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REPORT ON THE FINAL MEETING OF THE CONFERENCE ON FAIR USE
Virginia M.G. Hall
On May 19, 1997 the Conference on Fair Use convened for its final
meeting. The morning session was supposed to be divided into three
discussion periods, with equal time allotted for each of the sets of
proposals. The first item on the agenda was a discussion of the
proposed Multimedia Guidelines, and the debated was predictably long
and heated. In the interest of cutting to the chase, I will detail
the discussion on the proposed Guidelines for Digital Images, first,
and return to a summary of the Distance Learning and Multimedia
Proposed Guidelines later.
Individuals and organizations were able to send statements and
comments to Peter Fowler at the Patent and Trademark Office up until
the close of the business day on May 15 in order to be included in
the summary presented to the conference on May 19. Of the sixty
organizations which responded, 18 voiced a position of non-support, 4
endorsed and 4 specified that they had "no position" on the Digital
Images Proposed Guidelines. The remaining letters did not mention
these proposals. Of the twenty-four individuals who wrote, only two
addressed the Digital Images: one with a vote of yes and one with a
stated "no position." The remaining comments addressed only the
Multimedia Proposals. All of the letters received will be posted on
the USPTO web site at http://uspto.gov.
The discussion on the Digital Images Proposed Guidelines was led
by Patricia Williams of the American Association of Museums, which
had endorsed the proposal. Pat noted that her constituents felt that
it would be appropriate to field test the proposals for a one year
period. Kathe Albrecht and I made it clear that the Visual Resources
Association had resoundingly opposed these proposals and that the
next year would not be used to test these guidelines, but rather
would provide a time frame to observe how institutions are using
digital images and what the problems and concerns are for both users
and rights holders. Susan Ball, Executive Director of the College Art
Association, reiterated a position of non-support. Doug Bennett of
the American Council of Learned Societies stated that current
copyright law simply is not tailored to images and this fact makes it
difficult to construct meaningful guidelines for image use in analog
or digital form. Anita Definis of the American Association of Museum
Directors noted that her organization did not endorse the guidelines
and represented an overlap with the American Association of Museums.
A number of representatives from the rights holders side urged us
to keep working towards acceptable guidelines. It is certainly in
their best interests to keep us in the bean-counting mode when it
comes to interpreting fair use. We responded by noting that at this
point in time we felt it might be more productive for us to work in
conjunction with like-minded interested parties towards developing
principles for practice or other user oriented guides. This is the
same idea that the American Library Association proposed in its
recent Conference on Fair Use Joint Statement (see
http://www.ala.org/washoff/confu.html for the full text of the joint
statement and information about fair use and other intellectual
property issues central to libraries and librarianship).
The tally for the Distance Learning proposals was 16 negatives, 7
endorsements and 2 statements of "no position" out of sixty
responses. Lolly Gasaway of the Association of American Universities
led the discussion. She noted that the goal of the working group had
been to extend the classroom guidelines to cover Distance Learning.
The major criticism of the proposed guidelines had been the failure
to deal with asynchronous delivery over computer networks. However
the group had felt that it was simply too early to deal with this
issue. As there is a strong feeling that some guidelines are needed,
the working group hopes to reconstitute and expand after an
unspecified period of time to attempt to grapple with the larger
issues. It is clear that the proprietors are very concerned about the
possibility of asynchronous computer network delivery.
The discussion on the Multimedia Guidelines was much more
politicized and contentious. The number of endorsements received was
24, with 14 negative statements and 2 statements of "no position."
Lisa Livingston of the Consortium for College and University Media
Centers (CCUMC) who has spearheaded the development of these
guidelines took over half an hour of the 45 minutes allotted for
discussion to deliver a monologue on the "overwhelmingly enthusiastic
response" that these guidelines have received. She stated that it had
never been the CCUMC's intent to "foist these guidelines on anyone,"
yet minutes later announced that the CCUMC had "no intention of
pulling them back regardless [of anyone's feelings]." The responses
to these comments were equally vehement. Doug Bennett from the
American Council of Learned Societies was most articulate in his
statement that while individuals from Media Centers may have endorsed
the guidelines, organizations representing users--colleges,
universities, libraries, primary and secondary education-- have
resoundingly said no. He questioned whether CCUMC could really claim
widespread endorsement for these guidelines. Although he felt this
had been a good faith effort, he stated that any strategy using
numbers and counting was a flawed interpretation of fair use. Lisa
Livingston's response to those who questioned her interpretation of
the level of acceptance of these guidelines was essentially to say
that you don't know what you are talking about. In general her
complete refusal to hear other viewpoints has frustrated many
throughout the process. It is clear that many institutions are
adopting these guidelines; it is equally clear that many of the
groups opposed represent libraries and institutions of higher
learning. Although CCUMC may feel there is"overwhelming support" not
everyone was convinced.
The other interesting aspect of this discussion was that several
of the representatives of proprietors' groups, notably Carol Risher
of the Association of American Publishers and Judith Saffer of
Broadcast Music Incorporated stated that they would view these
guidelines as a "safe harbor" and would not sue anyone who followed
them. However, Paul Aiken of the Authors Guild was quite clear that
these guidelines would not necessarily provide such protection.
After the discussion of the proposed guidelines was completed, the
assembly moved on to concluding business. Peter Fowler, CONFU
facilitator, will prepare a final report for the Patent and Trademark
Office on the CONFU process. This report will act as a record, but
will have no official or legal ramification. Accordingly, none of the
proposed guidelines will be introduced into legislative record by the
Patent and Trademark Office. The CCUMC proposals received a
non-legislative report from Congress last October. Lisa Livingston
said that CCUMC will not take any further action (i.e., will not
submit guidelines to Congress for legislative approval of some kind)
as "there is no need given the overwhelming support they have
received." Peter Fowler also noted that he felt strongly that CONFU
had not been a failure. It has accomplished a national discussion on
these issues and an increased awareness of the complexities of the
problems involved. The Patent and Trademark Office has had 10,000
hits to its web site and over 1700 copies of the Interim Report on
the Conference on Fair Use have been distributed.
It was perhaps not too surprising that there were many
representatives, mostly on the rights holders' side, who did not want
to see CONFU end. After a lengthy discussion of this matter, it was
finally resolved to bring the current Conference on Fair Use to an
end. However, an expanded steering committee was formed and a meeting
date of May 18, 1998 was set for any interested parties to meet to
continue discussion on the matters at hand. Kathe and I have entered
this date in our calendars and will be prepared to attend that
meeting should the Visual Resources Association feel it desirable.
Virginia M.G. Hall, Curator
Art History Visual Resources Collection
Johns Hopkins University
Baltimore, MD 21218
Tel: 410-516-7122
Fax: 410-516-5188
hall_vmg@jhunix.hcf.jhu.edu
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