11.0066 Fair Use

Humanist Discussion Group (humanist@kcl.ac.uk)
Sun, 25 May 1997 12:41:38 +0100 (BST)

Humanist Discussion Group, Vol. 11, No. 66.
Centre for Computing in the Humanities, King's College London

[1] From: David Green <david@cni.org> (98)
Subject: NINCH CONFU Report--Pt One

[2] From: David Green <david@cni.org> (128)
Subject: NINCH CONFU Report--Pt Two

Date: Fri, 23 May 1997 17:52:14 -0400
From: David Green <david@cni.org>
Subject: NINCH CONFU Report--Pt One

May 23, 1997

CONFU CONTINUES? Is it time to re-group?
-David Green

What in the world is CONFU (and how is it perceived around the rest of the
world)? This was one of the hotly debated questions during the advertised
"final meeting" of the Conference on Fair Use on May 19, 1997.

The winning answer is that CONFU is a loosely constructed framework called
for in 1995 by the President's Information Infrastructure Task Force's
Working Group on Intellectual Property Rights to enable copyright
proprietors and the educational users of copyright material to develop
guidelines for the fair use of copyrighted digital works.

CONFU, we heard emphasized, was not a Congressionally-mandated body (indeed
was not a body at all); the results and the forthcoming CONFU Report would
certainly not have the force of law or even the status of being read into
legislative history. CONFU is simply a discussion process, that is open to
all. Its Working Groups, which produced three sets of guidelines, are
similarly open to any who wanted (and could afford frequent travel to DC)
to attend.

So what occurred during the final meeting of this informal,
non-legislative, non-binding "conference"?

1. Proposed guidelines, shared broadly since the previous final meeting of
CONFU among the constituencies of those represented, were presented to the
group as a whole with a list of those participating groups, which, after
two years of working together, had endorsed, rejected or had no position on
the guidelines (see list of organizations below).

Of 100 participants, only 60 registered a position on the guidelines and
only 25 had commented on the Digital Images or Distance Learning
Guidelines. Interestingly the commercial proprietary community only
registered comments on the Multimedia Guidelines, which were the most hotly
contested. The mostly nonprofit user community objected in particular to
the Multimedia Guidelines use of specific portion limitations in the fair
use of copyrighted materials. This was not felt to be in the spirit of the
four fair use factors, where context and circumstance play a large part in
determining whether a use is fair.

2. It was clarified that CONFU--as a mere facilitating framework--would not
endorse or "adopt" any set of guidelines. Peter Fowler, facilitator of the
process, should only include in his Report to the Commissioner of the
Patents and Trademarks Office what the resultant guidelines were and the
level and quality of support they had received.

3. It was clarified that Recommendation number 5 of Peter Fowler's December
1996 Interim Report would be dropped. That recommendation was "That the
Final Report be submitted to Congress by the Working Group on Intellectual
Property Rights at an appropriate time as part of legislative history, so
that it can be referenced in connection with the Copyright Act provisions
on fair use." This would not now take place.

4. It was determined that CONFU--the Framework--would continue beyond this
"final meeting." The framework had produced a certain body of results but
there was a determination to go "all the way" and see if consensus could be
achieved in creating generally acceptable guidelines. A date was set for
another plenary meeting a year ahead (May 19, 1998 at the Mumford Room at
the Library of Congress). An expanded Steering Committee (see Appendix Two)
would be formed to guide the process and determine the role of the 1998
meeting. In the interim, the working groups were encouraged to convene and
discuss further steps. The process and the working groups were encouraged
to be as inclusive as possible.

5. A Report would be published this summer. For those who had withheld
their positions and statements on the guidelines, the deadline was extended
to June 30.

6. The Guidelines (mostly endorsed by a minority of participants) were thus
accepted as interim documents, place-holders. Some advocated testing or
field use of the guidelines so that more concrete data might be gathered on
how fair, useable or burdensome they might prove to be.

7. Except for Multimedia Guidelines. The Consortium of College and
University Media Centers (CCUMC), chief organizer and facilitator of the
Multimedia working group, maintained that these guidelines were fixed and
would not be re-opened for "between 3 and 5 years." From the beginning, the
multimedia guidelines were seen by many as something of a wild child. CCUMC
had begun organizing guidelines before the CONFU process itself had
started; some took issue with the purported inclusivity of the group; and
the organizers had solicited the approval of members of Congress and other
external groups that no other working group had sought. In the words of
John Vaughn, the multimedia guidelines had been artificially reified by an
unprecedented and astonishing media blitz by the proponents.

Although some were figuratively horsewhipped for suggesting that CONFU
itself was confusing and that it had brought with it much unhelpful
political baggage from the IITF era, it seems clear to this writer that
CONFU clearly has been confusing to many and that its continuation or
resurrection under the same name might cause further misunderstanding or
misrepresentation of its authority.

Many within the nonprofit educational and cultural community are now
thinking that it is time to step back and clarify what our community
values are in the arena of production, management and use of intellectual
property. What are some bedrock principles that could serve the nonprofit
community in the place of broadly accepted guidelines? Perhaps now is the
time for the educational community to more actively engage in a national
debate about principles and values as far as the production , management
and use of intellectual property is concerned. Some internal discussion and
agreement might be good for our collective spirit and to foster more
unified collective action when we next engage with the commercial

We should perhaps also consider whether, in the context of upcoming
Congressional action in ratifying the WIPO Copyright Treaty and pursuing
further digital copyright legislation, having attempted to play fair
through CONFU, it is time to reassert Fair Use at the legislative level.

This Report, available in hypertext with appendices, is available at

* * * * * * * * * * * * * * *

Date: Fri, 23 May 1997 17:58:55 -0400
From: David Green <david@cni.org>
Subject: NINCH CONFU Report--Pt Two

May 23, 1997

CONFU CONTINUES? Is it time to re-group?




ORGANIZATION Digital Distance Multimedia
Images Learning

Agency for Instructional Technology -- -- Yes

American Association of
Community Colleges No position No position Yes

American Association
of Law Libraries No Yes No

American Association of Museums Yes -- --

American Association
of State Colleges & Universities No No No

American Council of
Learned Societies No Yes No

American Council on Education No No No

American Historical Association No No No

American Library Association No No No

American Society of Composers
Authors and Performers -- -- --

American Society of Journalists
and Authors No position Yes Yes

American Society of Media
Photographers -- -- Yes

Art Libraries Society of
North America No No No

Association for Educational
Communications and Technology -- -- Yes

Association for Information Media
and Equipment -- -- Yes

Association of American Colleges
and Universities -- -- Yes

Asociation of American Publishers -- -- Yes

Association of American Universities No No No

Association of American University
Presses -- -- Yes

Association of Architecture School
Librarians No -- --

Association of Research Libraries No No No

Broadcast Music, Inc. (BMI) -- -- Yes

College Art Association No No No

Consortium of College and University
Media Centers -- -- Yes

Council of University of Wisconsin
Libraries No No No

Creative Incentive Coalition -- -- Yes

Educational Technology Officers
Association of State University
of New York -- -- Yes

Educational Testing Service -- -- Yes

Houghton Mifflin Company -- -- Yes

Indiana Partnership for
Statewide Education -- No --

Indiana University Institute
for the Study of Intellectual
Property and Education -- -- No

Information Industry Association -- -- Yes

Instructional Telecommunications
Council -- -- Yes

Iowa Association for
Communication Technology -- -- Yes

John Wiley and Sons -- -- Yes

Johns Hopkins University No No No

Maricopa Community Colleges -- -- Yes

McGraw-Hill Companies -- -- Yes

Medical Library Association No No No

Motion Picture Association
of America -- -- Yes

Music Publishers Association -- -- Yes

National Association of College
and University Attorneys No Position No Position No Position

National Association of Regional
Media Centers -- -- Yes

National Association of Schools
of Art & Design -- -- Yes

National Association of Schools
of Dance -- -- Yes

National Association of Schools
of Music -- -- Yes

National Association of State
Universities and Land-Grant Colleges No No No

National Coordinating Committee
for the Promotion of History No No No

National Council of Teachers
of Mathematics Yes Yes Yes

Northern Illinois Learning
Resource Consortium -- -- Yes

OhioLink No No No

Recording Industry Association
of America -- -- Yes

Software Publishers Association -- -- Yes

Sonneck Society for American Music No position Yes No position

Special Libraries Association Yes Yes Yes

Tennessee Board of
Regents Media Consortium -- -- Yes

Time Warner -- -- Yes

Visual Resources Association No No No


Signatories to Letter to Orrin Hatch, 1/13/97, not included in above listing:

American Association of School
Administrators -- -- No

National Association of Elementary
School Principals -- -- No

National Association of Independent
Schools -- -- No

National Association of Secondary
School Principals -- -- No

National Education Association -- -- No

National School Boards Association -- -- No

U.S. Catholic Conference -- -- No




*Chris Dalziel, Instructional Telecommunications Council
Adam Eisgrau, American Library Association
Mary Levering, Copyright Office
*Lisa Livingston, Consortium of College and University Media Centers
*Victor Perlman, American Society of Media Photographers
Carol Risher, Association of American Publishers
Mark Traphagen, Software Publishers Association
*John Vaughn, Association of American Universities

* new members