----------------------------Original message----------------------------
There has been considerable discussion about the Conference on Fair
Use (CONFU) proceedings regarding the use of digital images in
educational settings.  I believe there is a lot of confusion over the
principle of Fair Use and CONFU in general.  I hope to be able shed some
light on CONFU and the process involved.

I should initially state that I was asked to represent ARLIS by the Public
Policy Committee rather late in the game after many months of
discussions had already taken place.  The other members of the panel
include the counsels from a number of organizations like the NEA, NEH,
AAM, and representatives of publishing organizations, photographic
associations, and educational organizations (including ARLIS and VRA).
The discussion draft was (I hope) posted by Katy Poole.

The purpose of the Digital Images section is to reach some form of
agreement between the rights holders and the image users of what is
fair use of images.  It is important to realize that significant passages in
this document are based upon the U.S. Copyright Act.

The main issue of concern to this organization is the use and storage of
images and the development of image libraries.  This document stresses
the importance of obtaining permission to digitize images or to purchase
the already digitized images from the rights holders.  This draft
addresses issues of spontaneity in classroom use, as well as planned
acquisition.  It defines terms and tells what is permissible and what is
not.  It suggests that each institution review its policies with that
institution's counsel in order to insure that the rights holders are
protected and that educational use is not unduly hindered.  All institutions
that perform copy-photography or scan images should be applying the
four fair use factors from the Copyright Act (section 107).

Maryly Snow (UC Berkeley) has sent a long message pointing out areas
she disagrees with or feels more clarification is needed.  I will try to
address these points.  Each paragraph here relates to each of Maryly's
paragraphs.

1.  The purpose addressed in this document is the use of copyrighted
digitized images.  That means use in the classroom and in  independent
study and research as well as the retention of these images in an
electronic catalog.  The creation of original digital images is outside the
province of this document until these images are used by someone other
than the creator.  Then the process begins again and the four factors
are applied.  Creation of a digitized image from another format is
discussed in the body of the document, rather than the preamble.

2. Of course one should be able to retain a high resolution image as well
as a thumbnail... but all on the secure catalog.  When a curator obtains
the permission for digitizing the image, that request should  include
permission for the thumbnail as well.  The point being made in this
introductory paragraph is for the digitization of the images AND the
creation of a visual index of the collection by thumbnail image.

3. This is a bit outside of the document.  If after five years one has not
been able to locate the right holder of an image that one has already
scanned,  one uses the four factor analysis in determining fair use.  If
one has made their best efforts to obtain permission and has been
unable to locate the rights holder,  my personal opinion is that use is
permitted.  If one has located the rights holder and permission is denied,
one must remove the digitized image from the catalog and the collection.

4. If one makes a digital copy of an copyrighted image without permission
it is not lawfully acquired. If you have a lawfully acquired image (that is a
purchased image or  a copy-photography image for which permission
was acquired) one would need to get permission to digitize them.  If one
has a copystand image made under fair use, one would need to seek
permission to digitize it.... from the creator, the publisher, the estate of
the creator, the institution which may own the original image, etc.  Making
a digital image of an analog image without seeking permission does not
make the digital image lawfully acquired. If one has purchased a digital
image one can use it within the restrictions applied at the time of
purchase.   I'm not sure I see Maryly's point of confusion, but then
perhaps I do not have the distance needed to see the problem.

5.  This is a statement of the limitations of the guidelines and includes a
definition of lawfully acquired images  and what lawfully acquired
entails.  Of course fair use is lawful.  What is not lawful is an overly
broad, and often uniformed concept of what fair use is.  That is the crux
of this issue.

6.  According to the two dictionaries I consulted, Simultaneous and
Concurrent are synonyms.  This means that both could be narrowly or
broadly interpreted.  Logic would say that one would seek permission at
the same time, which would be within a brief yet reasonable period of
time.  Unless one has as many arms as Shiva it would be difficult to write
a letter and scan an image at the same, precise instant. I have no
problems with this word change but fail to see any gain by proposing it.

7.  If the source of an image is unknown (not listed in the photo credits in
the back of the book or as part of the caption)  a logical option would be
to write to the publisher asking for the address of the rights holder to the
image. Perhaps there is another source for the same image that one
could approach instead.  Publishers could easily be sued for asserting
rights to which that have no claim.

8.  There is no conflict between seeking counsel to clarify issues
pertaining to the digitization of an image collection and images previously
acquired under fair use and time limitations for use of images in
pre-existing collections.  It is regrettable that one feels compelled to seek
legal advise for what was once such a mundane matter.  Time have
changed.  Institutions and individuals are protecting their creative and
intellectual rights and we as responsible educators need to make sure
that we do violate what we do not own.  Time limitations should be
considered separately.  As it states in the document, if after five years
you have made your best efforts to acquire the rights and have been
unsuccessful, you can use it under fair use  (I'm sure we would all retain
the paper trail to back up any late challenges to our use by rights holders
who magically appear ten years later) .

9.  These issues are covered in other areas of the document.  Sections
3.2 and 6.3 actually compliment one another.  Student and educator use
are clearly spelled out in 3.2 and 3.3.  What section 6.3 does is help
enforce the restrictions of use and protect the institution from unlawful
use of the image.  Personal use of a downloaded image for
non-classroom-related work is not permitted under the principle of fair
use.


I will take Maryly's comments with me to the CONFU meeting tomorrow