ARCHIVED: Draft Final Report on the Conference on Fair Use (CONFU)

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November 18, 1996

By Fax: 703-305-8885

Peter N. Fowler
Patent and Trademark Office
U.S. Department of Commerce
Washington, DC 20231

Dear Peter:

We appreciate the opportunity to comment on the draft final report to the Commissioner of Patents and Trademarks on the conclusion of the Conference on Fair Use.

The CONFU discussions have been helpful and productive in bringing together a large and diverse group of interested parties for regular meetings over a period of two years. Participants have developed a much better understanding of each other and of the needs of the various sectors. It has been helpful for the library and education communities to learn more about proprietor interests and concerns relating to the digital environment, and for proprietor representatives to understand better what educators and librarians and students and library users want to do with the newer technologies, how they use them and why, and what the problems or uncertainties are.

We are grateful to the Patent and Trademark Office for facilitating these discussions. However, we do have several concerns about the draft report. These concerns were raised by the ALA representative on the steering committee in response to an earlier draft of the report for comments by steering committee members. We are pleased to see that the current draft has revised the appendix heading of proposed principles submitted by some participants in September 1994. This revision corrects the impression left by the previous heading that these principles were discussed and agreed to by CONFU participants.

However, some serious concerns have not been addressed in the new draft, and others have arisen in the considerable rewriting between drafts. We respectfully list the following concerns and recommend that the draft be revised accordingly. Should such revisions not be made, we request that this letter be attached to the report as a further appendix, and that the report be labeled a report to the Commissioner by the PTO staff.

Overall Approach

Overall, as a PTO staff developed draft, the report should remain factual. Instead, it repeatedly expresses opinions which may or may not represent the considered consensus of CONFU participants present at any one meeting, or the expressed positions of a critical mass of entities represented in the CONFU process. The report will be circulated widely, including to organizations and individuals that did not participate in the CONFU process. It is important to avoid inadvertent misinterpretations. A couple of examples of the problem follow:

The CCUMC multimedia guideline development process began before the CONFU process and proceeded independently and with somewhat different participation than CONFU. While its progress was reported at CONFU meetings, it is purely opinion to say, as the draft does on p. 9 of the Nov. 6 draft, that "its results were considered an achievement of the CONFU process..."

Further, no guidelines have been endorsed by a critical mass of CONFU participants. Therefore, it seems purely opinion to say, as the Nov. 6 draft does on p. 11, that: "Some working groups succeeded in drafting guidelines which have gained wide acceptance and endorsement."

We recommend that these statements be deleted.

Specific Guidelines

We do not believe that CONFU itself can take positions on individual guidelines. That is a prerogative retained by the individual organizations and entities sending representatives to participate in the CONFU process. Therefore, we strongly object to the statement on p. 12 of the Nov. 6 draft that states that "CONFU gave its approval to the Educational Multimedia Fair Use Guidelines...and indicated that they were an examplar of a consensus document..." These guidelines have not been endorsed by a critical mass of CONFU participating organizations; and some CONFU participants have expressed opposition to them. While we appreciate the hard work done by the CCUMC working group, this statement in the draft report misrepresents the status of these guidelines. We recommend that this sentence be deleted.

Likewise, there are both inaccuracies and premature statements in the "Summary of Guidelines" section on p. 14 of the Nov. 6 draft. The first sentence states: "In summary, then, CONFU endorsed fair use guidelines for digital images, educational multimedia, some aspects of distance learning, and endorsed a statement of scenarios dealing with the use of computer software in libraries." Again, it is inaccurate and misleading to indicate CONFU endorsement of the educational multimedia guidelines when the majority of the CONFU participating organizations have not endorsed them, and when, indeed, some CONFU participating organizations have expressed opposition to them.

Further, the draft digital image guidelines and the draft distance learning guidelines have just emerged from CONFU working groups, and these latest drafts have not yet been fully discussed in a full CONFU session, nor received the broad dissemination among CONFU participating organizations that typically happens after a "mature" draft has emerged from a full CONFU session. Thus, it is at least premature, and definitely misleading, to indicate that CONFU has endorsed these two sets of guidelines.

In the same spirit, the final paragraph in this section preempts future organizational actions. Surely CONFU participating organizations which may have endorsed a particular draft of guidelines retain the right to take any further action they may wish, including that of changing their minds in the future. The draft report should not speculate on what "All" organizations or any set of organizations might do in the future. Nor should the last phrase refer to "fair use guidelines endorsed by CONFU." We recommend the last paragraph be revised as follows:

"Some organizations and entities partipating in the CONFU process have endorsed one or more of the draft fair use guidelines developed during the past two years, and may recommend them to their respective memberships. As this process occurs, and through hard copy and digital distribution of this report, copyright owners, educators, librarians, and users throughout the country will become aware of the work of CONFU participants."

Recommendations

We strongly object to the first recommendation, since guidelines that have not been widely endorsed by CONFU participating organizations should not be incorporated in legislative history or referenced in connection with the Copyright Act provisions on fair use. This is particularly true of guidelines where major organizations participating in the CONFU process have objected to the guidelines. Including such guidelines in legislative history simply misleads practitioners as to the extent to which they may rely on such guidelines.

Where guidelines have been agreed to by some organizations in the educational/library communities and by some organizations representing proprietors, they may be considered agreements between organizations willing to endorse them, but where signficant opposition exists in either of these communities, they should not be included in legislative history.

Topic Grid

Consistent with the concerns expressed in the body of the report, we recommend that in the "Status" column of the "Topic Grid," the word "final" be deleted with reference to guidelines, and that the status of electronic reserves be revised to conclude that "CONFU could not proceed with guidelines."

We have found participation in the CONFU process very positive, and wish to see the report reflect this experience. We thank you for your consideration of our comments and recommendations.

Sincerely,

Robert Oakley
Washington Affairs Representative
American Association of Law Libraries

Carol C. Henderson
Executive Director, Washington Office
American Library Association

Duane Webster
Executive Director
Association of Research Libraries

David Bender
Executive Director
Special Libraries Association