Single copies of this Report, as well as the Interim Report of
December 1996, may be obtained, free of charge, by sending or
faxing a written request to:
c/o Richard Maulsby, Director
Office of Public Affairs
U.S. Patent and Trademark Office
Washington, DC 20231
fax: (703) 308-5258
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
and GII Agenda for Cooperation3, the participating
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 the solicited written comments and the extensive number
of public comments that were submitted, the Working Group released
a preliminary draft of its report (hereinafter "Green Paper")
on July 7, 1994.6 Following release of the Green Paper, the
Group heard testimony from the public in four days of hearings
in Chicago, Los Angeles, and Washington, D.C., in September
The Green Paper expressed significant concerns with 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 those
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 decided to convene 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
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 approximately one hundred organizations
participating as of May 1997.12 Since 1994, the Working Group
has facilitated plenary session meetings and coordinated the flow
of information for CONFU.13 A five-person Steering Committee,
selected in September 1994 by all CONFU participants, acted as
the formal structure guiding the CONFU process.14
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.
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
Before examining the work of CONFU, it is useful to examine the
statutory language concerning fair use. Section 107 of the Copyright
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
(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
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
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
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
of music for educational purposes26, the copying of relatively
journal articles by one library for a patron of another27, and
off-air videotaping of educational broadcast materials.28 The
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
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
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 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
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
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
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
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
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
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
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
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
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
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
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
to the proffered guidelines.46 In discussion of whether the
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
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
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.
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.
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.
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
1See Exec. Order No. 12864, 3 C.F.R.
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
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
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
34See TOPIC AND ISSUE PAPER
PRESENTERS infra Appendix D.
35See TOPIC GRID infra
36The Working Groups were: DIGITAL IMAGES,
DISTANCE LEARNING, EDUCATIONAL MULTIMEDIA, ELECTRONIC RESERVE
SYSTEMS, INTERLIBRARY LOAN/DOCUMENT DELIVERY, and SOFTWARE USE IN
37See PARTICIPANTS IN THE MEETING ON
THE FAIR USE OF MUSIC MATERIALS IN A DIGITAL ENVIRONMENT, infra
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
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
Last Modified: 30 September 1997