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----------------------------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