Developing Fair Use Guidelines for the NII: Defining the Issues

On December 2, the Department of Commerce Patent and Trademark 
Office (PTO) hosted the latest in a series of meetings on fair use 
and the National Information Infrastructure (NII).  These meetings 
were a follow-up to a September Fair Use Conference called by the 
Administration's Working Group on Intellectual Property Rights of 
the Information Infrastructure Task Force.  During the fall, the 
Working Group established three subcommittees to examine fair use 
and the NII in library, university, and elementary/high school 
settings.  Initial meetings of each subcommittee brought together 
representatives of copyright owners, libraries, and users to 
develop guidelines for fair use of copyrighted works.

The December meeting brought representatives from the 
subcommittees together to discuss drafts of over 20 "issue papers" 
prepared by participants in the series of meetings.  Topics 
covered by the papers were those identified at subcommittee 
discussions as warranting further consideration.  These topics 
included:  the definition of a classroom/library, distance 
learning, transient copying, interlibrary loan, document delivery, 
electronic reserves, preservation, and encryption.

The point of preparing the issue papers was to define and describe 
the topic or activity, provide examples of projects and 
experimentation that relate to fair use in an electronic 
environment, and summarize relevant issues.  Active collaboration 
among librarians, publishers, and representatives of educational 
and publishing organizations was encouraged so that the resulting 
issue papers would present each topic in a broad context, rather 
than from a single perspective.  Mary Jackson, ARL, coordinated 
the writing of issue papers on three topics (ILL, DD, and e-
reserves); Ann Okerson, ARL, did the same for the topic of 
encryption. 

At the December meeting, 20 of the 24 papers were summarized and 
comments were sought on changes or improvements needed in the 
presentation of the issues.  Representing the Association at this 
meeting were Mary Jackson and Prue Adler.  The revised issue 
papers will be used to provide the Working Group with background 
and context as it begins to focus on the development of fair use 
guidelines for the NII on some or all of the issues for which 
papers were written.  As the issue papers are revised and made 
available, they will be posted on the ARL Gopher (arl.cni.org).

The Working Group subcommittee will have another joint meeting in 
early January.  The Working Group steering committee asked authors 
of some of the papers to develop draft fair use scenarios based on 
the issues covered.  These scenarios will give examples of 
activities that might fall within or exceed fair use.  For the 
January meeting, scenarios will be developed about works for the 
visually impaired, transient copying, preservation, downloading 
for personal use, distance learning, and authors' issues.

Any guidelines for which consensus is reached in this process are 
expected to be included in the final report of the Working Group 
on Intellectual Property Rights, which is due to be published in 
mid-1995. 

Mary E. Jackson
1/95