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CONFUBackground |
In connection with the Clinton Administration's National Information Infrastructure initiative, the Working Group on Intellectual Property Rights in the Electronic Environment called upon copyright stakeholders to negotiate guidelines for the fair use of electronic materials in a variety of nonprofit educational contexts. Anyone who wished to participate was invited to do so and a large group began to negotiate in September 1994.
The large group identified five areas of educational use for consideration by smaller working groups:
Subsequently, the group determined that statements should be prepared for software.
By the fall of 1995, some of the negotiations had run into considerable difficulties. Talks were near breakdown, and indeed did break down in some areas. The Multimedia negotiations remained on track, however, and by early to mid-winter, efforts to revive the process in other areas were beginning to show promise. By early spring of this year (1996), the mood had lifted and participants were newly optimistic.
On May 30, 1996 representatives from all of the working groups met in Washington. Each group provided its current draft and a status report on its process and progress. Two groups, Multimedia and Images, reported that they were close to agreement and targeted final agreement within one to three months. The Distance Learning group reported that they were not that close but they targeted final agreement by November 1996. The Interlibrary Loan group would not characterize its negotiations as "in trouble," but had little progress to report; still the group hoped to have an agreement by November 1996.
Electronic Reserves negotiators were the most troubled group: their talks had broken down completely in the fall of 1995; talks were revived largely within the user (library) community; this "subgroup" produced a set of guidelines that was only modestly bilateral (counting among its supporters many library organizations, the Association of American University Presses and some scholarly societies, but opposed by the largest publisher groups, including the Association of American Publishers); and the subgroup's proposed guidelines were further undermined by their failure to garner support from some of the largest user organizations, including the Association of Research Libraries. Many participants at the May 30 general meeting urged the subgroup to reopen fully bilateral talks in order to avoid producing guidelines that were not endorsed or were actively opposed by major stakeholders. The subgroup agreed to accept constructive comments on the current draft until July 15, 1996. By September, however, it appeared that the draft could not be changed further without losing its core supporters and would not become CONFU guidelines. Nevertheless, the work performed by this group presents a valuable starting point for institutions wishing to develop their own electronic reserve guidelines.
Some of the proposed guidelines are in final form (as of October 1996) and while they contain provisions that may not work in practice, they appear to be more helpful than their "Classroom Guidelines" counterparts from the 70's. As we consider how to understand and use these guidelines, it is very important to keep in mind the dramatic changes that are taking place in our libraries that provide the backdrop against which these guidelines will function. All of the proposed guidelines incorporate a time limit on the use of materials that have been digitized and used pursuant to fair use. That means that uses beyond the time limit require permission. But, most libraries are rapidly acquiring their most frequently needed works in electronic form, and should not need to place them on reserve or otherwise use them in ways that would require additional permissions. Thus, over the next decade, we may apply fair use to fewer and fewer of our resource materials, principally to those whose owners have not digitized and made them available by license. This highlights the need to pay close attention to our license agreements, to be sure that they meet the needs libraries will be expected to accommodate.
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