SUMMARY REPORT ON NINCH COPYRIGHT MEETING-Nov. 12

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Message-Id: <v0213050db0bc9d5d1bc6@[192.100.21.23]>
Date: Tue, 16 Dec 1997 16:20:00 -0500
To: ninch-announce@cni.org, jhdarms@acls.org
From: david@ninch.org (David Green)
Subject: 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 <http://www-ninch.cni.org/ipmeeting/ipmeeting.html>. 


*****************************************************************
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
<http://www-ninch.cni.org/ipmeeting/ipmeeting.html>


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 <http://www.gii.getty.edu/index/mesl.html>). 

*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
<http://www-ninch.cni.org/News/CurrentAnnounce/TownMeetingThemes.html>)
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
<http://www-ninch.cni.org/News/CurrentAnnounce/TownMeeting-Report.html>
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
<http://www-ninch.cni.org/ipmeeting/ipmeeting.html>. 

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. 


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