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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 1994 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"?
- 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
Appendix One). 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
proprietors.
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, we should now work hard to reassert the
principle of Fair Use in the digital environment at the legislative
level.
APPENDIX ONE
REVISED JULY 2, 1997
NOTIFICATIONS RECEIVED FROM ORGANIZATIONS ON THE
PROPOSALS FOR FAIR USE GUIDELINES
Links from Organization name connect with statements
endorsing or rejecting Guidelines
*Asterisk indicates link to PDF file at
Patent
& Trademark Office website
5/16/97
Signatories to
Letter
to Orrin Hatch, 1/13/97, not included in above listing:
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National School Boards Association
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--
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--
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No
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National Association of Elementary School Principals
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--
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--
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No
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American Association of School Administrators
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--
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--
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No
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National Association of Independent Schools
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--
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--
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No
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National Association of Secondary School Principals
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--
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--
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No
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National Education Association
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--
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--
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No
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U.S. Catholic Conference
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--
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--
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No
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APPENDIX TWO
EXPANDED CONFU STEERING COMMITTEE
*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
* Laila Van Eyck, National
Association of State Universities and Land Grant Colleges
* John Vaughn, Association of
American Universities
* Pat Williams, American
Association of Museums
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