Re: Coursepacks-outsourcing online distribution

On Mon, 26 Apr 1999, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
>
> On Fri, Apr 23, 1999, Barbara Ruhmann <brruhmann[_at_]ucdavis.edu> wrote:
>
> > On Thu, 22 Apr 1999, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> > >
> > > The Sixth Circuit also (if I recall correctly) relied on the
> > > assumption that MDS's coursepacks harmed PUP by depriving them of
> > > a license fee ... an analysis that the dissent rightly pointed out
> > > amounts to a circular argument, since if the copying was fair use
> > > to begin with, there would have been no entitlement to a license
> > > fee.
> >
> > If I may quote from a copy of the newsletter sent out by the AAP
> > following the MDS decision. This is from a letter released in
> > Washington, DC November 11, 1996, entitled "Publishers Win Important
> > Fair Use Victory":
> >
> > Paragraph 3, 2nd sentence:
> > ...
> > Judge Nelson rejected MDS's argument that it was "fair use" to copy
> > and sell substantial excerpts of copyrighted works for educational
> > purposes without seeking permission or paying licensing fees to the
> > copyright holders...".
> > End of quote.
> >
> > What I was always told, and what I accept as proper to "fair use" is
> > a minimal use of copyrighted material which must meet the four basic
> > factors stated in the US copyright law. What the quote above notes
> > is the word "substantial". Quite literally, we have been lead to
> > understand that to copy anything in its entirety is NOT "fair use".
> > Therefore, even if what we were seeking to print under "fair use"
> > were a 17-syllable haiku, "fair use" could be denied, inasmuch as
> > even though the piece was incredibly short, the right to print all
> > 17 syllables was not ours to determine, but would have to be cleared
> > through a publisher or authorized entity - unless it managed to fall
> > under still more guidelines which might make it eligible for copying.
> > Nevertheless, even under additional guidelines, the intent is that
> > "fair use" is not to cover "substantial" copying of published material.
>
> I can't agree. "The amount and substantiality of the portion used in
> relation to the copyrighted work as a whole" is but one of four factors
> to be weighed in determining whether a use is fair. I know of no case
> law standing for the principle that copying of a work in its entirety
> is a priori not fair use. Indeed, the fair use statute's specific
> authorization of "multiple copies for classroom use" clearly
> contemplates at least one situation in which copying an entire work
> (be it haiku or article or book) might well fair use -- and it is
> precisely the situation that was at issue in PUP v MDS.

But a further guideline regarding "multiple copies for classroom use" notes that "No charge shall be made to the student beyond the actual cost of the photocopying". (From the NACS/AAP booklet "Questions and Answers on Copyright for the Campus Community"). If MDS was copying and taking no profit, charging strictly for the cost of making the copies, then it might well be fair use. As an off-campus entity, and a business (therefore seeking profit), I assume that he was charging more than just the cost of the paper. This does bring up the question, though, of what constitutes an actual cost. I believe if that question were answered by an institutional copying service, and a private service, the responses would be nowhere near the same.

Barb
Barbara Ruhmann
Text Buyer
UCD Bookstore
University of California, Davis
Phone 530-752-5538
Fax 530-752-4791
http://www-bookstore.ucdavis.edu/ Received on Tue Apr 27 1999 - 15:28:36 GMT