishers — unless it does nothing else. For many publications, licenses are simply not available. As to those, Dr. Chiek-ering has the choice of hand copying, typescript, or the photocopying of selected pages only.
The blanket license fares no better. The CCC license cannot confer absolution for the photocopying of articles published by nonmembers of the CCC. Nor can the participating publishers properly collect fees for the photocopying of articles for which they do not hold the copyright. The district court found that there is currently a viable market for licensing, chiefly for the following reasons:
(a) “[M]any of the largest corporations involved in research have become licensees under a CCC Annual Authorization.” 802 F.Supp. at 24. However, until this case is decided, companies have had little choice but to become licensees or defendants.
(b) The CCC has developed an Annual Authorization arrangement that “permits free copying without any administrative burden of record-keeping or reporting.” Id,.. That system works, however, only if one ignores the rights of publishers who are non-members of the CCC.
(c) “[Publishers and individual users have ... developed private annual licensing agreements. For example, AT & T Bell Labs, in addition to its membership in the CCC, has over 200 agreements with publishers covering photocopying with respect to some 350 journals that are not registered with the CCC. Furthermore, publishers have extended photocopying licenses to document delivery services.” Id. at 24-25.
These developments “(and the other parallel steps taken by the owner-user communities)”, satisfy the district court that “[Reasonably priced, administratively tolerable licensing procedures are available....” Id. at 25.
It is hard to escape the conclusion that the existence of the CCC — or the perception that the CCC and other schemes for collecting license fees are or may become “administratively tolerable” — is the chief support for the idea that photocopying scholarly articles is unfair in the first place. The majority finds it “sensible” that a use “should be considered ‘less fair’ when there is a ready market or means to pay for the use.” 37 F.3d at 898. That view is sensible only to a point. ■ There is no technological or commercial impediment to imposing a fee for use of a work in a parody, or for the quotation of a paragraph in a review or biography. Many publishers could probably unite to fund a bureaucracy that would collect such fees. The majority is sensitive to this problem, but concludes that “[t]he vice of circular reasoning arises only if the availability of payment is conclusive against fair use.” 37 F.3d at 898. That vice is not avoided here. The majority expressly declines to “decide how the fair use balance would be resolved if a photocopying license for Catalysis articles were not currently available.” 37 F.3d at 899. Moreover, the “important” fourth factor, 37 F.3d at 899, tips in favor of the publishers (according to the majority) “[pjrimarily because of lost licensing revenue” and only “to a minor extent” on the basis of journal sales and subscriptions. 37 F.3d at 899.
I do not agree with the majority that the publishers “have created, primarily through the CCC, a workable market for institutional users to obtain licenses for the right to produce their own copies of individual articles via photocopying.” 37 F.3d at 898. By the CCC’s admission, in its correspondence with the Antitrust Division of the Justice Department, “the mechanism for the negotiation of a photocopy license fee is often not even in *906place_ Nor can it be said that CCC’s current licensing programs have adequately met the market’s needs.”1 There is nothing workable, and there is no market.
Even if the CCC is or becomes workable, the holder of a CCC blanket license is not thereby privileged to photocopy journal articles published by non-members of the CCC, as to which articles there is no “ready market or means to pay for the fair use”. See 37 F.3d at 898. This Court has ended fair-use photocopying with respect to a large population of journals, but the CCC mechanism allows fair-use photocopying only of some of them. The facts before us demonstrate that the holder of a blanket license must still deal separately with CCC-member Bell Labs as to certain hundreds of its publications. With respect to the journals for which the publishers do not market licenses, users will either (a) research which publications are in this category and copy them longhand, in typescript or in partial photocopy, or (b) ignore our fair-use doctrine as unworkable. Neither option serves scientific inquiry or respect for copyright. In any event, it seems to me that when a journal is used in a customary way — a way that the authors uniformly intend and wish — the user should not be subjected on a day to day basis to burdens that cannot be satisfied without a team of intellectual property lawyers and researchers.
The fourth factor tips decidedly in Texaco’s favor because there is no appreciable impairment of the publishing revenue from journal subscriptions and sales; because the publisher captures additional revenue from institutional users by charging a double subscription price (and can presumably charge any price the users will pay); and because the market for licensing is cumbersome and unrealized.
C. Equitable Considerations
The fair use doctrine is an “equitable rule of reason.” Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 448 & n. 31, 104 S.Ct. 774, 792 & n. 31, 78 L.Ed.2d 574 (1984). Applying the doctrine requires a case-by-case review that includes the four factors listed in section 107; but the statutory list is not exhaustive or exclusive. See Harper & Row, 471 U.S. at 549, 105 S.Ct. at 2225. The purpose of this equitable rule is “ ‘to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’ ” Harper & Row, 471 U.S. at 550 n. 3, 105 S.Ct. at 2225 n. 3 (quoting Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., 621 F.2d 57, 60 (2d Cir.1980)).
“ ‘[T]he author’s consent to a reasonable use of his copyrighted works ha[s] always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus ... frustrate the very ends sought to be attained.’” Harper & Row, 471 U.S. at 549, 105 S.Ct. at 2225 (quoting H. Ball, Law of Copyright and Literary Property 260 (1944)). “[T]he fair use. doctrine [is] predicated on the author’s implied consent to ‘reasonable and customary1 use when he release[s] his work for public consumption....” Id. at 550, 105 S.Ct. at 2225. All facts bearing upon the terms of that consent are germane to this analysis.
The single fact that evidences the fair use expectation of the people whose creativity Congress seeks to stimulate, is that they give away their copyright in order to promote their work, their ideas and their reputations. The district court found that the “publishers do not pay authors money to publish their articles_” American Geophysical, 802 F.Supp. at 26. The majority finds, “[n]o form of money payment is ever provided to authors whose works are published.” 37 F.3d at 883-84; see also id. at 896 (“[Publishers do not make any payment to authors for the right to publish their articles or to acquire their copyrights_”).
This is not to say, however, that the authors derive no benefit from the use of their *907works. To the contrary: “[T]he authors derive benefit from the publication of their works far more important than any small royalty the traffic might bear.” American Geophysical, 802 F.Supp. at 26. The authors of scientific articles work and publish in order to gain distinction, appointment, resources, tenure. But they seek and derive absolutely no direct cash benefit from publication. It seems to me that this fact is of great importance: it means that, so long as the copyright system assures sufficient revenue to print and distribute scientific journals, the level of copyright revenue is not among the incentives that drive the authors to the creative acts that the copyright laws are intended to foster.
As to this issue, the majority adopts the district court’s view that it is “irrelevant” because the authors have assigned the copyright to publishers who risk capital to achieve the wide dissemination of the articles that the authors want and need. 802 F.Supp. at 27. The district court greatly overstates the case in concluding that “[ojnce an author has assigned her copyright, her approval or disapproval of photocopying is of no further relevance.” Id. As a commercial proposition, that is unassailable. But equitable considerations under the copyright law justify an inquiry into the incentives for creating the work — here, the scientific journal articles. See Harper & Bow, 471 U.S. at 550 n. 3, 105 S.Ct. at 2225 n. 3 (equitable rule of reason permits inquiry into whether “rigid application of the copyright statute ... would stifle the very creativity which that law is designed to foster.”). “‘The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.’ ” Fogerty v. Fantasy, Inc., — U.S. -, -, 114 S.Ct. 1023, 1029, 127 L.Ed.2d 455 (1994) (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975)). To that end, we are reminded that:
“The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’ To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.”
Id. — U.S. at-, 114 S.Ct. at 1030 (quoting Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349-50, 111 S.Ct. 1282, 1289-90, 113 L.Ed.2d 358 (1991)).
The CCC’s licensing fees unquestionably benefit the copyright holders, but no argument has been made that this additional revenue will fuel scientific creativity. According to Kapitza, “[e]very 10-15 years, the number of journals doubles and it has now reached the imposing number of 200,000.” Experiment, Theory, Practice at 174. This proliferation of journals has been accomplished through sales and subscriptions. Clearly, the incentives currently in place for journal publishing assure a fair return, or else we would not see the exponential growth in scientific journals reported by Kapitza. Under the current system, publishers sell journals and subscriptions. They can, and do, charge institutional users more money, and are free to charge what they like.
Since the copyright laws seek' to stimulate creativity, we should consider the incentives chiefly from the perspective of the authors and scientists. It has been recognized by this Court that in the scientific community, “what is valuable [to the authors] is recognition because it so often influences professional advancement and academic tenure.” Weissmann v. Freeman, 868 F.2d 1313, 1324 (2d Cir.), cert. denied, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989). From their point of view, then, what is truly important is the wide dissemination of their works to their colleagues.
The incentives for scientific publication have been in place since the project of science began to be perceived as a cooperative venture more than three centuries ago. See E. Zilsel, “The Sociological Roots of Science,” in Hugh F. Kearney, ed., Origins of the Scientific Revolution, at 97 (1968) (“In his Nova Atlantis Bacon depicted an ideal state in which technological and scientific progress is reached by planned co-operation of scientists, each of whom uses and continues the investigations of his predecessors and fellow workers.”).2 Scientists communicate through *908journals, and use them to stake claims to new ideas, disseminate their ideas, and advance their careers and reputations. These “authors have a far greater interest in the wide dissemination of their work than in royalties _” American Geophysical, 802 F.Supp. at 27. That, evidently, is why they do not seek or expect royalties, and that is why licensing fees cannot be expected to increase or diminish their creativity or their drive to publish. The majority’s ruling on fair use will add to the cost, time and effort that scientists spend to scan, keep and use journal articles, and will therefore tend to diminish the only reward that the authors seek from publication.
Nowhere in the case law is there support for the proposition that the monopoly granted by copyright is designed to ensure the holder a maximum economic return; rather, the law’s purpose is to balance competing interests — assuring the author a fair return, while permitting creative uses that build upon the author’s work. See, e.g., Fogerty, — U.S. at-, 114 S.Ct. at 1029 (“While it is true that one of the goals of the Copyright Act is to discourage infringement, it is by no means the only goal of that Act.... ‘The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity....’”) (quoting Twentieth Century Music, 422 U.S. at 156, 95 S.Ct. at 2044 (1975)); Harper & Row, 471 U.S. at 546, 105 S.Ct. at 2223 (“The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors.”). More fundamentally, Dr. Chiekering’s photocopying is part of a creative enterprise that Dr. Chiek-ering conducts in common with the authors of the articles. For that reason, and the others stated in this dissent, I conclude that Dr. Chickering’s photocopying of isolated journal articles to assist his own research inquiries is fair use.
Dee. 23, 1994
PER CURIAM:The petition for rehearing is denied. The opinion filed October 28, 1994, is amended in the following respects:
[Editor’s Note: Amendments incorporated for purpose of publication.]
Judge Jacobs votes to grant the petition for rehearing, but agrees with the language changes made by this amending opinion.
. Letter from R. Bruce Rich, Weil, Gotshal & Manges (as counsel to CCC) to Thomas H. Lid-dle. Antitrust Division, United States Department of Justice (February 2, 1992) (filed as part of supplementation of record, pursuant to motion granted on October 12, 1993).
. The Royal Society of London, founded in 1662, was the first to give institutional validity to the Baconian principles of verified experimentation and public reporting of theories and experimen*908tal results. See William Eamon, "From the Secrets of Nature to Public Knowledge,” reprinted in David C. Lindberg and Robert S. Westman, eds. Reappraisals of the Scientific Revolution, at 349-57 (1991). The "ideal of cooperative research” allowed scientists to approach their work more methodically, and the project of science evolved into the system of experimentation, reporting, verification, and modification that is the scientific method. Id. The first scientific journal, Philosophical Transactions, was published in London in the 1660s. A. Rupert Hall, The Revolution in Science, 1500-1700, 230-31 (1983). The publisher, Henry Oldenburg, “created the scientific journal and the scientific paper as a means of communication,” providing a vehicle for international communication between scientists about the results of their experiments. Id. at 231. In Philosophical Transactions, "[f]re-quent controversies over moot theoretical issues directed experimental interest to the testing of the conflicting theories; new hypotheses were broadcast; recent scientific works were critically reviewed; and plans for initiating research along certain lines were made public.” Robert K. Merton, Science, Technology & Society in Seventeenth Century England, 224 (1978).