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Forwarded from the NINCH list.
Judy
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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 .
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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.
* * * *