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CONFU CONTINUES?
Is it time to re-group?
By David Green
What in the world is CONFU (and how is it perceived around the rest of the world)? This was one of the hotly debated questions during the advertised "final meeting" of the Conference on Fair Use on May 19, 1997.
The winning answer is that CONFU is a loosely constructed framework called for in 1994 by the President's Information Infrastructure Task Force's Working Group on Intellectual Property Rights to enable copyright proprietors and the educational users of copyright material to develop guidelines for the fair use of copyrighted digital works.
CONFU, we heard emphasized, was not a Congressionally-mandated body (indeed was not a body at all); the results and the forthcoming CONFU Report would certainly not have the force of law or even the status of being read into legislative history. CONFU is simply a discussion process, that is open to all. Its Working Groups, which produced three sets of guidelines, are similarly open to any who wanted (and could afford frequent travel to DC) to attend.
So what occurred during the final meeting of this informal, non-legislative, non-binding "conference"?
- Proposed guidelines, shared broadly since the previous final meeting of CONFU among the constituencies of those represented, were presented to the group as a whole with a list of those participating groups, which, after two years of working together, had endorsed, rejected or had no position on the guidelines (see Appendix 1). Of 100 participants, only 60 registered a position on the guidelines and only 25 had commented on the Digital Images or Distance Learning Guidelines. Interestingly the commercial proprietary community only registered comments on the Multimedia Guidelines, which were the most hotly contested. The mostly nonprofit user community objected in particular to the Multimedia Guidelines use of specific portion limitations in the fair use of copyrighted materials. This was not felt to be in the spirit of the four fair use factors, where context and circumstance play a large part in determining whether a use is fair.
- It was clarified that CONFU--as a mere facilitating framework--would not endorse or "adopt" any set of guidelines. Peter Fowler, facilitator of the process, should only include in his Report to the Commissioner of the Patents and Trademarks Office what the resultant guidelines were and the level and quality of support they had received.
- It was clarified that Recommendation 5 of Peter Fowler's December 1996 Interim Report would be dropped. That recommendation was "That the Final Report be submitted to Congress by the Working Group on Intellectual Property Rights at an appropriate time as part of legislative history, so that it can be referenced in connection with the Copyright Act provisions on fair use." This would not now take place.
- It was determined that CONFU--the Framework--would continue beyond this "final meeting." The framework had produced a certain body of results but there was a determination to go "all the way" and see if consensus could be achieved in creating generally acceptable guidelines. A date was set for another plenary meeting a year ahead (May 19, 1998 at the Mumford Room at the Library of Congress). An expanded Steering Committee (see Appendix 2) would be formed to guide the process and determine the role of the 1998 meeting. In the interim, the working groups were encouraged to convene and discuss further steps. The process and the working groups were encouraged to be as inclusive as possible.
- A Report would be published this summer. For those who had withheld their positions and statements on the guidelines, the deadline was extended to June 30.
- The Guidelines (mostly endorsed by a minority of participants) were thus accepted as interim documents, place-holders. Some advocated testing or field use of the guidelines so that more concrete data might be gathered on how fair, useable or burdensome they might prove to be.
- Except for Multimedia Guidelines. The Consortium of College and University Media Centers (CCUMC), chief organizer and facilitator of the Multimedia working group, maintained that these guidelines were fixed and would not be re-opened for "between 3 and 5 years." From the beginning, the multimedia guidelines were seen by many as something of a wild child. CCUMC had begun organizing guidelines before the CONFU process itself had started; some took issue with the purported inclusivity of the group; and the organizers had solicited the approval of members of Congress and other external groups that no other working group had sought. In the words of John Vaughn, the multimedia guidelines had been artificially reified by an unprecedented and astonishing media blitz by the proponents.
Although some were figuratively horsewhipped for suggesting that CONFU itself was confusing and that it had brought with it much unhelpful political baggage from the IITF era, it seems clear to this writer that CONFU clearly has been confusing to many and that its continuation or resurrection under the same name might cause further misunderstanding or misrepresentation of its authority.
Many within the nonprofit educational and cultural community are now thinking that it is time to step back and clarify what our community values are in the arena of production, management and use of intellectual property. What are some bedrock principles that could serve the nonprofit community in the place of broadly accepted guidelines? Perhaps now is the time for the educational community to more actively engage in a national debate about principles and values as far as the production , management and use of intellectual property is concerned. Some internal discussion and agreement might be good for our collective spirit and to foster more unified collective action when we next engage with the commercial proprietors.
We should perhaps also consider whether, in the context of upcoming Congressional action in ratifying the WIPO Copyright Treaty and pursuing further digital copyright legislation, having attempted to play fair through CONFU, we should now work hard to reassert the principle of Fair Use in the digital environment at the legislative level.
APPENDIX 1
Revised JULY 2, 1997
NOTIFICATIONS RECEIVED FROM ORGANIZATIONS ON THE PROPOSALS FOR FAIR USE GUIDELINES
- Links from Organization name connect with statements endorsing or rejecting Guidelines
- Asterisk indicates link to PDF file at Patent & Trademark Office website
Signatories to
Letter
to Orrin Hatch, 1/13/97, not included in above listing:
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National School Boards Association
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--
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--
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No
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National Association of Elementary School Principals
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--
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--
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No
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American Association of School Administrators
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--
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--
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No
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National Association of Independent Schools
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--
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--
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No
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National Association of Secondary School Principals
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--
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--
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No
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National Education Association
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--
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--
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No
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U.S. Catholic Conference
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--
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--
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No
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APPENDIX 2
EXPANDED CONFU STEERING COMMITTEE
*Chris Dalziel, Instructional Telecommunications Council
Adam Eisgrau, American Library Association
Mary Levering, Copyright Office
*Lisa Livingston, Consortium of College and University Media Centers
* Victor Perlman, American Society of Media Photographers
Carol Risher, Association of American Publishers
Mark Traphagen, Software Publishers Association
*Laila Van Eyck, National Association of State Universities and Land Grant Colleges
*John Vaughn, Association of American Universities
*Pat Williams, American Association of Museums
* new member
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