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Error - unable to initiate communication with LISTSERV (errno=10061, phase=CONNECT, target=127.0.0.1:2306). The server is probably not started. ----------------------------Original message---------------------------- This is a copy of the rather detailed, item by item, response I wrote on the first day that I read the CONFU draft. Since then, my conclusion is that the document is full of contradictions, and reads like an unfinished compromise document of people with differing points of view. If thumbnails have no commercial value, as the document states, then why being securing permission for their use? Where are the guidelines for the use of larger digital images? What about the underlying legality of copy photography slides acquired under fair use? Where is fair use, anyway? Anyway, below is my first take for those who are interested in this topic. Maryly Snow UCBerkeley slides@ced.berkeley.edu > > > > I have just finished my first read through of the > > CONFU draft. It appears very thorough, thoughtful, > > and reasonable generally. It appears better than I > > thought it would after hearing about the current state > > of the discussion in February. But so much depends on > > interpretation. I certainly don't feel ready to sign > > off on it yet. > > > > I have some comments questions that may reveal the actual state > > of my dull brain, so I will try not to be embarrassed in > > expressing my questions. > > > > 1.1 Preamble. It is not clear from the Preamble that > > "educators...who wish to use copyrighted digital images" include > > "creation and use of digital image archives" from 1.2. At first > > glance it appears that the guidelines exist only for use and not > > also for creation. But the rest of the document makes clear that > > it is also discussing creation. Can the second sentence be > > modified to read "...educations, scholars, and students who > > wish to create and/or use copyrighted digital images" > > > > 1.2 Background. Paragraph 4. Refers to "a secure online catalog > > of thumbnail images". If one is to engage in the time consuming > > task of undertaking reasonable inquiry for permission, should not > > a larger resolution image also be permissible? We have many > > thumbnails which are indecipherable without looking at a larger > > scale image. In our system, we use thumbnails AND a larger scale > > image. Our larger scale image could be considered "small > > scale, typically low resolution". It is used to enable visual > > identification of records. Clarification on larger than thumbnail but > > still small scale, low resolution images? > > > > This leads me to consider the question of classroom projection. > > If I have made reasonable inquiry to obtain permission in the > > five years transitional period of time, and have not located the rights hold > > may I be able to project these larger than thumbnail images into > > classrooms? The CONFU draft does not address this issue at all. I > > assume intentionally. Too sticky? I hope this does not mean that > > signing off on this draft will PRECLUDE classroom projection or > > PRECLUDE use of images larger than thumbnails but still small scale > > and low resolution. > > > > 1.4 Applicability. Second paragraph. First sentence: "These > > guidelines apply to the creation and use without permission > > of lawfully acquired copyrighted digital images". This seems > > to be a redundant, confusing sentence. If you have made a digital > > copy of an image without permission, would it be lawfully acquired? > > If you have made a lawfully acquired analog copy (slide) under fair use, > > is the digital copy lawfully acquired? Probably not. Then the > > guidelines don't apply. The problem is in the linkage > > of the terms "creation" "lawfully acquired" and "digital images". > > I read this sentence to mean that if I have purchased a digital image, > > then I don't need permission to create or use it. I certainly don't > > need permission to use it if I bought it, and I wouldn't need permission` > > to create it if I bought it. That one sentence confuses my brain. You can > > remove the term "creation" and the meaning changes. You can > > change the term "lawfully accquired" and the meaning changes again. Maybe > > more sentences are needed. Am I the only person who gets confused > > by this sentence? > > > > 1.4 Applicability. Last paragraph defines lawfully acquired, but does not > > include the term, "fair use". Does this mean that the CONFU draft > > does not consider "fair use" lawful? I think this is possibly the lynchpin > > in the entire debate. If CONFU or this document can be read in such as > > way that fair use does not constitute lawful acquisition, then it can only > > mean unlawful acquisition, which ignores fair use. Yet the title > > of the draft and the preamble discuss fair use. > > That last paragraph under 1.4 seems like > > compromise language: those who believe fair use is lawful can think > > what they want, and those that believe fair use is unlawful can think > > what they want. The statement under 2.1 about the uncertainty of > > lawfully acquired status might require more amplification on this, or at > > the least, a "see 2.1 second paragraph" reference from 1.4 last paragraph > > to 2.1 second paragraph. If CONFU feels that fair > > use does not constitute a lawful method of acquisition, I would feel > > compelled to urge both ARLIS and VRA to not sign the draft. > > > > 2.1 Images in Pre-Existing Collections. > > The term "Simultaneously" can be narrowly or broadly interpreted. Does > > it mean "At the moment I scan a slide", or "the moment I intend to scan > > a slide," or the moment I have finished scanning a slide"? > > Which of these is simultaneously? I think a similar term is > > "concurrently." The advantage of "concurrent" is that it carries a broader > > time connotation, more akin to within the same week or month, rather > > than simultaneously which carries an connotation akin to within the > > same minute or hour. > > > > What if the image was acquired under fair use and the source is known? > > Then a letter should go out to the publisher of the book or periodical > > to comply with reasonable inquiry. Correct? What is to prevent publishers > > from demanding fees for images for which they do not hold the rights? > > > > Last sentence 2nd paragraph advises that the next step after reasonable inqu > > is to seek advice of institution's counsel: very troubling, and possibly > > conflicting with 4.3. CONFU has > > taken so much time and effort to spell everything out in great detail, only > > to through us back on the legal interpretation of individual legal counsel > > which varies from institution to institution, from counsel to counsel > > within an institution. We would end up with a > > similar situation to fair use copying today, where one counsel says > > "okay, no problem"; another says "what have you done to contact the > > rights holder?"; another says "let's pursue it further"; another says > > "no way, jose! Dump off those files!" One educator dependent upon > > one counsel. > > > > This imperative to seek legal counsel does not seem to be consistent > > with 4.3 Time Limitations, which states that after the 5 year transition > > period the images may be used if, after a reasonable inquiry the > > educational institution is unable to identify > > sufficient information to seek appropriate permission. > > > > There appears to be some murky water between 3.2 Student Use of Images and > > 6.3 Notice of Use Restrictions. There isn't any conflict between these > > two sections per se, but I can see many students reading and ignoring > > the Use Restriction because the line between class assignment and personal > > use is very, very thin. I can imagine a statement like this: > > > > University educators and students are advised > > that digital images in the online catalog can not be downloaded, > > printed, shared, or modified unless needed for an educational assignment o > > classroom project. No images in the online catalog may be used for > > publication without written permission from the copyright holder. > > > > I imagine the student either ignoring the distinction between personal > > use and educational use. But this is probably analogous to the > > notices on copy machines in libraries, especially higher education libraries > > warning that photocopying can only be for personal use. But digital > > images can only be for academic use, not personal use. Confusing? > > > > Maryly Snow > > UC Berkeley > > slides@ced.berkeley.edu > > > >