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Forwarded from the NINCH list.

Judy

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From:   INTERNET:[log in to unmask], INTERNET:[log in to unmask]
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Date:   5/23/97  6:09 PM

RE:     NINCH CONFU Report--Pt One


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NINCH ANNOUNCEMENT - NEWS BRIEF
May 23, 1997


CONFU CONTINUES?  Is it time to re-group?
-David Green


What in the world is CONFU (and how is it perceived around the rest of the
world)? This was one of the hotly debated questions during the advertised
"final meeting" of the Conference on Fair Use on May 19, 1997.

The winning answer is that CONFU is a loosely constructed framework called
for in 1995 by the President's Information Infrastructure Task Force's
Working Group on Intellectual Property Rights to enable copyright
proprietors and the educational users of copyright material to develop
guidelines for the fair use of copyrighted digital works.

CONFU, we heard emphasized, was not a Congressionally-mandated body (indeed
was not a body at all); the results and the forthcoming CONFU Report would
certainly not have the force of law or even the status of being read into
legislative history. CONFU is simply a discussion process, that is open to
all. Its Working Groups, which produced three sets of guidelines, are
similarly open to any who wanted (and could afford frequent travel to DC)
to attend.

So what occurred during the final meeting of this informal,
non-legislative, non-binding "conference"?

1.  Proposed guidelines, shared broadly since the previous final meeting of
CONFU among the constituencies of those represented, were presented to the
group as a whole with a list of those participating groups, which, after
two years of working together, had endorsed, rejected or had no position on
the guidelines (see list of organizations below).

Of 100 participants, only 60 registered a position on the guidelines and
only 25 had commented on the Digital Images or Distance Learning
Guidelines. Interestingly the commercial  proprietary community only
registered comments on the Multimedia Guidelines, which were the most hotly
contested. The mostly nonprofit user community objected in particular to
the Multimedia Guidelines use of specific portion limitations in the fair
use of copyrighted materials. This was not felt to be in the spirit of the
four fair use factors, where context and circumstance play a large part in
determining whether a use is fair.

2. It was clarified that CONFU--as a mere facilitating framework--would not
endorse or "adopt" any set of guidelines.  Peter Fowler, facilitator of the
process, should only include in his Report to the Commissioner of the
Patents and Trademarks Office what the resultant guidelines were and the
level and quality of support they had received.

3. It was clarified that Recommendation number 5 of Peter Fowler's December
1996 Interim  Report would be dropped. That recommendation was "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." This would not now take place.

4. It was determined that CONFU--the Framework--would continue beyond this
"final meeting." The framework had produced a certain body of results but
there was a determination to go "all the way" and see if consensus could be
achieved in creating generally acceptable guidelines. A date was set for
another plenary meeting a year ahead (May 19, 1998 at the Mumford Room at
the Library of Congress). An expanded Steering Committee (see Appendix Two)
would be formed to guide the process and determine the role of the 1998
meeting. In the interim, the working groups were encouraged to convene and
discuss further steps. The process and the working groups were encouraged
to be as inclusive as possible.

5. A Report would be published this summer. For those who had withheld
their positions and statements on the guidelines, the deadline was extended
to June 30.

6. The Guidelines (mostly endorsed by a minority of participants) were thus
accepted as interim documents, place-holders. Some advocated testing or
field use of the guidelines so that more concrete data might be gathered on
how fair, useable or burdensome they might prove to be.

7. Except for Multimedia Guidelines. The Consortium of College and
University Media Centers (CCUMC), chief organizer and facilitator of the
Multimedia working group, maintained that these guidelines were fixed and
would not be re-opened for "between 3 and 5 years." From the beginning, the
multimedia guidelines were seen by many as something of a wild child. CCUMC
had begun organizing guidelines before the CONFU process itself had
started; some took issue with the purported inclusivity of the group; and
the organizers had solicited the approval of members of Congress and other
external groups that no other working group had sought. In the words of
John Vaughn, the multimedia guidelines had been artificially reified by an
unprecedented and astonishing media blitz by the proponents.


Although some were figuratively horsewhipped for suggesting that CONFU
itself was confusing and that it had brought with it much unhelpful
political baggage from the IITF era, it seems clear to this writer that
CONFU clearly has been confusing to many and that its continuation or
resurrection under the same name might cause further misunderstanding or
misrepresentation of its authority.

Many within the nonprofit educational and cultural community are now
thinking that it is time  to step back and clarify what our community
values are in the arena of production, management and use of intellectual
property. What are some bedrock principles that could serve the nonprofit
community in the place of broadly accepted guidelines? Perhaps now is the
time for the educational community to more actively engage in a national
debate about principles and values as far as the production , management
and use of intellectual property is concerned. Some internal discussion and
agreement might be good for our collective spirit and to foster more
unified collective action when we next engage with the commercial
proprietors.

We should perhaps also consider whether, in the context of upcoming
Congressional action in ratifying the WIPO Copyright Treaty and pursuing
further digital copyright legislation, having attempted to play fair
through CONFU, it is time to reassert Fair Use at the legislative level.


This Report, available in hypertext with appendices, is available at
<http://www-ninch.cni.org/News/Confu_Report.html>

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