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Dear colleagues,

Please permit me a follow-up to my posting yesterday concerning the CONFU
process.

I now have in front of me a 35-page fax consisting of the "Draft Report to
the Commissioner ... on the conclusion of the conference on fair use" along
with a cover memo by Peter Fowler (dated 11/6/96) addressed to CONFU
participants and attendees.  The subject heading of this memo reads:
"Request for comments on proposed final report and notice of final meeting
location/date."  The Draft Report itself is 14 pages long.  Appended to it
is a list of "Conference on Fair Use Participants" as well as a whole series
of other documents (some, e.g. Appendix 12 on e-reserves, actually represent
aborted efforts at producing guidelines).

Mr. Fowler's cover memo says that "the deadline for comments on the Draft
... is extended to Monday, November 18, 1996.... The Revised Draft Report
will be available for final comment and the submission of organizational
endorsements of guidelines on November 25, 1996, at the [final plenary]
CONFU meeting."  Mr Fowler expresses his anticipation that, depending upon
the volume of comments, the Final Report will be published sometime in early
January.  (This suggests to me that our several professional organizations
may express their opinion of this Draft Report by 11/18 and their
endorsement--or repudiation--of the digital image guidelines on [or after?]
11/25.  It is not clear whether there is a deadline for submitting such
final organizational opinions.)

Now my principal concern is that this Draft Report concludes with three
"recommendations," which I will quote verbatim in their entirety for their
general interest:

"1. That this Report and Guidelines be agreed to by the CONFU participants
be submitted to Congress at an appropriate time as part of legislative
history so that they can be referenced in connection with the Copyright Act
provisions on fair use.

2. That the Working Group on Intellectual Property Rights of the Information
Infrastructure Task Force, or another appropriate federal government body,
should consider convening another conference on fair use within five years
to address both those areas of concern where participants did not, or were
unable to, reach agreement on fair use guidelines and any other concerns
regarding fair use at that time.

3.  That the Working Group on Intellectual Property Rights of the
Information Infrastructure Task Force make this Report available to the
public to publicize the results of CONFU to the copyright owner, user,
educational, institutional, and library communities."

As I read the first of these recommendations to the Commissioner of Patents,
the several CONFU guidelines would be "submitted to Congress ... as part of
legislative history" NOT because the several organizations whose
representatives participated in drafting them have endorsed the guidelines,
but merely because (unlike, e.g., the ILL and reserves groups) the
participants did eventually manage to produce draft guidelines!  Surely this
endows organizational representatives (whose final product has yet to be
vetted by the organizations they represent) with an improper degree of
responsibility.

One gathers from Mr Fowler's cover memo that the final report is envisioned
as indicating which organizations did ultimately endorse the guidelines.
Would dissent also be registered?  If so, how?  Expressly or by simple
omission of the dissenting organization's name from the list of endorsers?
Will dissenting organizations be permitted to submit a statement that would
be recorded officially along with the guidelines they repudiate as part of
"legislative history"?

This, it seems to me, speaks to a concern many of us have raised all along,
i.e. that the guidelines would gain a life of their own and attain an
unwarranted de facto legal status as part of "legislative history," that is,
that they would be "referenced in connection with the Copyright Act
provisions on fair use"--to quote the Draft Report's recommendation again.

Max Marmor
Yale Library