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Confu: The conference on fair use

In late April, 1997, Bruce Lehman, Commissioner of Patents and Trademarks, publicly stated that the Proposed Guidelines negotiated by CONFU participants had failed to achieve consensus support. In May, 1997, at its third "final" meeting in Washington, D.C., CONFU participants concurred. None of the Proposed Guidelines would survive the comment and endorsement process that ended in May.

Since the Multimedia Guidelines had a life of their own apart from CONFU (see Confu: Background), their proponents indicated that they were alive and well and ready for use, but the future for the other two (Images and Distance Learning) is uncertain. The Reserve Guidelines had already fallen by the wayside early last fall (1996).

What happened and what does it mean for fair use in the electronic environment?

CONFU Background Information and Guidelines | The Final Report of the PTO

Ninety-three organizations representing for-profit and nonprofit publishers, the software industry, government agencies, scholars and scholarly societies, authors, artists, photographers and musicians, the movie industry, public television, licensing collectives, libraries, museums, universities and colleges spent untold amounts of money and more than 2 1/2 years of their time and their energy to find agreement on the scope of fair use in various electronic contexts. Now it seems that not enough of their constituents, and in some cases, not even the participants themselves, agreed with the result to qualify the Proposed Guidelines as consensus documents. Perhaps this is an overgeneralization -- perhaps not -- but users thought the Guidelines were overly restrictive and copyright owners thought they were giving away too much.

One thing seems clear: there is very wide and deep disagreement about the scope of fair use. There are only a limited number of ways to get beyond this seeming impasse.

Negotiation

The failure of CONFU suggests that negotiation over the scope of fair use has failed.

Litigation

Deep disagreement over the scope of fair use also affects the litigation alternative. Courts may remit damages even when they find infringement where the infringer reasonably believes that what he did was a fair use. Consider this:

In this climate, plaintiffs are unlikely to get damage awards against nonprofit educational institutions that follow reasonable rules about fair use. Lawsuits are expensive, time-consuming, ugly affairs, but if they "clarify" that the scope of fair use is narrower than many thought, they may be well worth the effort, even if the plaintiff does not win the big money. On the other hand, if they clarify that the scope of fair use is broader than many thought, they could be a huge mistake for the plaintiffs. Litigation is probably not the best way to clarify the scope of fair use.

Legislation

Legislation is negotiation with tons of money thrown in. It could work well for copyright owner interests, really well if the user community is not even at the table. We may not have a choice about whether we undertake this alternative. If legislation is introduced that affects user interests, we must join in.

The end run

But, in the end, the most important game will be the end run. This is where it all comes down to dollars and cents. Users describe what they want to do with a copyright owner's work, and the copyright owner states a price for that use. There may be negotiation over the permitted uses and the prices, but not over what is or is not fair use. This is why licensing matters. This is the future. This is not to say that mentioning fair use in a license agreement is unimportant. But, it is to say that it probably will not affect the bottom line and it should not affect the description of permitted uses. It should be CLEAR what users can do, and a statement like, "fair uses are permitted," is NOT CLEAR. Go for clear.

The questions

So, back to the questions at the beginning of this article, and this time, some answers:



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The Copyright Crash Course © 2001, 2007 Georgia K. Harper