BACKGROUND

As the White Paper noted, "intellectual property is a subtle and esoteric area of the law that evolves in response to technological change." ¹⁵ The Copyright Act¹⁶ was enacted in response to "significant changes in technology [that had] affected the operation of the copyright law." ¹⁷ It specifies that certain uses of copyrighted works are outside the control of the copyright owner, and it provides a number of exceptions to the "exclusive" rights of copyright owners. While many regard these exceptions as rights of users, they are, technically, outright exemptions from liability or affirmative defenses to what would otherwise be acts of infringement.

The most significant and, perhaps, murky of the limitations on a copyright owner's exclusive rights is the doctrine of fair use. ¹⁸ Though now embodied in statutory language, the doctrine of fair use is rooted in more than 200 years of judicial decisions. Fair use is an affirmative defense to an action for copyright infringement. It is potentially available with respect to all manner of unauthorized uses of all types of works in all media. When the fair use doctrine applies to a specific use of a work, the person making fair use of the work does not need to seek permission from the copyright owner or to compensate the copyright owner for the use of the work.

Before examining the work of CONFU, it is useful to examine the statutory language concerning fair use. Section 107 of the Copyright Act provides:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section [sic], for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.¹⁹

The copyright law allows copyright owners to exercise the rights granted to them, to license their rights, or to give them away. Some copyright owners are not motivated by any commercial considerations. Those creators and authors who wish to dedicate their works to the public domain may, of course, do so notwithstanding the availability of protection under the Copyright Act. Nothing in the law prevents those who do not wish to claim copyright from waiving their rights and allowing unrestricted reproduction, distribution and other uses of their works. As the White Paper notes, "[c]opyright protection is not an obstacle in the way of the success of the NII; it is an essential component. Effective copyright protection is a fundamental way to promote the availability of works to the public." ²⁰

While the NII and other digital technology present myriad opportunities for fair uses of works,

[i]t is reasonable to expect that courts would approach claims of fair use in the context of the NII just as they do in 'traditional' environments. Commercial uses that involve no 'transformation' by users and harm actual or potential markets will likely always be infringing, while non-profit educational transformative uses will likely often be fair. Between these two extremes, courts will have to engage in the same type of fact-intensive analysis that typifies fair use litigation and frustrates those who seek a 'bright line' clearly separating the lawful from the unlawful.²¹

Given the lack of such "bright lines", interested parties, including the user communities, copyright owners, and those who act in an intermediary role, such as libraries, educators, and publishers, have over the years developed voluntary guidelines to address practical use situations. The fair use²², library copying²³, and educational use²⁴ provisions of the Copyright Act have been the subject of four sets of guidelines for libraries and educational institutions, to which affected parties have agreed. These various guidelines, while having no force of law, are contained at different places in legislative history. The current guidelines cover certain copying by and for teachers in the classroom context²⁵, the copying of music for educational purposes²⁶, the copying of relatively recent journal articles by one library for a patron of another²⁷, and the off-air videotaping of educational broadcast materials.²⁸ The result has been, in certain circumstances, a quantitative gloss on the construction of fair use and library copying privileges.

I. THE CONFU PROCESS

The genesis of CONFU was the Green Paper's call for a "conference to bring together copyright owner and user interests to develop guidelines for fair uses of copyrighted works by and in public libraries and schools." ²⁹ Some forty organizations representing copyright owners, educators, and librarians were invited to submit statements that identified the issues that they believed CONFU should address, and that set out no more than three principles that participants believed should apply to educational and library fair use in the digital context.³⁰ These statements were distributed to all participants and discussion of the proposed principles occurred at the first session of CONFU on September 21, 1994. The participants' proposed principles were subsequently grouped into several categories: fair use in general, policy concerns, media application, marketplace, licensing/transaction tracking, new guideline concerns, and browsing.³¹

Participants were encouraged to follow the example of previous successful efforts to develop voluntary fair use guidelines -- the Classroom Guidelines in 1976,³² and the National Commission on New Technological Uses of Copyrighted Works (hereinafter "CONTU"), which dealt with the issues raised by photocopiers and computers in 1978.³³

In addition, there was a recognition that the Consortium of College and University Media Centers (CCUMC), which had convened a working group composed of many of the same participants as CONFU, had begun in June 1994 a process to develop fair use guidelines for educational multimedia uses. While a parallel effort, the CCUMC multimedia working group was open to all CONFU participants, its progress reported at CONFU meetings, and its results, ultimately considered part of the CONFU process, were added to the Report on the Conclusion of the First Phase of CONFU.

At three half-day meetings on October 21, 24, and 26, 1994, there was an initial effort to organize the discussion and work of CONFU by means of subgroupings of participants into library, elementary-secondary, and higher education subcommittees. These meetings identified a variety of new uses and issues for discussion. However, because they reflected the same copyright owner and user concerns, they crossed all organizational subgroupings; hence, this approach did not prove to be a useful organizing structure. Since individuals had volunteered to present short papers or reports on these discussion issues at future meetings, it was decided, rather, to meet in plenary sessions to hear and discuss the topic presentations. This process began in early December 1994.

The presentation and discussion of these topics laid the foundation for informed discussions prior to participants turning to the subject of drafting various scenarios, and, further, allowed participants to decide which topics should be explored as scenarios and which were useful only as background information. The scenario presentations and discussions allowed participants to decide which topics were appropriate for guidelines, and how to deal with such topics, if at all, in the process of drafting guidelines.

Following presentations on twenty-one different topics,³⁴ certain topics were selected for discussion of specific scenarios which would provide concrete examples of how schools and libraries might use copyrighted works under fair use and whether such uses were covered by current law. These scenarios, which included distance learning, multimedia, electronic reserves, visually impaired, transient copying, use of software in libraries, preservation, visual image archives, interlibrary loan/document delivery, downloading for personal use, and browsing,³⁵ provided a range of examples of what, in the opinions of the drafters of the scenarios, may or may not be considered fair use or, in the case of interlibrary loans, guidelines for Section 108. Subsequently, following further sessions devoted to topic and scenario discussions, and as a result of the extensive background discussions at monthly sessions, six working groups,³⁶ with various representatives of rightsholders and educational and library users as participants, emerged to draft and negotiate fair use guidelines in five specific areas. A Statement of Scenarios on the use of copyrighted computer software in libraries was also created.

These working groups met and negotiated throughout 1995 and most of 1996, running contemporaneously with monthly plenary sessions to discuss issues and drafts of voluntary guidelines with the entire group of participants. In addition, a number of individuals and organizations interested in nonprofit music education and music publishing met on April 26, 1996, at Columbia University, under the auspices of CONFU, to discuss whether current guidelines for educational uses of music needed revision in the digital environment.³⁷ The general consensus was that no change was needed at that time, but that music publishers, music educators, and music librarians would need to be aware of the guidelines being developed by CONFU, which might include uses of music in digital form.

As progress was being made in some areas and not in others, it was decided at the plenary session meeting on May 30, 1996, that a concerted effort would be made by all working groups to complete, if possible, the drafting of widely acceptable guidelines in light of a general consensus to end the CONFU plenary process by November 30, 1996. The multimedia working group stated at that time that should it reach agreement on fair use multimedia guidelines sooner, it would seek to have such voluntary guidelines included in legislative history.³⁸

On May 30, 1996, participants agreed to adopt for all sets of guidelines a Uniform Preamble,³⁹ which had been drafted and coordinated by Mary Levering, Associate Register for National Copyright Programs in the U.S. Copyright Office. On September 6, 1996, participants agreed that a brief factual report of the CONFU process, including any resultant guidelines, should be prepared with advice and comment from the CONFU Steering Committee. A draft of such a report was circulated by the Steering Committee for comment prior to a plenary session on November 25, 1996. At the meeting on November 25, 1996, a number of revisions to the draft report were suggested and discussed, and it was agreed by the participants that the three sets of guidelines dealing with digital images, distance learning, and educational multimedia, would be attached as appendices to what would now be called an Interim Report. It was agreed that the Interim Report would be circulated as a useful background for those who would now consider the endorsement or non-endorsement of the three sets of guidelines during an agreed to six-month endorsement period, recognizing that the proposed guidelines for digital images and distance learning, unlike those for educational multimedia, were completed only a short time prior to the meeting and might possibly be revised at some point in the future as the working groups may determine appropriate.

The Interim Report was published in early January 1997, in both hard copy and electronic form, and it was made available on numerous websites, including the official U.S. Patent and Trademark Office website.⁴⁰ Following an extended period for discussion and consideration of the proposals for guidelines, CONFU participants met on May 19, 1997, to consider the degree to which the three proposals for guidelines had gained acceptance and endorsement among the copyright owner and user communities as reflected in comments and statements received by the CONFU facilitator. It was determined that a report, which would update the Interim Report as to the status of CONFU and the results achieved to date, be drafted and published in recognition of what was viewed by many as the conclusion of the first phase of the Conference of Fair Use. Participants were given until June 30, 1997, to submit to the facilitator any formal or revised statements or comments of their position on the three sets of guidelines, with such submissions to be included in the aforementioned report, as well as, posted on the U.S. Patent and Trademark Office website.⁴¹

In recognition of the need for continued work and discussion on some of the guidelines, as well as the desire of most participants to continue a forum for dialogue on other fair use issues, it was the consensus of the participants that CONFU would reconvene a meeting on May 18, 1998. The purpose of the meeting would be to assess the status of the three sets of guidelines, to take reports on the work of the remaining working groups on digital images and distance learning, and to assess the progress, if any, toward achieving greater acceptance, endorsement, and implementation of the various sets of guidelines within the copyright owner and user communities.

II. STATUS OF THE GUIDELINES

Following what amounted to an intensive self-education process by CONFU participants, the various working groups, where it proved possible, began the task of discussing and drafting proposed guidelines, often taking months of negotiation on both concepts and language. Some working groups succeeded in drafting proposals for guidelines which were acceptable to a broad range of participants. Others were not as successful in drafting proposals for guidelines acceptable to a broad cross-representative number of CONFU participants. In some areas, participants felt that the time was not yet ripe to write actual guidelines since the technology was still evolving and the marketplace was still experimenting with how to deal with these issues. In other areas, there was no clear consensus on how to draft guidelines, or whether, in some cases, guidelines were even necessary. Some institutions and organizations which participated in CONFU are opposed to one or more of the proposals for guidelines, while others have endorsed some or all of the guidelines. Indeed, at the end of Phase One of the process, some organizations concluded that it was premature to adopt any guidelines at this time. Finally, it was a matter of general agreement by all CONFU participants that the participation by such institutions and organizations in the process of drafting these proposals for guidelines does not assume the endorsement by any of the participating institutions and organizations.

What follows is a summary of the work of the respective working groups on the various proposals for guidelines.

A. DIGITAL IMAGES

It was recognized at the outset of CONFU that digital images collections raise issues different from text issues; that these considerations and concerns were not addressed by text norms and understandings (e.g., quality/distortion/accuracy issues, commercial exploitation potential, and the critical mass necessary for educational uses). Moreover, print issues were well represented within the CONFU process, and, because not much attention had been paid to the issues regarding images in the old technologies, it was even more difficult to grapple with the issues in the new technologies. These issues were discussed at early CONFU plenary sessions and separately at a College Art Association meeting in April 1995, in New York, convened by Barbara Hoffman, counsel to the College Art Association.

Subsequently, various versions of scenarios and drafts of proposed guidelines were prepared and presented by Barbara Hoffman and discussed at several CONFU plenary sessions. Recognizing the scope of the issues, and the disagreements on threshold understandings of copyright issues relating to digital images, it was recommended at the CONFU plenary session in December 1995, that a more formal CONFU working group, representing both educational users and copyright owners, was needed to review and negotiate the working drafts. After a few sessions in early 1996, it became clear that, in order to make significant progress on the drafting of widely acceptable guidelines, other disciplines, in addition to art history and art scholarship, needed to be represented in the working group in order to represent broader interests and concerns regarding educational fair use of digital images.

Drawing also on representative parties from the scientific, biomedical, and mathematics communities, the Digital Images Working Group was reorganized under the leadership of Patricia Williams, Vice President of Policy and Program of the American Association of Museums, with the assistance of Anita DiFanis, Director of Government Affairs of the Association of Art Museum Directors, and others, including, Mary B. Levering, Associate Register for National Copyright Programs of the U.S. Copyright Office, Library of Congress, Hope O'Keeffe, Deputy General Counsel of the National Endowment for the Arts, and Victor S. Perlman, General Counsel of the American Society of Media Photographers, with more than twenty participating organizations providing support and guidance to this expanded process. This expanded effort led to new Educational Fair Use Guidelines for Digital Images being drafted with input from the copyright owner and user communities. The purpose of the Guidelines is to clarify the application of the fair use doctrine as it relates to the creation of digital archives, digital images and their use, for educational purposes, including the digitizing of pre-existing analog image collections and newly acquired analog visual images.

Having completed the drafting process in November 1996, the working group concluded that, while there was no consensus within the working group as to recommending the guidelines for endorsement, there was consensus that the draft guidelines could be disseminated to organizations for review, discussion, and possible endorsement over the next several months. As with other sets of guidelines, participation in the process of drafting these guidelines does not assume the endorsement by any of the participating organizations, and organizations may or may not choose to endorse the digital images guidelines. On November 25, 1996, it was decided that this proposal would be submitted for consideration as a completed proposal for fair use guidelines for digital images.⁴²

Following extensive national discussion and consideration of the proposal for guidelines by many organizations concerned with art education, art history and art preservation, it was apparent at the CONFU meeting on May 19, 1997, that while a number of organizations had endorsed the proposed guidelines and were willing to implement them in order to see if they worked, there was a significant number of organizations that opposed endorsement of the guidelines at this time on the basis that the proposed guidelines were viewed as unworkable. Given that most participants supported the goal of achieving workable guidelines, but acknowledging the lack of consensus on the proposed guidelines, it was proposed that a monitored use period be instituted for at least one year, during which institutions could implement the proposed guidelines and use them in practical classroom and institutional situations.

During this use period, those institutions and organizations which voluntarily implement the guidelines will be asked to provide their observations, comments, and criticisms of the guidelines to the Digital Images Working Group, whose membership has been expanded to include a greater number of educational and academic organizations. The working group will continue to meet periodically to discuss specific problems reported in using the guidelines and to reevaluate the guidelines based on specific concerns expressed. The working group will consider revising the guidelines with the goal of gaining wider support and endorsement of them. A report on the experiences of those institutions and organizations that implement the guidelines during the use period, together with a summary of other activities of the working group, will be made at a meeting on May 18, 1998.

B. DISTANCE LEARNING

The Distance Learning Working Group met under the leadership of Laura Gasaway, Professor of Law and Director of the Law Library at the University of North Carolina, who represented the Association of American Universities, to discuss the issues involved in distance learning activities and to draft guidelines.

The purpose of the Educational Fair Use Guidelines for Distance Learning is to provide guidance on the application of the performance and display of copyrighted works in some of the distance learning environments that have developed since the enactment of Section 110 and that may not meet the specific conditions of Section 110(2). It is the belief of the working group that these Guidelines basically extend the face-to-face teaching exemptions in Section 110 of the Copyright Act to distance learning but with certain restrictions.

After considerable discussion, the working group had determined that it was feasible to draft guidelines which only apply to the real time performance and display of a lawfully acquired copyrighted work not covered under Section 110 (2) of the Copyright Act, but that it was not feasible at this time to draft guidelines that apply to asynchronous delivery of distance learning over a computer network.

Although participants in the working group believed that fair use applies in some aspects of such instruction, they did not develop fair use guidelines to cover these situations because, among other things, they felt that the area was still unsettled, that in the face of rapidly developing technology, educational institutions are only now beginning to experiment with such distance learning courses, and publishers and other content creators are in the early stages of developing materials and marketing strategies for publisher-produced computer network delivery of distance learning materials. The working group suggested that the issue of fair use guidelines for asynchronous computer network delivery of distance learning courses be revisited within three to five years.

As with other sets of guidelines, the participation by organizations in the process of drafting these guidelines does not assume the endorsement by any of the participating organizations. On November 25, 1996, it was decided to submit the guidelines to CONFU participants for consideration as a proposal for fair use guidelines for distance learning.⁴³

Following extensive national discussion and consideration of the proposal for guidelines by many organizations concerned with distance education issues, it was apparent at the CONFU plenary session meeting on May 19, 1997, that while numerous organizations had endorsed the proposed guidelines, there was a significant number of organizations that opposed endorsement of the guidelines for a variety of reasons. Among the various reasons put forward by individual organizations was the commonly viewed belief that the proposed guidelines did not go far enough in addressing concerns about fair use for asynchronous computer network delivery of distance learning courses.

Given that most participants supported the goal of adopting workable guidelines, yet acknowledging the lack of consensus among CONFU participants on the proposed guidelines, it was agreed that the working group be expanded to include additional representatives from the educational community in order to attempt to resolve some of the concerns and reservations expressed by participants about the proposed guidelines.

This expanded working group would continue to meet periodically to address the concerns raised about the proposed guidelines, and would now additionally pursue the development of fair use guidelines for asynchronous network delivery of distance learning courses. A report on the efforts of the Distance Learning Working Group to draft further guidelines will be made at a meeting on May 18, 1998.

C. EDUCATIONAL MULTIMEDIA

The Consortium of College and University Media Centers (CCUMC), which convened a large group of representatives of both copyright owners and educational institutions which became the Educational Multimedia Working Group, had begun its process of discussing and drafting possible educational multimedia fair use guidelines four months prior to the convening of CONFU. This working group acted under the leadership of the late Ivan Bender, counsel to CCUMC, and Lisa Livingston, Director of Instructional Media, City College/City University of New York, and chair of the CCUMC Government Relations Committee.

The purpose of the Fair Use Guidelines for Educational Multimedia, which were drafted by copyright owners and users after considerable discussion and negotiation, is to clarify the application of fair use of copyrighted works as teaching methods are adapted to new learning environments. The Guidelines apply to the fair use of portions of lawfully acquired copyrighted works in educational multimedia projects which are created by educators or students as part of a systematic learning activity at nonprofit educational institutions. Such institutions are defined as nonprofit organizations whose primary focus is supporting research and instructional activities of educators and students for noncommercial purposes.

On September 6, 1996, CONFU accepted the Educational Multimedia Fair Use Guidelines developed by the organizations participating in the CCUMC working group, and, further, indicated that such guidelines could be included in any resulting CONFU report. On November 25, 1996, it was agreed by CONFU participants, at the urging of a large number of CCUMC working group members who were also participants in CONFU, that the Educational Multimedia Fair Use Guidelines be included in the CONFU Interim Report.⁴⁴

Following extensive national discussion and consideration of the guidelines by numerous organizations concerned with multimedia and education issues, it was apparent at the CONFU meeting on May 19, 1997, that a substantial number of CONFU participants, as well as, other institutions and organizations in both the copyright owner and user communities, supported or had endorsed the guidelines. However, there was not a consensus in support of the guidelines among those organizations participating in CONFU that represent academic and educational institutions and library concerns.

Since many CONFU participants voiced support for the guidelines, and the guidelines were already being implemented in several educational institutions around the country, it was decided that the Educational Multimedia Fair Use Guidelines would be released in their present and final form. It was suggested that the implementation of the guidelines be observed over the course of the next year, and it was further agreed that a report on the implementation of the guidelines would be made at a meeting on May 18, 1998.

D. ELECTRONIC RESERVE SYSTEMS

The working group met under the leadership of Dr. Kenneth D. Crews, Director of the Copyright Management Center at Indiana University-Purdue University at Indianapolis, who represented the Indiana Partnership for Statewide Education, Laura Gasaway, Professor of Law and Director of the Law Library at the University of North Carolina, who represented the Association of American Universities, Dr. Douglas C. Bennett, Vice President of the American Council of Learned Societies, Carol A. Risher, Vice President of Copyright and New Technology, Association of American Publishers, and Mary E. Jackson, consultant to the Association of Research Libraries. The focus of the working group's attention was to discuss the issues involved in the application of fair use to the creation of electronic reserve systems that allow storage, access, display and downloading of electronic versions of materials that support the instructional requirements of a specific course within a nonprofit educational institution.

After considerable discussion, the working group reached an impasse in late 1995 over the proposed scope and language of possible guidelines. This disagreement among the representatives of the copyright owner, educational institution, and library communities led all parties involved to conclude that it was not possible to draft fair use guidelines capable of gaining wide acceptance at this time. Some members of the working group, however, continued to meet and discuss these issues, which culminated in their drafting and circulating for comment proposed guidelines in March 1996, in the hope of finding a middle ground position which could gain acceptance.

During a CONFU plenary session meeting in May 1996, all parties interested in electronic reserve systems were encouraged to discuss the proposed guidelines in an effort to explore whether widely acceptable guidelines were achievable. Subsequent discussions, however, again revealed significant differences of opinion among the working group's participants about the draft guidelines submitted March 5, 1996.

During the CONFU plenary session on September 6, 1996, there was a general consensus that the proffered Fair Use Guidelines for Electronic Reserve Systems had not received widespread acceptance at that time. While some participants expressed a willingness to endorse or adopt them,⁴⁵ other participants expressed their opposition to the proffered guidelines.⁴⁶ In discussion of whether the draft guidelines could be characterized as being an understanding of fair use by those organizations that endorsed them, there was a consensus that they were not widely supported at that time within CONFU. While acknowledging that some institutions may feel free to adopt and implement them, it was decided on November 25, 1996, that the proffered guidelines for electronic reserve systems would not be disseminated as a formal work product of CONFU.

At the CONFU plenary session meeting on May 19, 1997, it was concluded that, while the previously proffered guidelines for electronic reserve systems would not be included in a report on the conclusion of Phase One of CONFU, the issue of developing guidelines for electronic reserve systems could still be part of the discussion within the framework of CONFU should there appear to be substantial support among CONFU participants for reactivating the working group on this issue. The Steering Committee will monitor this issue during the next year and will coordinate with those participants who may wish to renew such discussions within the context of a working group.

E. INTERLIBRARY LOAN AND DOCUMENT DELIVERY

The working group met under the leadership of Mary E. Jackson, consultant to the Association of Research Libraries, and Dr. Douglas C. Bennett, Vice President of the American Council of Learned Societies, to discuss the issues involved both in digital interlibrary loan and document delivery activities and to attempt to draft guidelines. After considerable discussion, the working group unanimously agreed on March 27, 1996, that it was premature to draft guidelines for digital transmission of digital documents.

Subsequent discussions throughout the spring and summer of 1996, failed to achieve agreement on guidelines for digital delivery of print originals under interlibrary loan arrangements. After considerable discussion within the working group and in general plenary sessions, it was agreed by both the copyright owner and user communities that it was not possible, at this time, to draft widely acceptable guidelines for digital delivery of print materials by libraries.

At the CONFU plenary session meeting on May 19, 1997, it was decided that, while there had been agreement that it was not possible at this time to draft guidelines for digital delivery of print materials by libraries, the issue of developing guidelines for the digital delivery of print materials by libraries could still be part of the discussion within the framework of CONFU should there appear to be substantial support among CONFU participants for reactivating the working group on this issue. The Steering Committee will monitor this issue during the next year and will coordinate with those participants who may wish to renew such discussions within the context of a working group.

F. USE OF COMPUTER SOFTWARE IN LIBRARIES

After plenary discussions of the scenarios developed by Sarah K. Wiant, the Director of the Law Library at Washington and Lee University, who represented the Special Libraries Association, and Mark Traphagen, Vice President and Counsel for Intellectual Property and Trade Policy of the Software Publishers Association, it was generally agreed by CONFU participants that, since the scenarios developed by the working group clearly illustrated the general rules and how particular uses of computer program software in libraries either complied with or violated the Copyright Act, there was no need to draft guidelines.

Following several presentations of the statement and scenarios on the use of copyrighted computer programs (software) in libraries, and a thorough discussion and slight revision of the statement, the Statement on Use of Copyrighted Computer Programs (Software) in Libraries -- Scenarios⁴⁷ was adopted by CONFU participants on September 6, 1996.

During the plenary session meeting on November 25, 1996, participants agreed by consensus that the Statement amd Scenarios should be appended to the Interim Report. Subsequently, during the CONFU plenary session meeting on May 19, 1997, it was agreed by consensus that the Statement and Scenarios be included in a report on the conclusion of the first phase of CONFU.

G. SUMMARY

In summary, the CONFU process resulted in the development of proposed fair use guidelines for digital images, some aspects of fair use guidelines for distance learning, fair use guidelines for educational multimedia, and the adoption of a statement of scenarios dealing with the use of computer software in libraries. The proposed guidelines proffered by a minority of the working group on electronic reserve systems were not supported widely by CONFU participants. As for the digital transmission of documents in the context of interlibrary loan and document delivery activities by libraries, it was determined by the interested parties involved in the working group that it was premature to draft guidelines addressing this issue.

Copies of all notifications or statements of endorsement or opposition to the three sets of proposals for guidelines, together with all comments from individuals, received by this facilitator, are appended to this report. As additional notifications or comments on the guidelines are received by the facilitator, they will be posted on the U.S. Patent and Trademark Office website.

III. RESULTS

1. It was agreed by the participants at the CONFU plenary session meeting held on May 19, 1997, that a Report to the Commissioner on the Conclusion of the First Phase of the Conference on Fair Use will be written by the facilitator, that said Report will include the three sets of guidelines for digital images, distance learning, and educational multimedia and all statements and comments received concerning them, and that said Report would be made available and published in both hard copy and electronic form to all CONFU participants and the public.

2. It was agreed by the participants at the CONFU plenary session meeting held on May 19, 1997, that in connection with the Proposed Educational Fair Use Guidelines for Digital Images, a use period of at least one year will be instituted for their voluntary adoption, implementation, and review by interested institutions. During this use period the Digital Images Working Group will meet periodically to address the various concerns, observations, and criticisms received in connection with the proposed guidelines, and to discuss and negotiate possible refinements of the guidelines with the goal of achieving broad-based support and endorsement of the guidelines. A report by the Working Group on its activities and the results of the use period will be made at a meeting on May 18, 1998.

3. It was agreed by the participants at the CONFU plenary session meeting held on May 19, 1997, that in connection with the Proposed Educational Fair Use Guidelines for Distance Learning, the membership of the current Distance Learning Working Group would be expanded to include academic and educational institutions directly involved in distance learning activities. During the next year, the Distance Learning Working Group will continue to meet periodically to address the various concerns, observations, and criticisms received in connection with the proposed guidelines, to discuss and negotiate the development of guidelines for asynchronous network delivery of distance learning courses, and to discuss and negotiate possible refinements of the proposed guidelines with the goal of achieving broad-based support and endorsement of the guidelines. A report on the working group's activities will be made at a meeting on May 18, 1998.

4. It was agreed by the participants at the CONFU plenary session meeting held on May 19, 1997, that the Steering Committee be expanded to eleven members. Following a discussion on the need to expand the Steering Committee in such a way as to make it more representative of both the copyright owner and user communities, the following individuals were elected by consensus to serve on the expanded Steering Committee: Christine Dalziel, American Association of Community Colleges and the Instructional Communications Council; Adam M. Eisgrau, American Library Association; Mary B. Levering, U.S. Copyright Office, Library of Congress; Lisa Livingston, Consortium of College and University Media Centers; Victor S. Perlman, American Society of Media Photographers; Carol Risher, Association of American Publishers; Judith M. Saffer, Broadcast Music, Inc.; Mark Traphagen, Software Publishers Association; Laila van Eyck, National Association of State Universities and Land-Grant Colleges; John C. Vaughn, Association of American Universities; and Patricia Williams, American Association of Museums.

5. It was agreed by the participants at the CONFU plenary session meeting held on May 19, 1997, that CONFU remains committed to fostering a dialogue on all fair use issues, including browsing, electronic reserves, interlibrary loan and document delivery, even though proposals concerning these issues have not been developed fully to date nor been widely accepted by participants.

6. It was agreed by the participants at the CONFU plenary session meeting held on May 19, 1997, that a meeting would be convened on May 18, 1998, to receive reports from the continuing working groups on their activities, to receive a report from the Digital Images Working Group on the voluntary use period initiated in connection with the proposed fair use guidelines for digital images, to review the experiences of institutions that have implemented the fair use guidelines for educational multimedia, and to assess the progress, if any, in drafting more comprehensive fair use guidelines for distance learning, as well as toward achieving greater acceptance in the copyright owner and user communities for the three sets of fair use guidelines.

IV. CONCLUSION

CONFU is an extraordinary public-private effort, requiring many days of meetings and travel since its inception in September 1994. Many organizations, from both the public and private sector, and especially a large number of nonprofit organizations, have devoted substantial human and financial resources and have made significant sacrifices to participate in the CONFU effort to develop fair use guidelines for educational and library uses of copyrighted works in a digital environment. The total investment of time, resources, and sustained participation by those involved cannot be measured fully.

Some organizations approached CONFU initially in the belief that there was little chance of reaching agreement on guidelines. Others expressed their misgivings and skepticism as to whether such a negotiating process could yield substantial and meaningful results. Yet, most participants feel that it is both a beneficial forum for discussion and an instructive and productive endeavor for those interested in fair use issues, even when the good faith efforts and best intentions of the participants have not always resulted in a meeting of minds.

Now that CONFU has concluded its first phase of activity, and has placed three sets of guidelines in the world for public debate, discussion, endorsement, and implementation, as institutions and organizations see fit, it now necessarily moves into a new phase of existence. Much the way an engineer, after spending time and energy to build a model of his or her invention, must now use it to see if it works, making refinements or changes where necessary to improve its functioning, so, too, does CONFU now need to encourage the implementation and use -- the experimentation, if you will -- of the guidelines to see how they work in the classrooms, libraries, and media centers where they are needed, and, ultimately, where their value as workable guidelines will be assessed.

It is true that not all CONFU participants support the three sets of guidelines. Indeed, some CONFU participants strongly oppose them, while others strongly support them. It can fairly be said that the CONFU process of developing fair use guidelines has amply proven the truth of the old adage that reasonable minds can disagree. That is why this Report, therefore, contains all statements and comments received in connection with the three sets of guidelines, so that such information and opinions may be included in one's own assessment of the value of the guidelines.

As CONFU moves into its next phase, there may not be agreement among all participants as to the value and viability of the guidelines so far produced, but there does appear to be wide-spread support among participants for continuing a dialogue on fair use issues with an ultimate goal of developing broad-based agreement, at the very least, on principles and practices, if not guidelines, in the copyright owner and user communities. Should this happen, this accomplishment alone will have proven the worth of CONFU as a valuable and important contribution to the appreciation of fair use in the rapidly expanding digital environment in which we live.

FOOTNOTES

¹See Exec. Order No. 12864, 3 C.F.R. 634 (1993).

²Information Infrastructure Task Force, National Telecommunications and Information Administration, National Information Infrastructure: Agenda for Action (1993).

³Information Infrastructure Task Force, Global Information Infrastructure: Agenda for Cooperation (1995).

⁴For a ist of participating agencies, see Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (1995) [hereinafter "WHITE PAPER"] at App. 3.

⁵See Request for Comments on Intellectual Property Issues Involved in the National Information Infrastructure Initiative, 58 Fed. Reg. 53,917 (1993).

⁶See Information Infrastructure Task Force, Working Group on Intellectual Property Rights, Intellectual Property and the National Information Infrastructure: A Preliminary Draft of the Report of the Working Group on Intellectual Property Rights (1994) [hereinafter "GREEN PAPER"].

⁷See Notice of Hearings and Request for Comments on Preliminary Draft of the Report of the Working Group on Intellectual Property Rights, 59 Fed. Reg. 42,819 (1994); Extension of Deadline for Comments on Preliminary Draft of the Report of the Working Group on Intellectual Property Rights, 59 Fed. Reg. 50,222 (1994).

⁸See GREEN PAPER, supra note 6, at 133.

⁹Id. at 134.

¹⁰See Notice of First Meeting of Conference on "Fair Use" and the National Information Infrastructure (NII), 59 Fed. Reg. 46,823 (1994).

¹¹See WHITE PAPER, supra note 4, at 83.

¹²See CONFERENCE ON FAIR USE PARTICIPANTS infra Appendix A.

¹³This was accomplished by having an attorney-advisor in the Office of Legislative and International Affairs of the Patent and Trademark Office act as an executive secretary for the Conference on Fair Use. From September 1994 to July 1995, Christopher A. Meyer served in this capacity; from September 1995 to the present, Peter N. Fowler has served in that capacity and authored both this Report and the CONFU Interim Report in December 1996 .

¹⁴The initial Steering Committee members were: Stan Cahill, Public Broadcasting System; Carol C. Henderson, American Library Association; Mary B. Levering, U.S. Copyright Office, Library of Congress; Carol A. Risher, Association of American Publishers; and Mark Traphagen, Software Publishers Association. In late 1995, Carol Henderson designated Adam M. Eisgrau as her replacement, and Stan Cahill ceased being an active participant on the Steering Committee.

¹⁵See WHITE PAPER, supra note 4, at 7.

¹⁶The Copyright Act of 1976, as amended, is codified at 17 U.S.C. ' 101 et seq. (1994). Hereinafter, the Act is cited as "17 U.S.C. ' ___" or "17 U.S.C.A. ' ___ (WEST SUPP. 1996)."

¹⁷See H.R. REP. NO. 1476, 94th Cong., 2d Sess. 47 (1976), reprinted in 1976 U.S.C.C.A.N. 5659 [hereinafter HOUSE REPORT].

¹⁸See 17 U.S.C.A. ' 107 (WEST SUPP. 1996); see also, 3 NIMMER ON COPYRIGHT ' 13 (1993). There are a number of websites devoted to copyright and fair use issues, see, e.g., Stanford University Copyright and Fair Use Site (http://www.fairuse.stanford.edu) or University of Virginia Law Library Copyright and Fair Use Site (http://www.gopher.lib.virginia.edu).

¹⁹17 U.S.C. ' 107 (1994).

²⁰See WHITE PAPER, supra note 4, at 16.

²¹See WHITE PAPER, supra note 4, at 80.

²²17 U.S.C.A. ' 107 (WEST SUPP. 1996).

²³17 U.S.C. ' 108 (WEST SUPP. 1996).

²⁴17 U.S.C. ' 110 (WEST SUPP. 1996).

²⁵See Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions [hereinafter "CLASSROOM GUIDELINES"], contained in HOUSE REPORT, supra note 17, at 68-74, reprinted in 1976 U.S.C.C.A.N. 5681-88.

²⁶See Guidelines for Educational Use of Music, contained in HOUSE REPORT, supra note 17, at 70-71, reprinted in 1976 U.S.C.C.A.N. 5684-85.

²⁷See CONTU Guidelines on Photocopying Under Interlibrary Loan Arrangements, contained in REPORT OF THE CONFERENCE COMMITTEE ON THE NEW COPYRIGHT LAW (H.R. No. 1733, 94th Cong., 2d Sess., at 71-73) reprinted in 1976 U.S.C.C.A.N. 5812-14.

²⁸See Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes, contained in HOUSE REPORT ON PIRACY AND COUNTERFEITING AMENDMENTS (H.R. No. 495, 97th Cong., 1st Sess. at 8-9), reprinted in U.S. COPYRIGHT OFFICE, Reproduction of Copyrighted Works by Educators and Librarians (Circular 21) (1992) p. 26.

²⁹See GREEN PAPER, supra note 7, at 134.

³⁰See WRITTEN STATEMENTS SUBMITTED TO CONFU infra Appendix B.

³¹See SUMMARY OF INITIAL PROPOSED PRINCIPLES infra Appendix C.

³²See CLASSROOM GUIDELINES contained in HOUSE REPORT, supra note 17, at 68-74, reprinted in 1976 U.S.C.C.A.N. 5681-88.

³³See note 27 supra and accompanying text.

³⁴See TOPIC AND ISSUE PAPER PRESENTERS infra Appendix D.

³⁵See TOPIC GRID infra Appendix E.

³⁶The Working Groups were: DIGITAL IMAGES, DISTANCE LEARNING, EDUCATIONAL MULTIMEDIA, ELECTRONIC RESERVE SYSTEMS, INTERLIBRARY LOAN/DOCUMENT DELIVERY, and SOFTWARE USE IN LIBRARIES.

³⁷See PARTICIPANTS IN THE MEETING ON THE FAIR USE OF MUSIC MATERIALS IN A DIGITAL ENVIRONMENT, infra Appendix F.

³⁸Inasmuch as no copyright legislation was under active consideration at that time by Congress, the CCUMC Working Group on Educational Multimedia sought the endorsement of the guidelines by the Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, U.S. House of Representatives, which adopted a Nonlegislative Report Relating to the Fair Use Guidelines for Educational Multimedia (September 27, 1996).

³⁹See UNIFORM PREAMBLE FOR FAIR USE GUIDELINES infra Appendix G.

⁴⁰The official U.S. Patent and Trademark Office website is available at: http://www.uspto.gov.

⁴¹See NOTIFICATIONS RECEIVED FROM ORGANIZATIONS AND INSTITUTIONS CONCERNING THE PROPOSALS FOR FAIR USE GUIDELINES infra VOLUME TWO.

⁴²See PROPOSED EDUCATIONAL FAIR USE GUIDELINES FOR DIGITAL IMAGES infra Appendix H.

⁴³See PROPOSED EDUCATIONAL FAIR USE GUIDELINES FOR DISTANCE LEARNING infra Appendix I.

⁴⁴See FAIR USE GUIDELINES FOR EDUCATIONAL MULTIMEDIA infra Appendix J.

⁴⁵The following organizations are on record as endorsing or supporting the proffered Fair Use Guidelines for Electronic Reserve Systems: American Association of Law Libraries, American Council of Learned Societies, Association of American University Presses, Inc., Indiana Partnership for Statewide Education, Music Library Association, National Education Association, National School Boards Association, and Special Libraries Association.

⁴⁶The following organizations are on record as opposed to the proffered Fair Use Guidelines for Electronic Reserve Systems: American Society of Composers, Authors and Publishers, American Society of Journalists and Authors, American Society of Media Photographers, Association of American Publishers, Association of Research Libraries, Authors Guild/Authors Registry, Recording Industry Association of America, and Software Publishers Association.

⁴⁷See STATEMENT ON USE OF COPYRIGHTED COMPUTER PROGRAMS (SOFTWARE) IN LIBRARIES --SCENARIOS infra Appendix K.

Last Modified: 30 September 1997