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COPYRIGHT AND FAIR USE
TOWN MEETINGS 1997-98: Final Report
summary report, Themes in the Town
Art Association in association with the American Council of
Learned Societies and the National Initiative for a Networked
Cultural Heritage, with major support from The Kress Foundation,
organized a series of five "Fair Use Town Meetings" between
February 1997 and February 1998. The meetings grew out of
the Conference on Fair Use (CONFU), addressing the growing
awareness that, as Susan Ball later put it about art faculty
members, there was "woeful, perhaps willful" ignorance on
Fair Use and copyright issues in the community.
town meetings took place at the annual conferences of the
College Art Association (New York, 1997 and Toronto, 1998)
and the American Association of Museums (Atlanta) and on the
campuses of Indiana University-Purdue University in Indianapolis
and Reed College (Portland, Oregon).
started by focusing on the proposed Fair Use Guidelines in
the context of Fair Use and current copyright law. As the
series progressed, the focus shifted more to consider the
future of Fair Use in an increasingly important digital environment.
While the Conference on Fair Use had the strongest presence
for the first meetings, later on in the series the meetings
tended to focus on the broader intellectual property legislative
proposals in Congress.
is one of many forms of reporting and documentation of the
meetings. Several meetings developed websites for publicizing
and reporting the events and for gathering resources. The
papers from the Indianapolis meeting will be published in
a special edition of the Journal of the American Society for
Information Science and papers from the Portland and Toronto
meetings will be published by Gordon & Breach.
gathered and built during the course of the town meetings
helped build the NINCH "Fair Use Education" web resources
and, in turn contributed to the material available for participants
of future Town Meetings. In addition, several sites developed
their own packed resource books for the use of on-site participants.
INDIVIDUAL MEETING REPORTS
York, February 16, 1997
Indianapolis, April 4, 1997
Atlanta, April 27, 1997
Portland, Oregon, Sept 26-27, 1997
Toronto, February, 26, 1998
FAIR USE OF DIGITAL IMAGES
Union/College Art Association
Sunday February 16, 1997
(in order of presentation):
Ball, College Art Association
Barbara English, University of Maryland
Cameron Kitchin, American Association of Museums
Leila Kinney, MIT
Lyndel King, Weisman Art Museum
Nancy Macko, Scripps College
Kenneth Crews, Indiana University
Adam Eisgrau, American Library Association
Ted Feder, Artists Rights Society
Macie Hall, Johns Hopkins University
Geoffrey Samuels, Museum Licensing Collective Development
Annette Weintraub, Artist, City University of New York
Elizabeth Schmidt, Colonial Williamsburg
Kathy Cohen, Art Historian, San Jose State University
of the town meetings was probably the most ambitious and the
most edgy, coming as it did in the middle of the CONFU debates.
It was held at Cooper Union in New York at the tail end of
the 1997 CAA annual conference. Close to one hundred people
attended. Presenters included four lawyers, two art historians,
two museum staff, two artists , an educator, a slide curator,
and a licensing developer:
comprised a legal introduction to copyright and a presentation
of the proposed digital images guidelines, followed by a panel
presenting specific scenarios or predicaments (the art historian,
museum director and artist). After lunch a very large panel
reviewed a variety of general topics (educating communities
about copyright; liability issues; artists rights, the copy
photography issue and an introduction to site licensing) followed
by a panel discussing use of the Web by an artist, art historian
and museum staffer.
to Copyright Law and Proposed Guidelines on Digital Images
English opened by giving a broad introduction to current
US copyright law as it applies to visual images, leading up
to Fair Use and the four-factor analysis. She emphasized that
it wasn't who you are but what you do with material that determines
whether a use is Fair Use and recommended caution and prudence,
emphasizing the openness and ambiguity of the four-factor
analysis. Ms. English was virtually besieged by a wide range
of general questions, submitted at first as written questions,
vetted and organized by the moderators.
the outline of the general statute came a presentation of
the Proposal for Educational Fair Use Guidelines for Digital
Images by the AAM's Cameron Kitchen, who navigated
through the guidelines' basic structure. Questions covered
both the history of the guidelines and the composition of
those most closely involved in the two-year process as well
as very specific questions about why certain provisions were
the way they were. This session could easily have doubled
in length given the battery of questions that followed it.
Pat Williams reminded panelists that this was a highly wrought
and negotiated document and that many passages had quite complicated
the panel on specific predicaments, art historian Leila
Kinney, from MIT, speculated chiefly on the relations
of "original" artworks to their different forms of reproductions
raised by digitally networked images. She was interested in
taking the issues raised by Walter Benjamin and later by John
Berger into the legal dimension by reconsidering the terms
"original," "derivative work", "copy" akin to the way the
"Manifesto Concerning the Legal Protection of Computer Programs"
had done" (94 Columbia Law Review 2318). She questioned whether
it was socially desirable to have layer upon layer of rights,
and permissions to negotiate in every sector of the use of
images. She hoped that there might be a space in which people
with very different interests in using digital imagery might
be able to forge a new consensus about providing for a depository
system for high-quality images in the public domain that would
be easily accessible online.
Museum director, Lyndel King presented the practical
concerns of museums in the intellectual property debate. Aware
of all sides of copyright debate she was alsoincreasingly
aware of the need to carry over the care of their collection
into the digital world: a space many museum people felt was
like the Wild West with few fences and sheriffs. Just as the
storage and care of collections isn't free, many curators
and directors feel that use of such collections can't be free.
There was doubt and worry about whether campus networks were
secure and whether site licensing was or was not the way forward.
There were long-term implications for museums' ability to
preserve images and protect collections if their images could
easily be downloaded and used in ways museums have no knowledge
of, and earn no revenue from. "If we lose control of the use
of our collection, do we lose the means to use our collection
as an asset to help preserve it?" (See Lyndel King's article,
"The Fair Use Dilemma," in the July/August 1997 issue of Museum
and teacher Nancy Macko felt strongly that the guidelines
did not include the voices, concerns or needs of artists.
Artists were like others conflicted in their simultaneous
desire for unlimited access and strong protection of their
own work: this paradox lies at the heart of education and
artistic production. She felt there were parallels between
artists' and museums' attitudes to their work. Just as artists
often gave away slides of their work to writers, researchers
and slide librarians, Macko expected that museums should charge
minimal fees for the educational use of images.
Issues and Topics
(and director of the Copyright
Management Center at Indiana University) Kenneth Crews
opened the large after-lunch panel presenting a range of copyright-related
issues by speaking about his approach to teaching and advising
on copyright issues and especially fair use questions at Indiana's
Copyright Center. Granting that staff wanted practical solutions,
not copyright lectures, he tried to help them find their own
solutions rather than to rely on meticulous, and often alien
standards and guidelines delivered from outside their experience.
Crews found the detail and the approach of the digital images
guidelines unhelpful and intrusive.
Counsel for the American
Library Association's Washington Office, Adam Eisgrau,
in speaking about liability issues in copyright law stressed
that copyright was not at core about economic issues but rather
about encouraging the progress of "science and the useful
arts" in the nation. The digital images guidelines in ALA's
view were premature and could well force institutions
into situations in which they might be liable. Legal counsel
and educators should be able to offer some guidance at a time
when too much was in flux, while new market models and new
public sector models of providing service and information
were evolving. Eisgrau's advice was to think critically, be
willing to sacrifice detailed guidance on Fair Use issues
in order to avoid the imposition of draconian Guidelines and
to work together on new legislation.
Feder from the Artists Rights Society spoke about the
work of the society, its concern for artists' moral rights
and re-emphasized many of Nancy Macko's points about the artist's
place in the economy of ideas.
curator Macie Hall gave a detailed and commanding presentation
about how the digital images guidelines were essentially created
to solve the problems of slide curators but, due to the fears
and power of copyright owners, the resultant guidelines were
unworkable and seemed mostly geared to protecting the potential
future profits of publishers, rather than protecting the educational
constituency they were meant to serve. Macie informed her
presentation throughout with a history of the longstanding
practice of copy photography for educational use, which has
suddenly been re-examined by commercial publishers and now
considered by them to be virtually illegal. Macie also gave
examples of the time taken to gain permission for use of images
(It took her two years to gain permission for the use of 300
images for a book; a given art history class consumes 2,000
images a semester, which would thus take 14 years to obtain
model of obtaining quality digital material was presented
by Geoff Samuels, developer of the Museum
Digital Licensing Collective. The educational site licensing
model would enable museums to contribute digitized works to
a collective which would then license collections of slides
to universities, allowing a broader range of uses of very
high quality, fully documented images for a low fee determined
by cost-recovery principles. The Museum
Educational Site Licensing Project was closing its two-year
investigation into what the essential terms and conditions
were that should be considered by both parties to a license.
Two projects in this community, AMICO,
run by the Association of Art Museum Directors, and the Museum
Digital Licensing Collective were using the work of MESL
in developing their licensing schemes.
in the question period focused on the time limits to copyright
protection, some discussion about licensing issues, a statement
by Adam Eisgrau that museums and libraries were essentially
at the same place, in the same position in the copyright landscape--knowledge-based
non-profits trying to strike a balance in copyright negotiations,
and a plea from the audience that what many artists and institutions
needed was specific guidance on the use of the Web, which
the Digital Images Guidelines did not give.
Uses of the Web
plea was partially met in the last session of the day as it
brought together an artist, a museum director and an art historian
to talk about web issues. Actually they mostly characterized
their use of the Web, though a few issues emerged.
and teacher Annette Weintraub, working with digital
images since 1984 was impressed by the chameleon like character
of the Web--its different functions and characteristics some
of which were at odds with one another. She shared the paradoxical
experience of wanting total access to others' materials yet
also total control of her own work. However, she realized
that control is illusory. She has been most impressed by the
way the Web allows direct interaction with audiences--her
piece on ArtNetWeb was quickly listed as a "cool site of the
day" and email poured in from all over the world. Tremendous
sense of contact from a different kind of audience. This inspired
her to make new communication-oriented pieces.
Cohen, an art historian at San Jose State University spoke
about her extraordinary range of experiments, mostly in teaching
using digital imagery on and off the Web. There were, she
said, enormous possibilities, especially using distance learning,
even though current technology had to be negotiated. Her position
was that so much was in flux that one should not sign on to
any guidelines at present. Indeed her work would be affected
by all proposed CONFU guidelines and it was often confusing
which one would apply at any time. She recommended writing
our own guidelines--echoing Kenny Crews philosophy.
Elizabeth Schmidt, from Colonial Williamsburg, described
this large living history museum and its website. Williamsburg's
several hundred acres of antiques with 88 Colonial buildings
were matched by its intellectual assets including 750,000
images; 50 years of films; scripts, curricula, archeological
research that are now being turned to use on the Web. Fortunately,
Williamsburg has no copyright problems and has been actively
engaged with distance learning, combining the synchronicity
of TV with asynchronous Web and listserv experiences. [Note:
Since this meeting, the Williamsburg website has been reorganized;
but see the copyright statement at http://www.history.org/cwf/aboutcwf.htm]
time for our meeting seemed to come to an abrupt end and,
as the hall had to be vacated by 4:30pm, the meeting concluded,
with many conversations spilling out into Cooper Square.
FAIR USE, EDUCATION AND LIBRARIES: A TOWN MEETING TO EXAMINE
THE CONFERENCE ON FAIR USE
University Institute for the Study of Intellectual Property
and Education, Indiana University Purdue University at Indianapolis
Friday April 4, 1997
TOWN MEETING WEB SITE
town meeting was organized by Kenny Crews at Indiana University
in Indianapolis. It specifically did not address the digital
image guidelines and was focused more on the impact of the
CONFU guidelines in general on education and libraries. The
proceedings of this meeting will be published in a forthcoming
issue of the Journal of the American
Society for Information Science.
(in order of presentation)
Crews, Indiana University
Mary Levering, Library of Congress
Kenneth Frazier, University of Wisconsin
Lolly Gasaway, University of North Carolina
Joann Stevens, Association of American Colleges and Universities
Christine Sundt, University of Oregon
Colin Day, University of Michigan Press
Peter Jaszi, American University
Georgia Harper, University of Texas.
town meeting was organized by Kenny Crews at Indiana University,
Indianapolis. It specifically did not address the digital
image guidelines and was focused more on the impact of the
CONFU guidelines in general on education and libraries. The
proceedings of this meeting will be published in a forthcoming
issue of the Journal of the American Society for Information
was divided into four sessions: "Are Fair Use Guidelines Right
for the Academic Community?" divided into pro- and con- presentations;
"Fair Use for Teaching and Learning"--presentations on distance
learning and multimedia guidelines with perspectives from
librarians, educators and scholarly publishers; "Library Issues,"
with presentations on the Interlibrary Loans and Electronic
Reserves Guidelines, with a Scholarly Publishing perspective
on both; and finally "Where Do We Go From Here?"--a look at
political and practical options.
had a number of particular assets: Kenny
Crews himself, a wonderfully effective theatrical and
educational presence; a preceding half-day introduction to
basic copyright issues, masterminded by Mr. Crews, and a voluminously
inclusive conference loose-leaf book, packed with reference
Fair Use Guidelines Right for the Academic Community?
introductions, the day began with the rhetorical pros and
cons on guidelines from Mary Levering (US Copyright Office)
and Ken Frazier (Librarian of the University of Wisconsin).
Levering presented the CONFU guidelines as essential
reminders, helping users to interpret the law; veritable "Hints
from Heloise" that could help navigate the thickets of copyright.
She urged the audience to accept the guidelines as provisional,
temporary documents that, although they might soon need superseding,
contained essentially good advice. Ken
Frazier declared that although he was not against
guidelines per se he was against institutional adoption of
guidelines. If it was just advice one needed one didn't need
institutional adoption. Already he could see classroom guidelines
being used to limit fair use. It seemed these guidelines were
being produced far too soon. As a librarian dealing with exorbitant
costs of information (which the guidelines don't recognize)
he understood the complaints against publishing monopolies
that gave rise to the 18th century Statute of Anne: "They
take our learning and charge whatever price their avarice
demands." The 20th-Century agenda seemed very parallel, given
statements from the Association of American Publishers, the
White Paper on Intellectual Property and the language proposed
for the WIPO Treaty: fair use is being made out to be irrelevant
to 'normal publishing.'
Use for Teaching and Learning
session presented distance learning and multimedia guidelines.
Gasaway spoke on the hurdle that the Distance Learning
Guidelines faced with section
110 of the copyright law itemizing the materials that
could and could not be transmitted. These guidelines were
very limited in that they only dealt with synchronous transmission
of material: the decision was to revisit guidelines in a period
of between 3 and 5 years for consideration of asynchronous
transmission (which is essentially what web-based distance
learning will depend upon). Joanne Stevens presented the Multimedia
Guidelines: her essential point was that as multimedia digital
productions were so complex and used so much material, there
had to be a way to work around the labyrinthine permissions
process. She believed that the guidelines were a very workable
solution to an almost intractable problem.
perspectives were Christine
Sundt, Slide Librarian at the University of Oregon,
and Colin Day, director of the University of Michigan
Press. Sundt's paper, The
CONFU Digital Image and Multimedia Guidelines: The Consequences
for Libraries and Educators, included a compelling account
of the history of the issue of the reproduction of visual
materials in educational settings--a complementary account
to Macie Hall's presentation in New York. Briefly, she felt
that the burdens imposed by the guidelines, specifically those
of the digital images guidelines, essentially made them unworkable--especially
with the insistence on slide librarians seeking permissions
for material that most practitioners felt were being used
fairly. Sundt strongly recommended the community producing
its own "guides to good practice" perhaps based on the work
that has gone into the guidelines. Colin Day felt he needed
to make the case that university publishers were very much
embedded in the university structure and should not be regarded
as the enemy. A process of professionalization of university
presses had made them a medium or intermediary between universities
and commercial publishers.
Issues/Where Do We Go From Here?"
presentation of where librarians felt they were with the Inter-Library
loan and Electronic Reserves CONFU working groups, which did
not produce guidelines, the conference proceeded to the larger
issues of political and practical next steps. Peter
Jaszi, Professor of Law at American University gave
a sweeping sense of recent international and domestic developments
in copyright legislation. Jaszi is a key player in the activities
of the Digital Future Coalition,
an ad hoc coalition of some thirty organizations committed
to continuing the current balance between rights holders and
users in copyright law in any new intellectual property legislation.
After the effective blockage of last year's legislation and
the volte face by the World
Intellectual Property Organization, Congressional staff
now understand the DFC position on the importance of balance
and the continuation of educational fair use and exemptions.
Now was not the time to negotiate but to be eloquent in the
insistence of fair use as the community's birth right. Jaszi
reminded us of related issues of term extension;
the database protection
code revision especially its language on shrinkwrap licensing.
Harper, legal advisor at University of Texas, spoke
on practical steps she was taking to inform faculty and administration
about their copyright responsibilities--see her presentation
online. This included educating university members both
about intellectual property assets they themselves own as
well as about what was allowable under fair use. Perhaps the
single most important act any institution could engage in
was to formulate both intellectual property management principles
as well as a management policy: one that addressed use of
others' works involving fair use and licensing and copyright
ownership and management, so that the university could protect
and exploit works its members helped to create. It was increasingly
important to remember that copyright was a two-way street.
FAIR USE OF DIGITAL IMAGES
Association of Museums Conference
Sunday, April 27, 1997
(in order of presentation)
Bennett, Vice President, ACLS
Suzanne Quigley, Head Registrar, Guggenheim Museum, New York
Christie Stephenson, Museum Educational Site Licensing Project
Stephen Weil, Center for Museum Studies, Smithsonian Institution
Mary Levering, Copyright Office
meeting was held in two parts as two sessions during the AAM
Annual Conference in Atlanta. The audience here was again
different: principally museum staffers and those who were
on the whole more concerned with the perspectives of copyright
holders. However the importance of Fair Use was stressed throughout
the sessions. The first 75-minute session consisted of a panel
of six speakers presenting aspects of the Fair Use debate.
This was followed by an open 90-minute town meeting in which
the panelists fielded comments and questions from an audience
of some 50 participants.
opened the session by introducing copyright law as an architecture
of balance between the rights of copyright holders and the
interests of users of copyrighted material. He reviewed the
factor analysis of whether any particular use of copyrighted
materials without permission was fair use.
the movement of copyright into the digital environment Bennett
emphasized two sets of worries consuming copyright owners
and users: one was the fear of millions of digitally pirated
copies of copyrighted works appearing on the Internet; the
other was the fear of a pay-per-view despot in which all property
was locked up behind licenses.
a brief account of the history of the NII Task Force and the
progress of the Green Paper and White
Paper, Bennett gave a synopsis of the Conference
on Fair Use and outlined the Digital
then broadly analyzed the structure and concerns of the Guidelines.
First he noted there were three important distinctions:
the behavior of individuals v institutions;
regular digitization programs and spontaneous digitization
of material by teachers before a class; and
digital images acquired from now on versus the digitization
of an institution's store of analog images.
finally noted two special issues germane to digital imagery:
of the use of whole images v. portions of images (whole images
generally need to be quoted or used, whereas only small parts
of a text work are normally quoted in fair use); and
b) the copyright status of copy photography: whether a photograph
of a copyrighted work was itself copyrightable.
Stephen Weil, Center for Museum Studies, Smithsonian Institution
presented the current copyright debate as one more about the
control of intellectual property than economics. He cited
his experience while at New York's Marlborough Galleries of
William Rubin's request for the use of an image of a Jackson
Pollock painting in a forthcoming critical article. Pollock
denied the request and Rubin was only able to publish the
image by finding a photograph of the painting not controlled
by Pollock: so fair use stands between the control of a work
by its owner and the use of an image of the work for critical
or educational use.
Bennett's point about the difference between text (the predominant
concern of copyright law) and imagery. Images cannot be paraphrased
or abbreviated in the way that text can (you need the whole
work); and museums, to do their work, need to be able to reproduce
visual images in very many different ways. Weil saw the current
CONFU Guidelines as substantially undermining fair use and
cited the White Paper's reference to fair use as an anachronism
with no role in the National Information Infrastructure. It
was, he felt, a provision that was seen to interfere with
the smooth functioning of the NII, as envisioned by the Dept.
of Commerce: a world of licensing and micropayments.
spoke as a registrar of contemporary art and expressed her
general dismay that few museum directors and registrars had
read or were acquainted with the CONFU Guidelines. She reported
on her own informal telephone survey of how her peers at other
institutions used or were preparing to use digital images.
The results showed a general ignorance of many of the issues
or implications of the new environment. She noted that several
museums are increasingly asking for the digital reproduction
permission for works that they borrow for exhibitions and
often the lenders do not understand the implications.
Stephenson introduced the Museum
Educational Site Licensing Project (MESL) as a way of
showing how the licensing model can fit into a package of
the delivery and use of visual images in a digital environment
alongside fair use. MESL has, for the last two years, worked
museums and seven educational institutions to determine
the practical mechanisms for delivering quality digital images
for use on campus networks. The economic model is that of
cost recovery, in which a modest income stream can help museums
continue with the digitizing of their works.
of establishing an educational site license for universities
provision of a clear environment for the use of digital
ability to ease the administrative burdens of rights clearance;
creation of a relationship between owners and users that
can be used as a platform for ongoing dialog between the
that MESL's work applies to is only that of the museum and
educational communities and their shared values.These values
predominant common interest in providing access to cultural
acknowledgment that education is a critical part of the
mission of museums and universities; and
desire to facilitate access while acknowledging curatorial
model recommended by MESL would have no intention of limiting
"fair use" and indeed would clearly enable users to go beyond
fair use (for example it would give users the rights to download
and print and copy material and allow the manipulation of
copied images). Ms. Stephenson noted that, as a librarian,
she could personally endorse this as a pragmatic response
to the issues of the protection and educational use of digital
materials. Licensing is not the only answer but it should
be included as part of the overall picture.
concluded with the thought that in this kind of licensing
transaction and relationship, Esther Dyson's formulation of
"intellectual value" seemed more relevant and useful a concept
than the usual one of regarding images and their use as "intellectual
property." Such value adhered in the aggregation of content
from multiple sources; in the collection of authoritative
data; and in the ability to use sophisticated searching mechanisms
and other value-added services.
spoke to her commitment to copyright law, fair use and the
process of CONFU, addressed the question of why we need Guidelines
and why we need them now.
(National Commission on New Technological Uses of Copyrighted
Works) experience at the time of the 1976 revision of the
copyright law, which is when fair use was first embedded in
statute law in section 107--principally in the form of the
4-factor analysis. She spoke to the pressures at the time
to go beyond the four factors and be more specific but that,
as vague as they are, they are proving a good bedrock.
referred to a survey conducted by Kenny
Crews of university policies and guiding principles about
copyright and his discovery that most university counsels
are overly conservative in interpreting fair use and thus
overlook their own interests. Guidelines can help in this
process and give back one's fair use rights.
emphasized that the negotiation process is at the vital center
of the CONFU Guidelines and thus, even though they are far
from perfect, they are "somewhat workable." The risks are
far greater now than they were in 1976, with rightsholders
even more nervous about the loss of revenue. But her experience
as part of CONFU spoke to the need on both sides to continue
the dialog engaged upon in CONFU in another format. What was
needed was a willingness to put the current guidelines to
the practical test in the changing technological landscape
and then re-visit these guidelines in the future: perhaps
in as little as 2 years time.
especially to emphasize that the guidelines were not law;
that Fair Use exists beyond the guidelines and that the guidelines
do not and could not limit fair use. She pointed to the need
for different sets of guidelines to address the different
uses and risks in the different areas of digital images, multimedia
and distance learning. The general preamble clearly stated
that the recommendations of one set of guidelines did not
necessarily apply to another area of work.
are needed now, she stressed because thousands of teachers
are desperate for help in interpreting the 4 factors; the
guidelines make the interpretation of the four factors much
clearer and enable practical use of copyrighted material.
One could see the Guidelines as a kind of "Hints from Heloise".
ended by quoting from a D-Lib
article by Sarah Sully on JSTOR.
Recalling the difficult negotiations between publishers and
libraries over whether print-outs from the digital versions
of JSTOR journals could be sent to other non-subscribing libraries
via Inter-Library Loan, Sully wrote, "We had to propose some
compromise or neither side would have been willing to work
with us. With the help of friendly hard-liners from each camp,
we molded and negotiated a clause that offers something to
both sides." This is the spirit of CONFU and Ms. Levering
recommended that the broad community treat the CONFU Guidelines
the way that JSTOR managed to bring libraries and publishers
together to practically test a negotiated agreement.
up, Mr. Bennett noted that we were in a particular copyright
predicament. That we were concerned especially with the educational
interpretation of copyright law in the digital environment.
The draft CONFU guidelines were now available and would be
finalized at the CONFU meeting on May 19.
Question, as he put it, was: "how do we live together in the
digital environmen?." Educational site licensing is one way
to go ahead, it is part of an overall digital package, but
there is still fair use beyond the conditions of any license.
Bennett noted Mr. Weil's impassioned plea for the vital center
of fair use to be held and to be exercised and Ms. Quigley's
complaint about the complicated, cumbersome nature of the
guidelines. But finally, as Mary Levering reminds us, we do
still need some guidance and perhaps we should first test
the guidelines, continue the dialog and produce further guidelines
in the not too distant future.
the afternoon's discussion, Mr. Weil spoke more on his sense
of the erosion of fair use and that there were two notions
of fair use: as a limitation on copyright and as an extension
of copyright for public use. This second understanding was
contested by Mary Levering. Weil's contention that a postcard
reproduction of a painting was essentially a different work
was contested by Howard Besser who held that in such a case
it was useful to consider the different levels and different
forms in which an image could exist under copyright, without
a particular version being a "transformative" version.
question about whether a museum that knows it does not own
the copyright to images in its possession should post the
works on a public web page, the answer was that although images
could be digitized for internal use and on an Intranet, they
should not be published on the Web. Weil reminded the audience
that the vast majority of works owned by museums were in the
public domain and could thus be published--though this would
generally not be true of contemporary art museums.
Learning was noted as an area of potentially enormous growth
that may drive a new section of revised copyright law.
piracy issue and the fact that international piracy was more
of an issue than domestic piracy: Howard Besser pointed out
that the market argument was fallacious--the millions of people
buying cheap pirated copies of works would not pay standard
prices. Bennett noted that although individual countries might
have weak copyright protection, the
Treaty, dealing with digital copyright would help in this
regard. Bennett also emphasized that the WIPO Treaty gave
much added weight to fair use and other limitations to copyright.
of continuing to vigorously exercise and experiment with fair
use was mentioned, emphasizing Mary Levering's point in the
morning that the CONFU Guidelines gave one a certain level
of security that was generally much higher than university
general counsels would offer.
Suzanne Quigley's dismay that few museum directors and registrar's
had read the CONFU Guidelines, Weil emphasized his position
that the Guidelines did not adequately answer the concerns
of museums. He felt that commercial interests and universities
were represented much more than museums. David Green suggested
that perhaps AAM might consider drawing up an internal document
of principles or recommended policies for museums' use of
digital intellectual property, along the lines of the
Humanities Alliance's "Basic Principles."
spoke again to the need for a continued dialog beyond CONFU,
although what the formal avenues would be were unclear.
closed by emphasizing the need for CONFU to come to closure
so that Congress can consider its final recommendations and
include it in legislative history.
LAW IN THE DIGITAL WORLD:
FAIR USE, EDUCATION AND LIBRARIES AFTER CONFU
on and incorporating the report by Jessica Tagliaferro, College
College, Portland, Oregon
Friday-Saturday, September 26-27, 1997
TOWN MEETING WEBSITE
(in order of presentation)
D. Crews, Indiana University
Robert Baron, Museum Consultant
Elaine Koss, College Art Association
Georgia Harper, University of Texas
Mike Holcomb, University of Oregon New Media Center.
J. Q. Johnson, University of Oregon
Penny Hazelton, University of Washington
Gerald Barnett, Office of Technology Transfer, University
Maryly Snow, University of California Berkeley Slide Librarian.
Mary Levering, US Copyright Office
Chrysanne Lowe, Academic Press.
Kenneth Crews: "Copyright Law and the University Mission."
did in Indianapolis, Kenny Crews, Director of the Copyright
Management Center at Indiana University gave a half-day workshop
on basic copyright and Fair Use issues addressed to the education
and library communities.
the audience that the academic community has vested interests
on both sides of the copyright debate, being creators, owners
and users of intellectual property. Growing concern about
copyright issues has always coincided with advances in technology
and publishers have been particularly concerned about the
proliferation of materials within educational institutions
since photocopying and VCR machines were introduced. The 1976
revision of the copyright law, which codified the photocopying
of materials, has not been extended to cover digital materials.
indicated that the Copyright Act covers such a high volume
of "creative" material that there was much room for interpretation,
which brought with it advantages and disadvantages. For instance,
the rights belonging to the owner/creator of a work include:
reproduction, distribution, derivative works, public performance
and display, and moral rights (protection of works of visual
art only produced in small quantities). These terms make the
mere acts of reproducing a copyrighted comic strip, putting
it on an overhead projector and reading the caption to an
audience, technical infringements. Furthermore, Crews discussed
the vague nature of these terms, especially in a technological
age. (What is a reproduction? What is a derivative? Is a slide
of an artwork a derivative, a reproduction, or an original,
independent work eligible for copyright protection by the
with a discussion of each of the exceptions to the rightsholders'
domain. These included "Fair Use" (Section 107 of Copyright
Law), library copying (Sec. 108), the "first sale" doctrine,
performances and displays (Sec. 110, 1-2) (face-to-face teaching,
distance learning, and computer software (Sec. 117).
cautioned that simply giving credit to the author of material
one used was not a sufficient Fair Use defense. Neither was
the fact that a use was by a nonprofit or educational institution
sufficient defense; commercial enterprises may also make "Fair
Use" of materials. He further warned that while the definition
of "Fair Use" was traditionally left up to educators and librarians
to interpret, the proposed CONFU guidelines were not the law.
Crews gave the example of the Kinko's decision (Basic Books,
Inc. vs. Kinko's Graphics Corp., 1991), in which the Supreme
Court concluded that photocopying by a for-profit business
for classroom use does not meet Fair Use requirements.
day of the Portland meeting was divided into four sessions:
Facing the Challenge; Users' Perspectives; Working with the
Guidelines; and an Open Forum. There were roughly seventy-five
people in attendance, including speakers, moderators, and
sponsors. After Elaine Koss and Georgia Harper made their
welcoming remarks, questions ensued, mostly about the status
of the CONFU Guidelines.
1: Facing the Challenge
Robert Baron, "The Challenge to Education"
Baron asked educators and administrators to rise to the challenge
to democratize information retrieval. He asked whether or
not the fundamental goals of education had really changed
in light of the advances in technology. He asserted that in
order to preserve educational culture, we must continue to
protect what was considered most valuable about education
in the past.
years ago, he said, scholars had the right and the freedom
to pursue a pure scholarly mission. Scholars' and educators'
activities were separate from politics and the commercial
world. Education did not, as it sometimes does now, bow to
the"lowest common denominator."
used several examples to illustrate what he sees as the clash
between academia and the marketplace. Baron bemoaned the "industrialization"
of education characterized by, among other things, the prevalence
of business jargon surrounding the education profession. He
harkened to the "spiritual ownership" that scholars traditionally
had over their material. He used the analogy of colonialists
staking out land to illustrate the ways commercial enterprises
are increasingly staking out educational products, art objects,
Baron called on educators to embrace technology but to preserve
an educational legacy.
Mike Holcomb "The Challenge to Rightsholders,"
Media Center Program at the University of Oregon is a consortium
of new media and software businesses worldwide. The center
pairs industry (professional multimedia developers) with subject
matter specialists in order to create various instructional
materials. Mike Holcomb outlined the program's mission to
play a definitive role in the future environment of higher
education. He indicated that the center often relies on the
"Fair Use" doctrine when dealing with the dissemination of
challenged universities to expand their position as rightsholders
and to empower faculty to find new outlets for their work
as well as new resources from which to produce. He also challenged
scholars to work more collaboratively to create new media
projects. Holcomb emphasized that universities have roles
as rightsholders not just as users. He said that universities
must engage in the game before industry buys intellectual
property out from under them.
J. Q. Johnson "The Challenge to Libraries,"
outlined the "delicate balance" of interests among libraries,
copyright holders, and the creators and users of digital technology.
The digital age is an era when pre-existing understandings,
such as Fair Use copying in libraries, are being challenged.
indicated that CONFU is a "dead" construct and called on his
colleagues to start looking for alternatives. Because the
digital world is rapidly developing, no one can predict what
will happen in the near future. In order to cope with the
current atmosphere, one must: 1) tolerate uncertainty; 2)
take a risk management approach; 3) protect one's own intellectual
property; 4) study contract law; 5) start lobbying more aggressively.
When considering applying the "Fair Use" defense to use of
copyrighted material, Johnson suggested applying the following
tests when considering "Fair Use": 1) "What's legal?" 2) "What's
fair?" and 3) "How do we avoid getting sued?"
suggested that the market be allowed to play itself out before
legislation is created to govern these new mediums.
if faculty were paid to contribute work to the New Media Center,
Holcomb answered that they volunteer but indicated that it
operated much like a commercial publishing enterprise within
the university system.
ensued on the "professionalization" of the scholarly community.
Holcomb thought this had already happened and that it was
now a matter of the institutions gaining control of their
faculty's productions. (He gave the example of software project
was the idea of the "social good," particularly the blurred
lines between scholars and the commercial world.
II: User's Perspective
Penny Hazelton, "Electronic Reserves,"
course reserves provide short-term and high-volume access
to material. They are more ephemeral than handouts and course
packs, and therefore keep to the spirit of copyright. Use
of reserves has increased since the Kinko's case. For instance,
the highest percentage of circulation transactions at the
University of Washington library is in reserve materials.
asserted that there is a need to find a more effective way
to disseminate materials. She indicated that while electronic
reserves will not save time or money, they will improve access
to materials for student and faculty. She then discussed the
advantages and disadvantages of this medium. Does this version
look more like a course pack? (This would present the same
difficulties as the Kinko's situation.) Another difficulty
is that electronic reserves may only give students the opportunity
to read material secondhand, compiled by faculty or library
staff. This makes libraries more vulnerable to accusations
of copyright infringement. Hazelton also warned that one should
not make the assumption that every student has the technological
literacy or the resources necessary to access electronic reserves.
the Northwestern University password-protected, electronic
reserve website as one of the best models, <www.library.nwu.edu/ERS/about/copyright.html>,
a site that is uniformly controlled and operated. Hazelton
asked how much of a role university libraries want to play
in the creation and governance of faculty websites.
Gerald Barnett, "Distance Learning,"
Barnett discussed how to share and disseminate materials for
the purposes of distance learning without violating copyright.
He touted distance learning as one way to use technology more
effectively, as it can extend the classroom, simulate the
classroom, or provide greater access to reference materials.
and contrasted the standard classroom model established around
the turn of the century with the emerging "Digital Media"
model, brought about by the technological dissemination of
information. He indicated that this new model needs collective
action in creating materials, continuous effort to update
and support projects, innovative institutional services, active
deployment of curriculum, and investment by institutions.
He also discussed how the emerging model is also characterized
by convergences in academic enterprises.
has difficulty accepting the Fair Use guidelines, which he
viewed assuming the outdated classroom model. He called for
new types of guidelines that could accommodate systematic
use of instructional materials, withstand license-based markets,
define the limits of "market rights," and emphasize and promote
Maryly Snow: "Digital Images"
Snow discussed the use of images in image databases on the
World Wide Web. The project that she is involved with, SPIRO,
provides a database of image thumbnails and information on
how to obtain the image for instructional use.
that "thumbnails" and "vignettes" of artworks are too small
and of such low resolution that there is nothing to steal
or misappropriate; thumbnails are solely for reference use.
She cites other websites that are examples of "Fair Use,"
sites that do not violate the Fair Use four factors. These
include the Art ImageBase of the Fine Arts Museum of San Francisco
and Vincent van Gogh Information Gallery. She provided a demonstration
on how to use these sites.
the creation and continued use of these educational sites
as one way to combat the commercialization of the Internet
and the "commodification of information."
about the financial value of putting an image online, Snow
replied that she would refuse to pay $10 for a low resolution
picture on principle. A discussion ensued on the problem of
rightsholders (i.e., private owners, museums) attempting to
acquire fees unfairly or inflating costs.
distinguished between museums protecting their interests as
rightsholders when charging fees for the use of photographs
of their holdings and contemporary artists trying to protect
their rights over their own work.
suggested that many rightsholders had not recognized the economic
value of educators putting their images into service.
Sundt pointed out that, not too long ago, museums were not
interested in these copyright issues and were more interested
in their tax interests. Charles Rhyne concurred by testifying
to the recalcitrance of many museum officials.
warned that the guidelines are not the law, and strict adherence
to them could be detrimental. She advised taking a liberal
approach, assuming permission, where possible.
admonished publishers for not mobilizing to come up with alternatives
ways of providing materials for educational purposes. He indicated
that many of them have not caught up with the technology.
III: Working with the Guidelines
Georgia Harper, "CONFU: The Big Picture"
Harper, Attorney with the Intellectual Property Section of
the University of Texas System, introduced what she called
a "Good Faith Fair Use" policy. She reported that "Fair Use"
is still the best defense against challenges from rightsholders
and maintained that the CONFU guidelines, while thorough and
precise, are not distilled enough for the user; they should
rather serve as a starting point.
also cautioned that these issues can't be ignored by university
administrations and counsel as they have been in the past.
Scholars are now rightsholders as well, and she doesn't see
universities giving that point enough attention.
Mary Levering, "Trying out the Guidelines"
agreed that the CONFU guidelines, as they now stand, aren't
"perfect," but she believed they help to maintain balance
between rightsholders and users.
argued that with the move to the digitization of images--where
most questions about Fair Use arise--guidelines can give users
confidence to make decisions, not conclusive answers. She
emphasized that each situation is unique, and must be looked
at individually. The preamble to the CONFU guidelines stated
that the guidelines are not conclusive, that they do not cover
all situations for Fair Use. Levering said that users may
go beyond these guidelines. Staying within the guidelines
puts one on stable ground.
reported that at the April town meeting in Atlanta, three
representatives of major rightsholder organizations (university
publishers) declared that the guidelines are indeed a safe
harbor. Levering has seen publishers and other rightsholders
warming up to the guidelines over the course of the three
years since CONFU was first begun.
advised the audience to "get some real life experience," to
become able to provide empirical examples and not just rhetoric.
This will strengthen the skills one needs to inform and convince
detractors. Levering petitions librarians and administrators
to try working with the guidelines for now.
Baron responded by asserting that even a temporary adoption
of the guidelines was inadvisable. As they would turn educators
into "captured clients" of image disseminators. Baron believed
that there was a fundamental problem with setting up Fair
Use law by setting scholars on a par with commercial users.
Indeed, he felt that the CONFU guidelines would stifle productivity
and creativity in education and scholarly work. Imposing the
requirement that users obtain permission only fuels the practice
of collections retaliating against users who have used print
images in the past on good faith. Baron felt that it would
also force users to give up using preexisting images, forcing
them to commission new reproductions.
further suggested that the guidelines insist that the user
examine the "potential" for economic gain of the material.
He feels it is ideologically wrong to force a scholar to participate
in economic enterprise in this way.
Chrysanne Lowe, "Licensing and other Initiatives"
on the challenges of managing and delivering electronic journals
and gave a presentation on several of the projects, online
journals and databases, that Academic Press has developed.
to several complaints about the expense of academic journal
subscriptions (as well as the seemingly random pricing scale)
from librarians in the audience, Lowe responded that Academic
Press is creating a consortium in which institutions without
subscriptions can join and pay a relatively small fee to use
all these materials through Inter-Library Loan. The question
was also posed as to why electronic publishing should be more
difficult or expensive. Lowe responded that storage space
and transition costs have been extensive for Academic Press
to which an audience member retorted by asking why libraries
should pay for publishers' development costs?
opened with questions about how to get faculty and university
administration interested in copyright issues and how to get
administrations interested in adopting guidelines. Some attendees
indicated that they had taken steps to encourage endorsement
of guidelines at their own institutions.
made a plea for active advocacy among librarians, administrators,
and faculty. She said that creation of multimedia materials
sparks faculty interest in copyright law more than any other
issue, and suggested that this be used as an entry point for
called on everyone to read and know the guidelines in order
to raise energy levels among colleagues.
frustration was expressed that librarians were being forced
to make legal decisions. Legal counsel at universities have
little time to deal with the murky issues of intellectual
property, and they tend to get put aside. Harper emphasized
that lawyers with little experience with the guidelines will
tend to make them the maximum rather than the minimum requirement.
Another attendee cautioned that counsel may be of very little
help: "They tend not to know any more than you do--lawyers
are loathe to decide on these issues." Some universities are
considering the creation of a "Copyright Officer."
Is anything going on at NACUA on these issues? Have they addressed
guidelines? Harper replied that they have wavered and won't
take a position and urged the Visual resources Association
and librarians to mobilize.
Is there a foundation or a society that is willing to fund
the study of the effect of the implementation of these guidelines?
Levering said she has investigated this. She cited the MESL-Getty
project, which was concluding and would be reporting in 1998.
sponsored by AAMD, was developed based largely on the findings
of MESL. AMICO came up with a licensing framework that illustrated
museum priorities as well as university priorities.
familiar with collections projects like MESL noted that the
collections of images aren't extensive enough. Teachers and
students should also be involved in the creation of these
suggested that when students become involved in these issues/discussions,
faculty must be sure to educate them that the commercial world
is not like the educational world.
indicated that the US Copyright Office will be able to take
a more visible role in these issues in the near future. Sundt
said that documents should be more available to the public.
She indicated that in reading the CONTU report on Inter-Library
Loan from the 1970s she saw that librarians and educators
were really not all that involved in that conference.
material on the "Copyright Law in the Digital World" conference,
compiled by Christine Sundt, may be found at <http://oregon.uoregon.edu/~csundt/pdx.htm>.
The interim report on the Conference on Fair Use is posted
& FAIR USE IN THE DIGITAL WORLD:
VIEWS FROM THE WORLDS OF SCHOLARSHIP, PUBLISHING AND MUSEUMS.
Annual Meeting of the College Art Association
Thursday February 26, 1998
TOWN MEETING WEBSITE
(in order of presentation)
A. Baron, Arts Information Consultant
Peter Walsh, Davis Museum and Cultural Center, Wellesley College
Gary Schwartz, Curators of Dutch Art (CODART), Netherlands
Institute for Cultural Heritage
David L. Green, National Initiative for a Networked Cultural
Leila W. Kinney, Department of Architecture, Massachusetts
Institute of Technology
Maxwell L. Anderson, Art Museum Network; Director, Art Gallery
Howard Besser, School of Information Management & Systems,
University of California, Berkeley
town meeting in this series was organized by the Toronto Town
Meeting Committee, co-chaired by Robert Baron, Arts Information
Consultant, and Leila Kinney, School of Architecture, Massachusetts
Institute of Technology.
following the model of the Town Meeting at the American Association
of Museums, this meeting was presented in two parts: part
one consisted of presentations of three papers, followed by
discussion; part two consisted of a two-part debate about
the issue of licensing and Fair Use of images.
Baron pointed out in his opening remarks, the subjects for
discussion had now moved beyond the Conference on Fair Use,
which looked increasingly irrelevant to immediate concerns.
As Mr. Baron put it, "After CONFU, we are discovering that
the lines of self-interest are becoming more resolutely drawn--and
perhaps, in this process, more clearly perceived." While not
neglecting to strengthen and confirm the rights and privileges
endowed by copyright law, the community of educators and scholars
had to discover acceptable new strategies and protocols for
securing continued delivery of copyrighted images and other
ONE: Strategies and Technologies
Peter Walsh, "The Coy Copy: Technology, Copyright and the
Mystique of Images." [Complete
Walsh's presentation broadly illustrated the fact and the
problem that copyright law was developed originally for printed
text and then adapted for other media and thus the law is
always somewhat distorted for the visual domain. In particular,
he examined the differences in the notion of the copy in text
and visual environments, and argued for a clarification in
the law over the value of different types of copies in the
Walsh demonstrated how prevalent and deeply ingrained in artists'
practice was the fact of copying and adapting the works of
others. A Rubens painting, "after Caravaggio," accepted today
as perfectly legitimate, was made in 1611 shortly after Caravaggio's
death. Under current U.S. copyright law, this would have been
illegal and prosecutable.
briefly followed the life-history of the images on the slides
we examined (painting to photograph to multiple copies, to
printed plate, to published book illustration to projected
slide). Other versions, ranging from student copies to engravings,
would have been made from the originals and reproduced as
lithographs, postcards, slides, book illustrations in short,
as many different kinds of production versions that scholars
know and recognize, each, in its own way, bestowing different
meanings to its own level and kind of copy. But copyright
law only recognizes a fair and an unfair copy (legal and illegal).
With literature, whether a copy is fair or not is comparatively
clear (it's either under copyright or not).
many maintain that each photographic copy of an original work
is itself copyrightable, bestowing on any given work a series
of layers of copyright ownership. With literary works, however,
copying does not affect the original. In this way, Walsh maintained,
a photograph of an original work of art was simultaneously
an original, a copy and a derivative because it is based on
"pre-existing material." Because the law doesn't distinguish
between kinds of visual copies, it becomes, he said, "impossible
to untangle these three notions."
Gary Schwartz: No Fair! Long-Term Prospects of Regaining Unencumbered
addressed what he saw as a schizophrenic situation, in which
scholars were thrown into a defensive posture over a set of
longstanding practices that depend on free or low-cost use
of images. Hitherto comparatively invisible in the market
place, art historians were ironically being seen now as a
source of profit as they found themselves "on the cross-hairs
of two antagonistic realms:" the copymakers selling machines
and techniques encouraging more profligate copying and the
copyright protectors aggressively tracking and charging for
use. This was threatening the economics of the discipline
of art history that, Schwartz suggested, should be re-named:
"The History of Art in the Public Domain."
to its intent, Fair Use was clearly not viewed by publishers
as a social principle, but rather as a mechanism to deal with
market failure--an inability to negotiate with the small-scale
users of their property. Now that electronic technology can
increasingly help track and charge for use, publishers could
see no justification for the Fair Use defense and were clearly
intent on destroying it: "The more capital is invested in
intellectual property, the more pressure is going to be brought
to bear on Fair Use, and the more anachronistic it is going
Schwartz called for a more aggressive response from scholars.
Given that "the doctrine of Fair Use is too ill-defined to
provide us with the right to use, on our own terms, materials
controlled by others," scholars should become more demanding
in fees for their own products: "Any use of the ideas, knowledge
and information we produce, by museums, image brokers, the
press or any other party, should be charged for at a rate
that would offset--at a premium--what we are being asked to
cede by way of payment for and control of images."
briefly proposed eight strategies, the first six dependent
on contesting current practices of the owners of material
and the last two revolving around making counter-claims or
organizing to claim financial benefits from the value added
by scholars to cultural heritage knowledge:
charges by public institutions
reproduction rights on art in the public domain
reproduction rights based on ownership
claims to copyright on photographs
claims on second-generation reproductions
abuse of power in the management of resources
a system of virtual counter-claims
our own collective position as holders of copyright.
art history as a discipline that had met with great success
over the last 50 years, Schwartz pointed to the fact that
that success has not translated into protections and benefits
for its practitioners: "the status of the art historian is
legally unprotected and socially undefined." Indeed the chance
for art historians to receive public support in conflicts
with the lawyers and producers of rock singers and movie stars
that art historians were facing in the recent copyright battles
was, in fact, greater than copyright itself: "The history
of copyright law is in this regard no different than that
of labor law and anti-trust law: only groups which have been
able to consolidate their position and convince society of
the legitimacy of their rights have been able to achieve a
proper level of legal protection. If we can do that, we will
have achieved much more than winning a battle with the copyright
David Green: "Your Copyright Future is Being Determined Now,
or: Public Interest? What Public Interest? [Complete
Green focused on copyright legislative activity of the 1997-98
Congress, examining two competing visions of copyright underlying
various bills before Congress. He presented the current "debate"
over copyright as one very much akin to the recent culture
wars over public funding for the arts and humanities: "the
copyright status of digital media, too, is a war about values,
values of a classic American kind that resurfaces throughout
our history: culture versus commerce, private gain versus
reviewed the relevant legislative developments in copyright
and Fair Use, including the life and death of the Conference
on Fair Use, and the World Intellectual Property Organization's
Copyright Treaty, ratification of which underlies current
reviewed three competing concepts to copyright, what lawyer
Peter Jaszi has labeled "quasi-copyright" (new database protections);
"para-copyright" (encryption technology negating Fair Use);
and "super-copyright" (contract law pre-empting federal copyright),
which Green saw as allied with the Administration's vision
of future copyright.
all this, there were poised two companion bills in Congress
that offered an alternative vision of the future: a comprehensive
and balanced Senate bill introduced last September by Sen.
John Ashcroft and a companion House bill introduced in November
by Representatives Rick Boucher (D-VA) and Tom Campbell (R-CA).
Both address the issues of privacy, Fair Use and liability.
Campbell-Boucher also addresses first sale and the issue of
the relation of state contract legislation to Federal Law.
(It clearly asserts that negotiated contracts cannot pre-empt
one's privileges, such as Fair Use, guaranteed by Federal
two bills are currently the focus of a major campaign organized
by the Digital Future Coalition. A useful side-by side comparison
of the Boucher-Campbell Bill (H. R. 3048) with what is now
the " Digital Millennium Copyright Act" is available on the
DFC website <http://www.dfc.org/issues/wipo/DMCanal/dmcanal.html>.
This campaign is clearly about which version--which vision--of
control and access to copyright material will be dominant
in the future.
as what to do about the future, Green recommended individuals
and organizations contact the College Art Association, the
National Humanities Alliance or the Digital Future Coalition
to determine how they could best work to effect legislative
change. On the educational front, NINCH was encouraging the
active development of campus and institutional policies and
principles on the use and management of copyright material
as well as copyright and Fair Use educational programs.
TWO: Educational Image Site-Licensing Debated: Will Site-Licensing
Eliminate Fair Use?
Kinney introduced a debate over educational site-licensing
by making a number of personal observations from the point
of view of an art historian. First was her sense of the community's
having traveled a long way from the early drafts of the CONFU
Guidelines for the Fair Use of Digital Images, in which she
felt that many scholars' longstanding practices were virtually
criminalized. The rejection of CONFU served to anticipate
a new, sophisticated use of high-quality digital images, replete
with contextualizing metadata, that could be made available
for reasonable prices through educational site licensing consortia.
her perception that in many discussions, the debate seemed
to posit two homogeneous communities: that of producers and
users, whereas in fact these communities are mixed--the "producers"
themselves also needed Fair Use. The prospect of a brilliant
digital image library should also imply collaboration and
feedback between scholars and curators, universities and museums.
welcomed the apparent "zone of freedom" that a user would
have with digital images delivered under the AMICO license
but worried that it might then be compromised by having to
renew contracts annually. This issue of "temporal" portability
she then applied to those who could use images at one location
where they worked, but not at another that did not license
the works, or those who were independent scholars.
Howard Besser: "The Erosion of Public Protection: Attacks
on the Concept of Fair Use."
Besser, rather than make a case against site licensing, opened
a broader discussion beyond AMICO, wanting to give, as he
said, a context for intellectual property in the digital age.
He began his talk with the basics of copyright and Fair Use,
emphasizing that in the mix between commercial gain and public
good it should be the public good that gains, but observed
that the balance was currently going the other way.
round of licensing of digital resources by commercial companies
has been rather bumpy and, from Besser's perspective, licensing
seems to have been used frequently to make an end-run around
Fair Use. Problems exist when libraries enter into licensing
arrangements with publishers, for, rather than being bought
outright, material is only leased. Consequently libraries
cannot build collections of historical resources, and cannot
govern when controversial items might be removed from a licensed
resource. Furthermore, if licensed resources are licensed
or controlled from a central source that is able to track
use, then serious privacy issues may easily arise.
agreed with Schwartz that commercial copyright owners viewed
Fair Use as an economic threat and marshaled other evidence
to prove that big business was attempting a "copyright grab"
of materials that should be more freely available. By this
phrase, Besser was referring to the article by Pamela Samuelson
published in the January 1996 Wired magazine, available on
the Web at <http://www.hotwired.com/wired/4.01/features/white.paper.html>.
Max Anderson: AMICO & Fair Use
is Director of the Art Gallery of Ontario and of the Art Museum
Network, a project of the Association of Art Museum Directors,
that is parenting the Art Museum Image Consortium (AMICO).
is a nonprofit cooperative of art museums founded to create
a collective library of digital images with rich contextualizing
metadata to be licensed for educational use on a cost-recovery
basis. A separate session explaining how AMICO worked was
offered the following day at the conference.
was a little nonplused since the advertised "debate" about
site-licensing had failed to appear, and he had no intention
to defend licensing as a whole. AMICO, he claimed, is quite
different from commercial licensing operations in a number
of important ways. It was nonprofit; it is based on cost-recovery;
it was formed to enable the fullest possible use of material
by the educational community. Unlike dealing with a commercial
company like Corbis, where a museum might not feel that it
was controlling its own destiny, AMICO offers a nonprofit
community-based solution to marketing digital images.
was formed to solve a number of problems: one of these was
the inability to find and use affordable, high quality digital
images from art museums; another was the difficulty that museums
have had with dealing with a high volume of individual requests
for digital material. AMICO solves both by creating a centrally
administered collective library of images. The current 23
museums that have joined AMICO have had their own collection
information systems, their own databases and will continue
to market their own collections, but finding material across
such a number of museums is a nightmare that only a collective
library can successfully solve.
assured the audience that the AMICO license allowed uses far
beyond those traditionally allowed under Fair Use, including,
for example, features like remote access, manipulation for
study purposes, retention in a portfolio, and regular use
answered a variety of questions both from the floor and from
the Town Meeting Web site <http://www/pipeline.com/~rabaron/ttm/TTM.htm>.
Many of these inquiries concerned the financial viability,
not only of AMICO, but of the project of networking cultural
heritage materials in general. While Anderson maintained that
AMICO was seeking minimal cost-recovery in a project that
museums were using as a way of furthering their public educational
mission, Besser, reporting from a study he was involved in,
claimed that museums would be lucky to truly recover their
costs in digitizing their collections from such an enterprise
and would have to depend on traditional commercial markets
to make any kind of income. Anderson agreed that a combination
of fundraising and licensing income would have to be at the
heart of AMICO's future viability.
that substantial funding still had to be raised from government
and foundations to seriously tackle the task of networking
cultural heritage materials: this was a task that was not
being confronted head on.
Meetings were conceived as mixing the presentation of fact
and the provision of a forum for discussion. The range of
questions, spanning present reality and future possibilities
included: what is copyright law, what is fair use, what are
the fair use guidelines, how do they apply to your situation,
how does the digital environment change the equation, what
do we do without CONFU guidelines, what do we require from
new legislation, what are the guiding values of this community
and, finally, what are new economic models for access to intellectual
property that we need to contend with, or imagine, in our
met with very warm and active receptions around the country.
There was clearly a need for information and advice on copyright
and fair use issues and a need to discuss the present and
future scenarios that members of the educational community
found themselves in. Much changed even over the one year of
the meetings. At the beginning the proposed CONFU Guidelines
were the hot topic. By the end they were dead, and audiences
and panelists were focusing on other issues: legislation,
licensing, organizing and new forms of guidance in the classroom
and the study.
rapidly developing environment, the needs are broadly still
the case that these issues are important for those producing
and using cultural materials and will become increasingly
critical as more distribution and use of cultural resources
the basics of copyright law and fair use;
the current state of intellectual property legislation
and what is changing;
considering and speculating on the impact of digital networking
on the use and management of intellectual property;
new, additional economic and social models;
specific cases, issues and problems.
is much more to be done on these issues in many different
forums and we are ready for organizing a second generation
of town meetings that will build on the strengths of this
first series and incorporate what many of have learned in
the process of taking these town meetings to our communities
across the nation.