On 04/27/99, Barbara Ruhmann <brruhmann[_at_]ucdavis.edu> wrote:
>
> On Mon, 26 Apr 1999, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> >
> > 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.
Again, as in your example of taking an entire work, charging more than acutal cost -- which is not simply the cost of the paper -- militates against fair use, but is not determinative. The guidelines to which you refer are persuasive authority, but are not the statute. Fair use is determined by the factors in the statute.
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