THE CONFERENCE ON FAIR USE





AN INTERIM REPORT
TO THE COMMISSIONER




BRUCE A. LEHMAN
ASSISTANT SECRETARY OF COMMERCE AND
COMMISSIONER OF PATENTS AND TRADEMARKS

AND

CHAIR, WORKING GROUP ON INTELLECTUAL
PROPERTY RIGHTS OF THE INFORMATION
INFRASTRUCTURE TASK FORCE




DECEMBER 1996


INTRODUCTION

In 1993, President Clinton formed the Information Infrastructure Task Force (IITF) to articulate and implement the Administration's vision for the National Information Infrastructure (NII), and established the U.S. Advisory Council on the National Information Infrastructure within the Department of Commerce to advise the Secretary of Commerce on a national strategy for promoting the development of the NII 1. The IITF is chaired by the Secretary of Commerce and consists of high-level representatives of the Federal agencies that play a role in advancing the development and application of information technologies. Guided by the principles for government action described in NII Agenda for Action2 and GII Agenda for Cooperation 3 , the participating agencies worked with the private sector, public interest groups, Congress, and State and local governments to develop comprehensive telecommunications and information policies and programs that will promote the development of the NII and best meet the needs of the country.

The IITF is organized into three committees: the Telecommunications Policy Committee, the Committee on Applications and Technology, and the Information Policy Committee. The Working Group on Intellectual Property Rights (hereinafter "Working Group"), chaired by Assistant Secretary of Commerce and Commissioner of Patents and Trademarks Bruce A. Lehman, was established within the Information Policy Committee to examine the intellectual property implications of the NII and to make recommendations on any appropriate changes to U.S. intellectual property law and policy.4

Following a public hearing in November 19935, and review and analysis of both solicited written comments and extensive public comments submitted, the Working Group released a preliminary draft of its report ("Green Paper") on July 7, 19946. Following release of the Green Paper, the Working Group heard testimony from the public in four days of hearings in Chicago, Los Angeles, and Washington, D.C., in September 1994. 7

The Green Paper expressed significant concerns over the ability of the limitations on copyright owners' exclusive rights, particularly those contained in the fair use provisions of the Copyright Act, to provide the public with adequate access to copyrighted works transmitted digitally. 8 While recognizing that the principles underlying the guidelines for library and educational use of printed matter and music should still apply, the Working Group believed it would be "difficult and, perhaps, inappropriate, to apply the specific language of some of those guidelines in the context of digital works and on-line services." 9

The Working Group convened a Conference on Fair Use (CONFU) to bring together copyright owner and user interests to discuss fair use issues and, if appropriate and feasible, to develop guidelines for fair uses of copyrighted works by librarians and educators.10 At the time of issuance of the Report of the Working Group on Intellectual Property Rights (hereinafter "White Paper"),11 in September 1995, CONFU was still meeting and had not concluded its work.

Meeting regularly in public sessions, CONFU grew from the forty groups which were invited to participate in the first meeting on September 21, 1994, to the more than ninety-five organizations participating as of November 1996.12 The Working Group has facilitated meetings and coordinated the flow of information for CONFU13, and a five-person Steering Committee, selected by the participants, acted as the formal structure guiding the CONFU process. 14

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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 unlawful21.

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 use, 22library copying,23 and educational use 24provisions 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 purposes, 26 the copying of relatively recent journal articles by one library for a patron of another,27 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.

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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 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, were considered part of the CONFU process.

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 and scenarios laid the foundation for informed discussion before participants turned to the subject of drafting various guidelines. The topic presentations and discussions allowed participants to decide which topics were appropriate for guidelines, and how to deal with them, if at all, in the process of drafting guidelines. Furthermore, the topic discussions allowed participants to decide which topics should be explored as scenarios and which were useful solely as background.

Following presentations on twenty-one different topics34, 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, 35provided 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 appropriate representatives of rightsholders and educational and library users, emerged to draft and negotiate fair use guidelines in five specific areas and a statement of scenarios on the use of software in libraries.

These working groups met and negotiated throughout 1995 and most of 1996, running concurrently 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 this 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 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.

On May 30, 1996, participants agreed to adopt for all sets of guidelines the uniform preamble,38 which had been drafted and coordinated by Mary Berghaus 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, attaching any resulting guidelines, should be prepared with advice and comment from the CONFU Steering Committee.

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RESULTS and STATUS OF 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 guidelines which may be acceptable to a majority of participants. Others were not as successful in drafting 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. What follows, then, is a summary of the work on the various 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 (CAA) meeting in April 1995, in New York, convened by Barbara Hoffman, CAA counsel. 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 working group was reorganized under the leadership of Patricia Williams of the American Association of Museums, with the assistance of Anita DiFanis of the Association of Art Museum Directors, and others, including, Mary Levering of the U.S. Copyright Office, Hope O'Keeffe of the National Endowment for the Arts, and Victor S. Perlman, General Counsel of the Association of Media Photographers, with more than twenty participating organizations providing support and guidance to this expanded process. This 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 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 not 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 to submit these for consideration as a proposal for fair use guidelines for digital images. 39


B.   Distance Learning

The working group met under the leadership of Laura Gasaway, Director of the Law Library at the University of North Carolina, representing the Association of American Universities, to discuss the issues involved in distance learning activities and to draft guidelines.

After considerable discussion, the working group determined that at this time 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 not to asynchronous delivery of distance learning over a computer network. Although participants in the working group believe that fair use applies in some aspects of such instruction, they did not develop fair use guidelines to cover these situations because they felt that the area was still unsettled, in that the technology is rapidly developing, 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.

The purpose of the Educational Fair Use Guidelines for Distance Learning is to provide guidance on the application for 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 with certain restrictions. 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. On November 25, 1996, it was decided to submit these for consideration as a proposal for fair use guidelines for distance learning.40


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 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 a Final Report. Some organizations which participated in CONFU are opposed to the Guidelines,41 and others have endorsed them. As with other 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 these for consideration as a proposal for fair use guidelines for educational multimedia.42


D.   Electronic Reserve Systems

The working group met under the leadership of Kenneth D. Crews, Director, Copyright Management Center, Indiana University-Purdue University at Indianapolis, representing the Indiana Partnership for Statewide Education, Laura Gasaway, Director of the Law Library at the University of North Carolina, representing the Association of American Universities, Douglas Bennett of the American Council of Learned Societies, Carol Risher, Vice President of Copyright and New Technology, Association of American Publishers, and Mary Jackson of the Association of Research Libraries, 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 about the draft guidelines dated 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 this time. While some participants expressed a willingness to endorse or adopt them,43 other participants expressed their opposition to the proffered guidelines44. In discussion of whether the draft guidelines could be characterized as being an understanding of fair use by those organizations which endorsed them, there was only a consensus that they were not widely supported at this time within CONFU. On November 25, 1996, it was decided to not submit these for consideration as a proposal for fair use guidelines for electronic reserve systems.


E.   Interlibrary Loan and Document Delivery

The working group met under the leadership of Mary Jackson of the Association of Research Libraries, and Douglas Bennett 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 by 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.


F.   Use of Computer Software in Libraries

After plenary discussions of the scenarios developed by Sarah K. Wiant, Director of the Law Library, Washington and Lee University, representing the Special Libraries Association, and Mark Traphagen, Vice President and Counsel for Intellectual Property and Trade Policy, 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. On September 6, 1996, the Statement on Use of Copyrighted Computer Programs (Software) in Libraries -- Scenarios45 was adopted by CONFU participants. On November 25, 1996, it was decided that this Statement should be appended to the Interim Report.


G.   Summary of Guidelines

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

Some organizations and entities participating in the development of the various proposed guidelines have endorsed one or more of the draft fair use guidelines developed during the past two years. Many have indicated that they plan to submit them to their respective boards or memberships for consideration, which may or may not lead to their endorsement. As this process occurs, and through distribution of this report, copyright owners, educators, librarians, and users throughout the country will become more aware of the work of CONFU participants.

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III.   CONCLUSION

CONFU was an extraordinary public-private effort, requiring many days of meetings and travel during its more than two years of existence. Many organizations, from both the public and private sector, and especially many nonprofit organizations, devoted substantial human and financial resources, and made significant sacrifices, to participate in the CONFU effort to create fair use guidelines. The investment of time, resources, and sustained participation cannot be measured.

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, by its conclusion, felt that it had been an instructive and productive endeavor, even when the participants' good faith efforts and best intentions did not always result in a meeting of minds. If, as Gandhi observed, honest disagreement is a good sign of progress, then CONFU made good progress in the understanding and appreciation of fair use in a digital environment. While George Bernard Shaw was convinced that "all progress depends on the unreasonable man," CONFU made progress in dealing with fair use issues precisely because many dedicated people acted reasonably, knowing that their work was important, not only to them, but to many others not directly involved in the effort.

Finally, CONFU serves as a reminder that the art of progress in a democracy, to paraphrase Alfred North Whitehead, is to preserve order amid change and to preserve change amid order. In doing the work it was brought into being to do, CONFU did both admirably, and all parties involved -- copyright owners, educators, librarians, publishers and users -- will benefit because of it.

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IV.    RECOMMENDATIONS [Adopted November 25, 1996]

1. That a period for review and endorsement of the proposals for guidelines be established, ending May 19, 1997, during which time the working groups and Steering Committee shall continue in existence.

2. That this Interim Report be made available electronically and in hard copy to CONFU participants and the public during the endorsement period.

3. That statements endorsing or opposing the proposed guidelines be directed to the CONFU facilitator during said period, with a copy to the appropriate working group, so that CONFU may consider which guidelines have received wide spread endorsement in determining whether to adopt such guidelines as CONFU Fair Use Guidelines.

4. That a Final Report be published at some point after May 19, 1997, containing all adopted guidelines and a listing of all entities endorsing or opposing said guidelines.

5. 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.

6. That the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force, or another appropriate federal government body, should consider convening another conference on fair use within five years to address both those areas of concern where participants did not, or were unable to, reach agreement on fair use guidelines and any other concerns regarding fair use at that time.

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Footnotes

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

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

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

4 For list 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.

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

6 See 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”).

7 See 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).

8 See GREEN PAPER at 133.

9 Id. at 134.

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

11 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”).

12 See list of CONFU Participants infra Appendix A.

13 This was done 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 CONFU. From September 1994 until July 1995, this was Christopher A. Meyer, and from September 1995 until the present, Peter N. Fowler has acted in that capacity and authored this report.

14 The Steering Committee members were: Stan Cahill of Public Broadcasting System, Carol C. Henderson of the American Library Association, Mary Berghaus Levering of the U.S. Copyright Office, Carol A. Risher of the Association of American Publishers, and Mark Traphagen of Software Publishers Association. In 1995, Adam M. Eisgrau replaced Ms. Henderson, and Stan Cahill became less active, on the Steering Committee.

15 See WHITE PAPER at 7.

16 The 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. ___.”

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

18 See 17 U.S.C. 107; see also, 3 NIMMER ON COPYRIGHT 13 (1993). For websites devoted to copyright and fair use issues, see, e.g., Stanford University Copyright and Fair Use Site at: http://fairuse.stanford.edu/; or the University of Virginia Law Library Copyright and Fair Use Site at: gopher.lib.virginia.edu.

19 17 U.S.C. 107.

20 See WHITE PAPER at 16.

21 See WHITE PAPER at 80.

22 17 U.S.C. 107.

23 17 U.S.C. 108.

24 17 U.S.C. 110.

25 See Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions (hereinafter “CLASSROOM GUIDELINES”), contained in HOUSE REPORT at 68- 74, reprinted in 1976 U.S.C.C.A.N. 5681-88. 26 See Guidelines for Educational Use of Music, contained in HOUSE REPORT at 70-71, reprinted in 1976 U.S.C.C.A.N. 5684-85.

27 See 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.

28 See 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) 26.

29 See GREEN PAPER at 134.

30 See list of Organizations Submitting Statements infra Appendix B.

31 See Summary of Initial Proposed Principles infra Appendix C.

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

33 See citation at supra n. 27.

34 See Topic and Issue Paper Presenters infra Appendix D.

35 See Topic Grid infra Appendix E.

36 The working groups were: Digital Images, Distance Learning, Educational Multimedia, Electronic Reserve Systems, Interlibrary Loan/Document Delivery, and Software Use in Libraries.

37 See list of Participants in Meeting on the Fair Use of Music Materials in a Digital Environment, which was held on April 26, 1996, at Columbia University, in New York, infra Appendix F.

38 See Uniform Preamble for All Fair Use Guidelines infra Appendix G.

39 See Proposal for Educational Fair Use Guidelines for Digital Images infra Appendix H.

40 See Proposal for Educational Fair Use Guidelines for Distance Learning infra Appendix I.

41 As of November 25, 1996, the following organizations are on record as opposed to the Multimedia Guidelines: American Library Association, Association of Research Libraries, National Association of Independent Schools, National Education Association, National School Boards Association, and the U.S. Catholic Conference.

42 See Proposal for Fair Use Guidelines for Educational Multimedia infra Appendix J.

43 As of November 25, 1996, the following organizations are on record as either endorsing or supporting the proposed Fair Use Guidelines for Electronic Reserve Systems: American Association of Law Libraries, American Council of Learned Societies, Association of American University Presses, Indiana Partnership for Statewide Education, Music Library Association, National School Boards Association, and Special Libraries Association.

44 As of November 25, 1996, the following organizations are on record as opposed to the proposed Electronic Reserve Guidelines: American Society of Composers, Authors & Publishers, American Society of Journalists and Authors, American Society of Media Photographers, Association of American Publishers, Association of Research Libraries, Authors Guild, Inc./Authors Registry, Inc., Recording Industry Association of America, and Software Publishers Association.

45 See Statement on Use of Copyrighted Computer Programs (Software) in Libraries--Scenarios infra Appendix K.