FAIR USE EDUCATION
by David Green
Three of the six Kress Foundation-funded town meetings on Fair Use, organized by the College Art Association and the American Council on Learned Societies with assistance from NINCH, were held between February and May, before the May 19 "Final" CONFU meeting. All were differently organized, addressing different audiences.
New York, February 16,
1997
Indianapolis, April 4, 1997
Atlanta, April 27, 1997
[Not included in this Report: Minutes of the 4th Meeting: Portland, Oregon, Sept 26-27, 1997]
For a treatment of the themes in the first four of these meetings, see THEMES IN THE TOWN MEETINGS
The largest, most expansive and most ambitious of these first three meetings was the first, held at Cooper Union in New York at the tail end of the CAA annual conference on Sunday February 16. This meeting focused almost totally on the proposed guidelines for digital images. Close to one hundred people attended. Presenters included four lawyers, two art historians, two museum staff, two artists, an educator, a slide curator, and a licensing developer:
Susan Ball, College Art Association
Barbara English, University of Maryland
Cameron Kitchin, American Association of Museums
Leila Kinney, MIT
Lyndel King, Weisman Art Museum
Nancy Macko, Scripps College
Kenneth Crews, Indiana University
Adam Eisgrau, American Library Association
Ted Feder, Artists Rights Society
Macie Hall, Johns Hopkins University
Geoffrey Samuels, Museum Licensing Collective Development
Annette Weintraub, Artist, City University of New York
Elizabeth Schmidt, Colonial Williamsburg
Kathy Cohen, Art Historian, San Jose State University
The day comprised a legal introduction to copyright and a
presentation of the proposed digital images guidelines, followed by a
panel presenting specific scenarios or predicaments (the art
historian, museum director and artist). After lunch a very large
panel reviewed a variety of general topics (Educating communities
about copyright; liability issues; artists rights, the copy
photography issue and an introduction to site licensing) followed by
a panel discussing use of the Web by an artist, art historian and
museum staffer.
Barbara English, University of Maryland, opened by giving a broad introduction to current US copyright law as it applies to visual images, leading up to fair use and the four factor analysis. She emphasized that it wasn't who you are but what you do with material that determines whether a use is fair use and recommended caution and prudence, emphasizing the openness and ambiguity of the four factor analysis. Ms. English was virtually besieged by a wide range of general questions, submitted at first as written questions, vetted and organized by the moderators.
Following the outline of the general statute came a presentation of the Proposal for Educational Fair Use Guidelines for Digital Images by the AAM's Cameron Kitchen, who navigated through the guidelines' basic structure. Questions covered both the history of the guidelines and the composition of those most closely involved in the two-year process as well as very specific questions about why certain provisions were the way they were. This session could easily have doubled in length given the battery of questions that followed it. It might have benefited from having a broader panel answering specific questions. Pat Williams reminded panelists that this was a highly wrought and negotiated document and that many passages had quite complicated histories.
Opening the panel on specific predicaments, art historian Leila Kinney, from MIT, speculated chiefly on the relations of "original" artworks to their different forms of reproductions raised by digitally networked images. She was interested in taking the issues raised by Walter Benjamin and later by John Berger into the legal dimension by reconsidering the terms "original," "derivative work", "copy" akin to the way the "Manifesto Concerning the Legal Protection of Computer Programs" had done. She questioned whether it was socially desirable to have layer upon layer of rights, and permissions to negotiate in every sector of the use of images. She hoped that there might be a space in which people with very different interests in using digital imagery might be able to forge a new consensus about providing for a depository system for high-quality images in the public domain that would be easily accessible online.
Weisman Museum director, Lyndel King presented the practical concerns of museums in the intellectual property debate. Aware of all sides of copyright debate she was alsoincreasingly aware of the need to carry over the care of their collection into the digital world: a space many museum people felt was like the Wild West with few fences and sheriffs. Just as the storage and care of collections isn't free, many curators and directors feel that use of such collections can't be free. There was doubt and worry about whether campus networks were secure and whether site licensing was or was not the way forward. There were long-term implications for museums' ability to preserve images and protect collections if their images could easily be downloaded and used in ways museums have no knowledge of, and earn no revenue from. "If we lose control of the use of our collection, do we lose the means to use our collection as an asset to help preserve it?" (See Lyndel King's article, "The Fair Use Dilemma," in the July/August 1997 issue of Museum News.)
Artist and teacher Nancy Macko [for
complete paper] felt strongly that the guidelines did not include
the voices, concerns or needs of artists. Artists were like others
conflicted in their simultaneous desire for unlimited access and
strong protection of their own work: this paradox lies at the heart
of education and artistic production. She felt there were parallels
between artists and museums' attitudes to their work. Just as artists
often gave slides to writers, researchers and slide librarians,
expecting some return if a use resulted in profit, then, in the same
way, museums should not charge exorbitant fees for the educational
use of images.
Educator (and director of the Copyright Management Center at Indiana University) Kenneth Crews opened the large after-lunch panel presenting a range of copyright-related issues by speaking about his approach to teaching and advising on copyright issues and especially fair use questions at Indiana's Copyright Center. Granting that staff wanted practical solutions, not copyright lectures, he tried to help them find their own solutions rather than to rely on meticulous, and often alien standards and guidelines delivered from outside their experience. Crews found the detail and the approach of the digital images guidelines unhelpful and intrusive.
Legislative Counsel for the American Library Association's Washington Office, Adam Eisgrau, in speaking about liability issues in copyright law stressed that copyright was not at core about economic issues but rather about encouraging the progress of "science and the useful arts" in the nation. The digital images guidelines in ALA's view were premature and could well force institutions into situations in which they might be liable. Legal counsel and educators could offer some guidance at a time when too much was in flux, and while we were seeing the evolution of new market models and new public sector models of providing service and information. Eisgrau's advice was to think critically, be willing to sacrifice detailed guidance on fair use issues in order to avoid the imposition of draconian Guidelines and to meanwhile work together on new legislation--through the agency of the Digital Future Coalition and other groups.
Ted Feder from the Artists Rights Society spoke about the work of the society, its concern for artists' moral rights and re-emphasized many of Nancy Macko's points about the artist's place in the economy of ideas.
Slide curator Macie Hall gave a detailed and commanding presentation about how the digital images guidelines were essentially created to solve the problems of slide curators but, due to the fears and power of copyright owners, the resultant guidelines were unworkable and seemed mostly geared to protecting the potential future profits of publishers, rather than protecting the educational constituency they were meant to serve. Macie informed her presentation throughout with a history of the longstanding practice of copy photography for educational use, which has suddenly been re-examined by commercial publishers and now considered by them to be virtually illegal. Macie also gave examples of the time taken to gain permission for use of images (It took her two years to gain permission for the use of 300 images for a book; a given art history class consumes 2,000 images a semester, which would thus take 14 years to obtain permissions).
Another model of obtaining quality digital material was presented by Geoff Samuels, developer of the Museum Licensing Collective. The educational site licensing model would enable museums to contribute digitized works to a collective which would then license collections of slides to universities, allowing a broader range of uses of very high quality, fully documented images for a low fee determined by cost-recovery principles. The Museum Educational Site Licensing Project was closing its two-year investigation into what the essential terms and conditions were that should be considered by both parties to a license. Two projects in this community, AMICO, run by the Association of Art Museum Directors, and the Museum Licensing Collective were using the work of MESL in developing their licensing schemes. See the presentation on licensing at the Atlanta meeting below by Christie Stephenson, Project Director of MESL.
Responses in the question period focused on the time limits to copyright protection, some discussion about licensing issues, a statement by Adam Eisgrau that museums and libraries were essentially at the same place, in the same position in the copyright landscape,--knowledge-based non-profits trying to strike a balance in copyright negotiations, and a plea from the audience that what many artists and institutions needed was specific guidance on the use of the Web, which the Digital Images Guidelines did not give.
This particular plea was partially met in the last session of the day as it brought together an artist, a museum director and an art historian to talk about web issues. Actually they mostly characterized their use of the Web, though a few issues emerged.
Artist and teacher Annette Weintraub, working with digital images since 1984 was impressed by the chameleon like character of the Web--its different functions and characteristics some of which were at odds with one another. She shared the paradoxical experience of wanting total access to others' materials yet also total control of her own work. However, she realized that control is illusory. She has been most impressed by the way the Web allows direct interaction with audiences--her "Realms" piece on ArtNetWeb was quickly listed as a "cool site of the day" and email poured in from all over the world. Tremendous sense of contact from a different kind of audience. This inspired her to make new communication-oriented pieces.
Kathy Cohen, an art historian at San Jose State University spoke about her extraordinary range of experiments, mostly in teaching using digital imagery on and off the Web. Especially using distance learning, there were enormous possibilities, even though current technology had to be negotiated. Her position was that so much was in flux that one should not sign on to any guidelines at present. indeed her work had applications to all CONFU guidelines and it was often confusing which one would apply at any time. She recommended writing our own guidelines--echoing Kenny Crews' philosophy.
Finally Elizabeth Schmidt, from Colonial Williamsburg, described this large living history museum and its website. Williamsburg's several hundred acres of antiques with 88 Colonial buildings were matched by its intellectual assets including 750,000 images; 50 years of films; scripts, curricula, archeological research that are now being turned to use on the Web. Fortunately, Williamsburg has no copyright problems and has been actively engaged with distance learning, combining the synchronicity of TV with asynchronous Web and listserv experiences.
Time disappeared and, as the hall had to be vacated by 4:30pm, the meeting ended sharply, although many conversations spilled out into Cooper Square.
The second town meeting was organized by Kenny Crews at Indiana University in Indianapolis. It specifically did not address the digital image guidelines and was focused more on the impact of the CONFU guidelines in general on education and libraries. The proceedings of this meeting will be published in a forthcoming issue of the Journal of the American Society for Information Science.
Kenneth Crews, Indiana University
Mary Levering, Library of Congress
Kenneth Frazier, University of Wisconsin
Lolly Gasaway, University of North Carolina
Joann Stevens, Association of American Colleges and Universities
Christine Sundt, University of Oregon
Colin Day, University of Michigan Press
Peter Jaszi, American University
Georgia Harper, University of Texas.
The day was divided into four sessions: "Are Fair Use Guidelines Right for the Academic Community?" divided into pro- and con- presentations; "Fair Use for Teaching and Learning"--presentations on distance learning and multimedia guidelines with perspectives from librarians, educators and scholarly publishers; "Library Issues," with presentations on the Interlibrary Loans and Electronic Reserves Guidelines, with a Scholarly Publishing perspective on both; and finally "Where Do We Go From Here?"--a look at political and practical options.
This meeting had a number of particular assets: Kenny Crews himself, a wonderfully effective theatrical and educational presence; a preceding half-day introduction to basic copyright issues, masterminded by Mr. Crews, and a voluminously inclusive conference loose-leaf book, packed with reference material.
After introductions, the day began with the rhetorical pros and cons on guidelines from Mary Levering (US Copyright Office) and Ken Frazier (Librarian of the University of Wisconsin). Ms Levering presented the CONFU guidelines as essential reminders, helping users to interpret the law; veritable "Hints from Heloise" that could help navigate the thickets of copyright. She urged the audience to accept the guidelines as provisional, temporary documents that, although they might soon need superseding, contained essentially good advice. Ken Frazier declared that although he was not against guidelines per se he was against institutional adoption of guidelines. If it was just advice one needed one didn't need institutional adoption. Already he could see classroom guidelines being used to limit fair use. It seemed these guidelines were being produced far too soon. As a librarian dealing with exorbitant costs of information (which the guidelines don't recognize) he understood the complaints against publishing monopolies that gave rise to the 18th century Statute of Anne: "They take our learning and charge whatever price their avarice demands." The 20th-Century agenda seemed very parallel, given statements from the Association of American Publishers, the White Paper on Intellectual Property and the language proposed for the WIPO Treaty: fair use is being made out to be irrelevant to 'normal publishing.'
The second session presented distance learning and multimedia guidelines. Laura Gasaway spoke on the hurdle that the Distance Learning Guidelines faced with section 110 of the copyright law itemizing the materials that could and could not be transmitted. These guidelines were very limited in that they only dealt with synchronous transmission of material: the decision was to revisit guidelines in a period of between 3 and 5 years for consideration of asynchronous transmission (which is essentially what web-based distance learning will depend upon). Joanne Stevens presented the Multimedia Guidelines: her essential point was that as multimedia digital productions were so complex and used so much material, there had to be a way to work around the labyrinthine permissions process. She believed that the guidelines were a very workable solution to an almost intractable problem.
Giving perspectives were Christine Sundt, Slide Librarian at the University of Oregon, and Colin Day, director of the University of Michigan Press. Sundt's paper, The CONFU Digital Image and Multimedia Guidelines: The Consequences for Libraries and Educators, included a compelling account of the history of the issue of the reproduction of visual materials in educational settings--a complementary account to Macie Hall's presentation in New York. Briefly, she felt that the burdens imposed by the guidelines, specifically those of the digital images guidelines, essentially made them unworkable--especially with the insistence on slide librarians seeking permissions for material that most practitioners felt were being used fairly. Sundt strongly recommended the community producing its own "guides to good practice" perhaps based on the work that has gone into the guidelines. Colin Day felt he needed to make the case that university publishers were very much embedded in the university structure and should not be regarded as the enemy. A process of professionalization of university presses had made them a medium or intermediary between universities and commercial publishers.
After presentation of where librarians felt they were with the Inter-Library loan and Electronic Reserves CONFU working groups, which did not produce guidelines, the conference proceeded to the larger issues of political and practical next steps. Peter Jaszi, Professor of Law at American University gave a sweeping sense of recent international and domestic developments in copyright legislation. Jaszi is a key player in the activities of the Digital Future Coalition, an ad hoc coalition of some thirty organizations committed to continuing the current balance between rights holders and users in copyright law in any new intellectual property legislation. After the effective blockage of last year's legislation and the volte face by the World Intellectual Property Organization, Congressional staff now understand the DFC position on the importance of balance and the continuation of educational fair use and exemptions. Now was not the time to negotiate but to be eloquent in the insistence of fair use as the community's birth right. Jaszi reminded us of related issues of term extension; the database protection act; and universal commercial code revision especially its language on shrinkwrap licensing.
Georgia Harper, legal advisor at University of Texas, spoke on practical steps she was taking to inform faculty and administration about their copyright responsibilities--see her presentation online. This included educating university members both about intellectual property assets they themselves own as well as about what was allowable under fair use. Perhaps the single most important act any institution could engage in was to formulate both intellectual property management principles as well as a management policy: one that addressed use of others' works involving fair use and licensing and copyright ownership and management, so that the university could protect and exploit works its members helped to create. It was increasingly important to remember that copyright was a two-way street.
Douglas Bennett, Vice President, ACLS
Suzanne Quigley, Head Registrar, Guggenheim Museum, New York
Christie Stephenson, Museum Educational Site Licensing Project
Stephen Weil, Center for Museum Studies, Smithsonian Institution
Mary Levering, Copyright Office
This town meeting was held in two parts as two sessions during the AAM Annual Conference in Atlanta. The first 75-minute session consisted of a panel of five speakers presenting aspects of the Fair Use debate. This was followed by an open 90-minute town meeting in which the panelists fielded comments and questions from an audience of some 50 participants.
Doug Bennett opened the session by introducing copyright law as an architecture of balance between the rights of copyright holders and the interests of users of copyrighted material. He reviewed the four factor analysis of whether any particular use of copyrighted materials without permission was fair use.
In introducing the movement of copyright into the digital environment Bennett emphasized two sets of worries consuming copyright owners and users: one was the fear of millions of digitally pirated copies of copyrighted works appearing on the Internet; the other was the fear of a pay-per-view despot in which all property was locked up behind licenses.
After a brief account of the history of the NII Task Force and the progress of the Green Paper and White Paper, Bennett gave a synopsis of the Conference on Fair Use and outlined the Digital Image Guidelines.
Bennett then broadly analyzed the structure and concerns of the Guidelines. First he noted there were three important distinctions:
Bennett finally noted two special issues germane to digital imagery:
a) that of the use of whole images v. portions of images (whole
images generally need to be quoted or used, whereas only small parts
of a text work are normally quoted in fair use); and
b) the copyright status of copy photography: whether a photograph of
a copyrighted work was itself copyrightable.
Mr. Weil presented the current copyright debate as one more about the control of intellectual property than economics. He cited his experience while at New York's Marlborough Galleries of William Rubin's request for the use of an image of a Jackson Pollock painting in a forthcoming critical article. Pollock denied the request and Rubin was only able to publish the image by finding a photograph of the painting not controlled by Pollock: so fair use stands between the control of a work by its owner and the use of an image of the work for critical or educational use.
Weil emphasized Bennett's point about the difference between text (the predominant concern of copyright law) and imagery. Images cannot be paraphrased or abbreviated in the way that text can (you need the whole work); and museums, to do their work, need to be able to reproduce visual images in very many different ways.
Weil saw the current CONFU Guidelines as substantially undermining fair use and cited the White Paper's reference to fair use as an anachronism with no role in the National Information Infrastructure. It was, he felt, a provision that was seen to interfere with the smooth functioning of the NII, as envisioned by the Dept. of Commerce: a world of licensing and micropayments.
Quigley spoke as a registrar of contemporary art and expressed her general dismay that few museum directors and registrars had read or were acquainted with the CONFU Guidelines. She reported on her own informal telephone survey of how her peers at other institutions used or were preparing to use digital images. The results showed a general ignorance of many of the issues or implications of the new environment.
She noted that several museums are increasingly asking for the digital reproduction permission for works that they borrow for exhibitions and often the lenders do not understand the implications.
Christie Stephenson introduced the Museum Educational Site Licensing Project (MESL) as a way of showing how the licensing model can fit into a package of the delivery and use of visual images in a digital environment alongside fair use. MESL has, for the last two years, worked with seven museums and seven educational institutions to determine the practical mechanisms for delivering quality digital images for use on campus networks. The economic model is that of cost recovery, in which a modest income stream can help museums continue with the digitizing of their works.
The advantages of establishing an educational site license for universities include:
The environment that MESL's work applies to is only that of the museum and educational communities and their shared values.These values include:
The license model recommended by MESL would have no intention of limiting "fair use" and indeed would clearly enable users to go beyond fair use (for example it would give users the rights to download and print and copy material and allow the manipulation of copied images). Ms. Stephenson noted that, as a librarian, she could personally endorse this as a pragmatic response to the issues of the protection and educational use of digital materials. Licensing is not the only answer but it should be included as part of the overall picture.
Ms. Stephenson concluded with the thought that in this kind of licensing transaction and relationship, Esther Dyson's formulation of "intellectual value" seemed more relevant and useful a concept than the usual one of regarding images and their use as "intellectual property." Such value adhered in the aggregation of content from multiple sources; in the collection of authoritative data; and in the ability to use sophisticated searching mechanisms and other value-added services.
Ms. Levering spoke to her commitment to copyright law, fair use and the process of CONFU, addressed the question of why we need Guidelines and why we need them now.
She spoke of the CONTU (National Commission on New Technological Uses of Copyrighted Works) experience at the time of the 1976 revision of the copyright law, which is when fair use was first embedded in statute law in section 107--principally in the form of the 4-factor analysis. She spoke to the pressures at the time to go beyond the four factors and be more specific but that, as vague as they are, they are proving a good bedrock.
Ms. Levering referred to a survey conducted by Kenny Crews of university policies and guiding principles about copyright and his discovery that most university counsels are overly conservative in interpreting fair use and thus overlook their own interests. Guidelines can help in this process and give back one's fair use rights.
Ms. Levering emphasized that the negotiation process is at the vital center of the CONFU Guidelines and thus, even though they are far from perfect, they are "somewhat workable." The risks are far greater now than they were in 1976, with rightsholders even more nervous about the loss of revenue. But her experience as part of CONFU spoke to the need on both sides to continue the dialog engaged upon in CONFU in another format. What was needed was a willingness to put the current guidelines to the practical test in the changing technological landscape and then re-visit these guidelines in the future: perhaps in as little as 2 years time.
She wanted especially to emphasize that the guidelines were not law; that Fair Use exists beyond the guidelines and that the guidelines do not and could not limit fair use. She pointed to the need for different sets of guidelines to address the different uses and risks in the different areas of digital images, multimedia and distance learning. The general preamble clearly stated that the recommendations of one set of guidelines did not necessarily apply to another area of work.
Guidelines are needed now, she stressed because thousands of teachers are desperate for help in interpreting the 4 factors; the guidelines make the interpretation of the four factors much clearer and enable practical use of copyrighted material. One could see the Guidelines as a kind of "Hints from Heloise".
Ms Levering ended by quoting from a D-Lib article by Sarah Sully on JSTOR. Recalling the difficult negotiations between publishers and libraries over whether print-outs from the digital versions of JSTOR journals could be sent to other non-subscribing libraries via Inter-Library Loan, Sully wrote, "We had to propose some compromise or neither side would have been willing to work with us. With the help of friendly hard-liners from each camp, we molded and negotiated a clause that offers something to both sides." This is the spirit of CONFU and Ms. Levering recommended that the broad community treat the CONFU Guidelines the way that JSTOR managed to bring libraries and publishers together to practically test a negotiated agreement.
In summing up, Mr. Bennett noted that we were in a particular copyright predicament. That we were concerned especially with the educational interpretation of copyright law in the digital environment. The draft CONFU guidelines were now available and would be finalized at the CONFU meeting on May 19.
The Big Question, as he put it, was: "how do we live together in the digital environmen?." Educational site licensing is one way to go ahead, it is part of an overall digital package, but there is still fair use beyond the conditions of any license. Bennett noted Mr. Weil's impassioned plea for the vital center of fair use to be held and to be exercised and Ms. Quigley's complaint about the complicated, cumbersome nature of the guidelines. But finally, as Mary Levering reminds us, we do still need some guidance and perhaps we should first test the guidelines, continue the dialog and produce further guidelines in the not too distant future.
During the afternoon's discussion, Mr. Weil spoke more on his sense of the erosion of fair use and that there were two notions of fair use: as a limitation on copyright and as an extension of copyright for public use. This second understanding was contested by Mary Levering. Weil's contention that a postcard reproduction of a painting was essentially a different work was contested by Howard Besser who held that in such a case it was useful to consider the different levels and different forms in which an image could exist under copyright, without a particular version being a "transformative" version.
To the question about whether a museum that knows it does not own the copyright to images in its possession should post the works on a public web page, the answer was that although images could be digitized for internal use and on an Intranet, they should not be published on the Web. Weil reminded the audience that the vast majority of works owned by museums were in the public domain and could thus be published--though this would generally not be true of contemporary art museums.
Distance Learning was noted as an area of potentially enormous growth that may drive a new section of revised copyright law.
On the piracy issue and the fact that international piracy was more of an issue than domestic piracy: Howard Besser pointed out that the market argument was fallacious--the millions of people buying cheap pirated copies of works would not pay standard prices. Bennett noted that although individual countries might have weak copyright protection, the WIPO Copyright Treaty, dealing with digital copyright would help in this regard. Bennett also emphasized that the WIPO Treaty gave much added weight to fair use and other limitations to copyright.
The importance of continuing to vigorously exercise and experiment with fair use was mentioned, emphasizing Mary Levering's point in the morning that the CONFU Guidelines gave one a certain level of security that was generally much higher than university general counsels would offer.
Answering Suzanne Quigley's dismay that few museum directors and registrar's had read the CONFU Guidelines, Weil emphasized his position that the Guidelines did not adequately answer the concerns of museums. He felt that commercial interests and universities were represented much more than museums. David Green suggested that perhaps AAM might consider drawing up an internal document of principles or recommended policies for museums' use of digital intellectual property, along the lines of the National Humanities Alliance's "Basic Principles."
Many panelists spoke again to the need for a continued dialog beyond CONFU, although what the formal avenues would be were unclear.
Mr. Bennett closed by emphasizing the need for CONFU to come to closure so that Congress can consider its final recommendations and include it in legislative history.