----------------------------Original message---------------------------- Forwarded from the NINCH list. Judy -------------Forwarded Message----------------- From: David Green, INTERNET:[log in to unmask] To: Multiple recipients of list, INTERNET:[log in to unmask] Date: 12/16/97 4:41 PM RE: SUMMARY REPORT ON NINCH COPYRIGHT MEETING-Nov. 12 NINCH REPORT December 16, 1997 Below is a five-page executive summary of an important meeting held for NINCH members and guests on November 12, 1997. A complete 10-page report is available at . ***************************************************************** THE ARTS & HUMANITIES, THE PUBLIC INTEREST & OUR NETWORKED FUTURE NINCH COPYRIGHT MEETING November 12, 1997 Executive Summary INTRODUCTION PROPOSALS PRESENTATIONS Copyright Legislation CONFU Licensing CONFU & MESL Fair Use Town Meetings Principles & Best Practices CONCLUSIONS INTRODUCTION Members of NINCH together with advisors and guest speakers outlined new areas for collective action on the copyright front at a NINCH Copyright Summit Meeting on November 12, 1997. These included fashioning a collaborative public education campaign that would demonstrate the importance of safeguarding Fair Use and the public domain in the digital environment as well as the critical value of balanced copyright legislation, all of which are currently threatened. At the meeting, participants first heard from key witnesses on copyright-related developments over the past two years. These included: copyright legislation; proposed new rights for protection of non-copyright material; the Conference on Fair Use (CONFU); the alternative creation by the public sector of "basic principles" and "best practices" in the use of copyright materials; the response of libraries to publishers' licensing of digital materials; and new, generous site-licensing projects within the nonprofit cultural community, between museums and universities. Building on these presentations, participants at the meeting then worked to create the components of a strategy that, forging links between efforts already afoot across the cultural community, could unite it in a pro-active position. PROPOSALS The principal suggestion was the creation of a task force to begin planning a national "Public Interest" campaign that would articulate at many levels (from the article to the soundbite) the critical value of balanced copyright law (including Fair Use and a robust public domain) for a healthy and creative cultural and economic life. Other components of the strategy include: * forming a task force to marshall stories from the community that demonstrate the value of balance between equitable access to material and reasonable cost recovery for owners, within a context framed by shared values and the centrality of Fair Use. The task force would create a webspace where members of the library, education, scholarly, and cultural community could post their own "Best Practice" documents that advise and guide constituents in fair and responsible use and management of intellectual property; * working with other groups to publicize the issues and stimulate discussion around balanced copyright legislation currently before Congress; and * organizing a coordinated response to the CONFU guidelines among NINCH members. Developments in this campaign will be reported on the NINCH listserv and elsewhere. A summary of the reports given at the NINCH Copyright Meeting is given below. A full report of the meeting is available at PRESENTATIONS The purpose of the NINCH Copyright Meeting was to review a cluster of inter-related intellectual property issues in order for the community to begin to develop consensus strategies for the future. Uncertainty about the future together with a defensive posture, has slowed down the potential momentum of bringing cultural heritage materials on to the networks. These intellectual property issues are vital to our enterprise of networking cultural heritage. If we lose this fight for a clear and good public policy, we can forget the vision we have of a vibrant cultural life on the Internet. *Legislation* The day began with a review by invited guest Professor Peter Jaszi of the development of copyright legislation since the 1710 Statute of Anne in England. He maintained that the initial growth both in the expansion of publishers' rights and of exemptions and limitations to those rights was made on the understanding that copyright had a clear public purpose: to safeguard an "information commons" for the public good. Especially since the 1976 Copyright Act, which codified Fair Use exemptions for the first time, Jaszi declared that publishers have been aggressively seeking to expand their rights at the expense of an understanding of the public good that was at the heart of copyright statute. Even though the Copyright Treaty that emerged from the WIPO deliberations in December 1996 re-stated the equal importance to the public good of exemptions and limitations to copyright as the rights themselves, the U.S. government's proposed legislation to implement that treaty ignores those critical aspects. Peter Jaszi noted in conclusion that the history of copyright legislation since 1710 was one of poorly organized resistance to an overall steady increase in copyright protection. In many ways, he registered the keynote of the meeting, which was the importance of educating a wider public about the public interest component of copyright and of protecting the public domain of cultural heritage materials as we move into the digital environment. Peter Jaszi together with Prue Adler, of the Association of Research Libraries, also spoke of other forms of extending rights over material: these included an attempt to create a new right in the compilation of material (as embodied in the "Collections of Information Antipiracy Act" (H.R. 2652) now before Congress) and the revision of the Uniform Commercial Code that threatens to give "click-through" licensing rights supremacy over exemptions such as Fair Use granted through federal copyright law. *CONFU* Several speakers described their experience with the Conference on Fair Use, both in itself and in relationship with an important experimental model developed for limited site licensing of museum images for educational use by higher education institutions (the Museum Educational Site Licensing project, or MESL). Douglas Bennett, former vice president of the American Council of Learned Societies, gave the main presentation on CONFU. Still theoretically interested in working on guidelines in certain areas, Bennett felt that the CONFU forum was now best left behind. Although there were moments of good faith negotiation, there was generally a mismatch between comparatively disorganized librarians representing the nonprofit sector on one side against specialized corporate copyright lawyers on the other. He also bore witness to the sense of Fair Use not being understood as a bona fide sharing of resources for the public good but rather as an obstacle for corporate lawyers to weave around as much as possible. Bennett agreed with others that the establishment of CONFU appeared to be an effort to keep Fair Use out of the legislative process in general. Pat Williams, Vice President for Policy and Programs at the American Association of Museums, mostly concurred with Bennett but she, as others alluded to the value of the opportunity of having such a dialogue with the commercial, proprietary community and that this dialogue needs to continue in some form. There were several lessons to be learned from the CONFU experience: perhaps the chief for Bennett was the need to be more effectively organized and more pro-active about the centrality of Fair Use and of an "intellectual commons" for the public good. *Licensing* Increasingly, publishers were using licensing as the means to deliver digital content. The experience of research libraries with commercial publishers was described by Mary Case, Director of the ARL Office of Scholarly Communication. Libraries were learning to work together, forming negotiating consortia, learning negotiating strategies in dealing with publishers and working on the issue of contract law versus copyright law. Some of libraries' lessons in this arena (especially as transmitted via the LibLicense web-site and listserv) were used in compiling the matrix of concerns and issues that emerged from the MESL project. This project (and its two real-life descendants, the Art Museum Image Consortium (AMICO) and the Museum Digital Licensing Collective (MDLC)) operated in a very different environment from libraries engaged with commercial publishers. It was a closed system that built a relationship of trust and reassurance between museums and universities in establishing ground rules and mechanisms for delivering high quality, well documented digital images of museums' collections to universities for educational use. A report on the multifaceted MESL project will be published in early 1998 (earlier on the website of the Getty Information Institute ). *CONFU & MESL* In comparing the experiences of participating in both CONFU and MESL, Melissa Levine (Library of Congress) and Kathe Albrecht (American University) felt the differences in terms of shared values and the construction of a shared space. Although MESL was predicated on a system in which universities would pay (on a cost-recovery basis for long-term and very generous use of images), and CONFU was about the determination of the practice of being able to use copyright material without payment or permission, the quality of work and of the final product in MESL was highly superior. Neither guidelines nor licensing solve all the challenges, and efforts will continue to develop new workable models. There is a likely need for collective bargaining, yet there will be no one solution. One of the chief points that commentators made was the high degree of constructive work that can be achieved within the community. MESL succeeded in producing the foundation for two site licensing projects that are now being launched. Agreements were crafted, issues were honed. CONFU produced stressed situations and some degree of understanding but ultimately only a few documents that a minority of participants supported. *Fair Use Town Meetings* One issue to emerge from the CONFU experience was the urgent need to educate our constituencies and the general public about Fair Use and copyright law. David Green reported (see ) on a series of "Fair Use Town Meetings" organized by the College Art Association, the American Council of Learned Societies and NINCH. Four meetings have taken place: in New York, Indianapolis, Atlanta and Portland, Oregon, with a fifth scheduled for Toronto in February, 1988. A detailed report on these meetings is available but, briefly, David Green saw six principle themes or strands at these meetings: the presentation of what Fair Use and the copyright law are; debate over whether to accept or reject the proposed CONFU Guidelines; debate over whether to engage the commercial world and its values or not; personal experiences of working with copyright material in educational settings; an introduction to licensing in some of its guises and how it fits with Fair Use; and overall advice (largely to develop institutional and organizational principles and policies for the use of copyrighted materials and fight for the principle of Fair Use). Plans for continuing these meetings in a new (post-CONFU) series are currently afoot and should be seen within the broader context of NINCH's educational strategies. *Principles & Best Practices* The final presentations were of recent drives to formulate such principles and policies that present for an institution, an association, or a sector of the community the beliefs and values behind the use of copyrighted materials. As with MESL, such Principles need to embody and illustrate how access can be broadened when creators and owners of cultural materials design ways to access copyrighted materials that, beyond Fair Use, can recover costs while ensuring generous usage. Duane Webster, executive director of the Association of Research Libraries and John Hammer, executive director of the National Humanities Alliance addressed the formation of four sets of principles produced by libraries, archives and higher education, all of which are available via the reading list developed for this meeting . Kelley White, of Americans for the Arts (AFA), spoke of a new partnership developing between AFA and the National Assembly of State Arts Agencies that would include developing policies on electronic issues. One of the first tasks of this partnership would be to produce a "Copyright Primer for the Arts" as part of the first major challenge of getting the arts community to pay attention to this issue and its implications. Other members of the arts community volunteered their interest in assisting in this effort. CONCLUSIONS This meeting was felt to be important in bringing together several disparate but related developments in an attempt by this community to begin to articulate its shared values. A later meeting was organized (December 12) to develop a NINCH statement of its core values, but from this meeting these would appear to include a belief in wide and equitable access to cultural heritage materials; the protection of the public domain; the fundamental instrumentality of Fair Use in promoting our cultural life; a commitment to understanding the importance of balance between fair use and cost-recovery; and an interest in experimenting with new schemes and relationships shaped by shared values that would continue to stimulate the production of creative works and allow the widest possible access to them. * * * *