Conference On Fair Use Of Copyrighted Works Concludes Without Consensus; Educators, Scholars, Librarians To Explore Next Steps

The Conference on Fair Use ("CONFU") was initiated in September of 1994 to facilitate informal discussion of the parameters of fair use in the digital environment in educational, scholarly and library settings among copyright proprietors, producers and users. Hosted by the U.S. Patent & Trademark Office, CONFU effectively ended on May 19, 1997. Informal discussion of more than twenty relevant topics was undertaken over that 32 month period by scores of corporate and organizational representatives. In CONFU's last year, the agenda was distilled in intense debate to the possible production of fair use "guidelines" covering just three issue areas.

Ultimately, proposals concerning some aspects of distance learning and digital image collections were circulated for comment. Neither, how- ever, garnered broad and deep support in both the proprietary and user communities participating in CONFU. In addition, multimedia- focussed proposals (developed in parallel to CONFU and presented to the participants last November) provoked widely disparate responses and confusion given their aggressive promotion to Congress and the user community despite having been rejected by many of the nation's principal educational, scholarly and library organizations.

A summary of conclusions and agreements reached at May's final CONFU meeting follows this report. Virtually all present, however, concurred that the process provided an excellent forum for constructive dialogue between information proprietors and users. Many also expressed the hope that CONFU serve as the foundation for future discussions.

Looking ahead, CONFU participants' inability to craft consensus guidelines (ones which provide effective copyright protection to information proprietors and afford users appropriate access to information without fear of litigation) presents educators, scholars and librarians - - and their national representatives--with the opportunity and responsibility to explore the appropriate parameters of fair use to the extent that experience and good faith permit. Members of the educational, scholarly and copyright user communities listed below, therefore, individually and collectively commit themselves to the following:

• We will share experiences concerning: the application of new technology in library and educational environments, "fair uses" made of copyrighted works, proprietors' responses to requests for permission to use copyrighted materials, and sources of helpful information regarding fair use and other privileges under copyright law;

• We will participate in organized efforts to capture and disseminate such information;

• We will assist in the development of "User Community Principles" and educator- and librarian-generated "Best Practices" concerning fair use, distance learning, and other activities supported by current copyright law;

• We will work to extend the application of fair use into digital networked environments in libraries and educational institutions by relying on it responsibly to lawfully make creative use of information;

• We will resist relying on any proposed code of conduct which may substantially or artificially constrain the full and appropriate application of fair use; and

• We will encourage our members to reject any licensing agreement clause that implicitly or explicitly limits or abrogates fair use or any other legally conveyed user privilege.

Educational, Scholarly, And Library Association Statement On The Conclusion Of "CONFU"

Endorsing Organizations

American Association of Law Libraries American Association of State Colleges and Universities American Council on Education American Council of Learned Societies American Library Association Association of American Universities Association of Research Libraries Medical Library Association National Association of State Universities & Land-Grant Colleges National Education Association National Humanities Alliance National Initiative for a Networked Cultural Heritage National School Boards Association Special Libraries Association

Conference On Fair Use Final Meeting May 19, 1996 Principal Issues & Outcomes

Issue

Outcome

Status Of "Guidelines" Proposals

Participants concurred that neither draft Distance Learning or Digital Images proposals had achieved broad support. Multimedia proposals also were strongly opposed by representatives of higher education, scholarly, K-12 and library associations. Peter Fowler of the PTO con- firmed publicly quoted statements by Commissioner Lehman that CONFU did not produce consensus guidelines.

Value Of Confu Process

Participants agreed that the process of discussion had been enlightening and would facilitate future dialogue.

Future Discussions/Contacts

Participants agreed that steps should be taken to facilitate continued informal dialogue and to permit a large group meeting similar to CONFU to be efficiently convened at an unspecified point in the future. (Many present urged that any such forum not be considered a continuation of CONFU itself.) To those ends, the participants present agreed that: (I) borrowing the concept of CONFU's administrative "Steering Committee," a much expanded group of 11 persons will remain in contact by e-mail, monitor developments in the field and, if appropriate, seek to bring a larger forum together; (ii) in the interim, individuals previously members of Distance Learning and Digital Images working groups will continue to pursue agreement with proprietors, although at least one major corporation's representative cautioned that such agreement was highly unlikely; and (iii) should a venue be needed for future working group meetings, the Mumford Room of the Library of Congress has been reserved for May 18, 1998.

Release Of Facilitator's Report

Participants agreed that release of a document similar to the "Interim Report" by PTO staff circulated broadly in December 1996 would be appropriate, but only after being amended to: (I) make clear that the report was prepared for the Commissioner of the PTO by his staff and not by CONFU participants; (ii) indicate which groups have supported a given proposal appended and which groups have opposed, and include any statements submitted by such groups; and (iii) delete in its entirety the Interim Report's recommendation that draft guideline proposals be submitted to Congress for incorporation into legislative history. (Parties wishing to comment on previously circulated draft proposals may do so prior to 6/30/97.)

Congressional Endorsement

The PTO facilitator clarified that the agency would not seek Congressional endorsement of any draft guideline proposals. In response to a question, the principal representative of multimedia proposal proponents made a comparable commitment.

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