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Copyright Law in the Digital
World: A Town Meeting in Portland Oregon Trying Out the Guidelines Robert A.
Baron To the reader: The text presented at the Portland "Town Meeting" begins at Section III. I. Collections and Representations (Go to outline.) From the beginning, the scholarly use of images for study and teaching has depended upon the accumulation of individual works to form collections. The earliest collectors of works of art and of natural wonders always saw to it that the scientific, intellectual and artistic communities of their day were provided access to their objects for study -- such was understood to be the obligations of ownership. Indeed, most often the pride of ownership went hand in hand with the pride of providing patronage to science and scholarship. When the great would-be collector Cassiano dal Pozzo could not, himself, afford to acquire original objects, he commissioned young artists (Poussin and Pietro da Cortona) to make reproductions of choice specimens to form a hypothetical collection. For Cassiano, this was his famous "Paper Museum." It has been suggested that in Cassiano's "Paper Museum" folios of drawings of objects from classical antiquity and representations of natural curiosities may have been structured to form a substitute or "surrogate" wunderkammer and kunstkammer -- an arrangement of the arts of man and the miraculous fabrications of nature intended to convey in their organizational scheme and in their symbolic significances magical or mystical implications, such as sovereignty over the domains of man and nature.n1 As such, these drawings may have formed one of the first systematic collections of "surrogate" images -- works collected as representations, arranged according to a preset pattern or structure, in order to achieve a specified or implied objective. Even before Cassiano's 17th-century enterprise, artists and scholars had become accustomed to depending upon surrogate images made available by the great advances in printing of the 15th Century. By the middle of the 16th Century the publishing industry had already begun to produce "pattern books" and "emblem books," collections of designs to be used by artists in search of images, by scholars in search of iconography, and by common readers in search of pictorial representations of mottoes, themes and stories they knew from the Bible and from literature. Such picture books were readily available for anyone to use, and were often produced in a myriad of languages, in derivative and sometimes in counterfeit editions. In effect, these were the precursors of modern collections of copyright-free clip art. The earliest modern efforts to create a history of art, from the first, were wholly dependent upon the great private and princely collections, then on the emerging "public collections," and subsequently on the collections of reproductive prints and plaster casts that began to appear early on for collectors and for use in academies.n2 The success of the reproductive print as a surrogate for other media depended upon having free, unencumbered access to sources as much as it depended upon a ready clientele and audience. Here, at last, was the first effort to offer collectible reproductions to viewers so that they could experience works they ordinarily could never manage to see. Print collections, though usually not limited to "reproductive" images, fulfilled the promise implicitly made years earlier in the 16th Century by Vasari whose Lives of the most Eminent Painters, Sculptors and Architects offered readers descriptions, but no images. Whereas Cassiano projected a unique fixed arrangement for his own collection, the distribution of reproductive prints permitted printrooms and cabinets d'estampes to create customized variable arrangements and individualized selections to satisfy unique needs.n3 In the 18th century, Adam von Bartsch produced oeuvre catalogues for the print collection of Albert Kasimir, Duke of Saxe-Teschen. This collection eventually became the print collection of the Albertina in Vienna.n4 It was photography, of course, that provided the technology to permit the formation of vast systematic image collections. It is a curious fact that the very technology responsible for the development of the modern discipline of art history was the bane of so many connoisseurs and critics. While, for modern purposes, the reproductive woodcut and print are patently insufficient, defective or skewed reproductions of originals, and accordingly in their day may have inhibited the understanding of stylistic phenomena, the new fidelity offered by photography fostered a perplexity that permitted people to believe that the "surrogate" image could, in some essential way, stand in proxy for the original. I believe it is this ambivalence that we project into the photographic reproduction, which turns it into something that partakes of both reality and representation. In the photograph, serving as the modern-day counterpart to a holy reliquary, original and surrogate become fused, thus contributing to some of our present-day copyright dilemmas.
II. The status of images (Go to outline.) The intellectual property community is currently embroiled in a controversy about the status of teaching and research collections that are composed of such "surrogate" images. We think of this controversy as one of competing economic interests. What rights are due the "inventors" of intellectual property? How are the legitimate interests and traditions of education, scholarship and national welfare to be served. But this conflict has, as well, significant symbolic dimensions -- equivalent to the pressing theological debates of times past. Like the fabricators of the kunstkammer and of Cassiano's "Paper Museum," the outcome of this struggle will decide who has hegemony over the symbolic manifestations of man-made objects. The battlefield of this conflict is strewn with treatises, manifestos, initiatives, proposed legislation and public discourse of all kinds, but today I am going to discuss a few of the battlefield monuments erected along the way: two of the so-called "Fair Use Guidelines" -- proposed treaties that attempt to mediate the differences in opinion among opposing factions. The first of these is the so-called "Classroom Guidelines" of 1976, and the second will be the recent CONFU "Guidelines for Digital Images." It has already been well established, and sanctioned by the "fair use" codification in the 1976 copyright act, that certain unlicensed non-profit educational uses (among other uses) of copyrighted materials may be allowed. Thus, it may be permissible to use copies of individual copyrighted images for purposes of teaching without having to apply for permission. While the statute seems clear enough in its intent, the guidelines that have been created to mediate this issue offer only a limited and narrow interpretation of education's claim to fair use. From my viewpoint the guidelines have attempted to turn the "right" given to education into a narrow "privilege" that is to be invoked only to cover unusual, unavoidable and temporary needs for claiming fair use. Anyone reading these guidelines might think that the law states that works can't be shown in class without permission, except in certain exceptional cases. In my mind, such a prohibition reads as a restriction on free speech that has not been applied to any of the literary academic disciplines. Further, it is not in keeping with the intent and implication of the fair use statute.n5 So much has already been said of these guidelines that there is no need to repeat it all here. Today, I wish to confine my remarks mostly to the nature of collections -- those teaching and research collections composed of what we often call "surrogate images." Such collections are culled from an endless variety of sources. They are the fount from which so many university courses are invented, and the basin into which the results of so much research are poured. We commonly call it "the slide collection," but in reality it is much more than that. It is the universal ether through which ideas about visual things ebb and flow. While these collections are generally discussed in terms of image "systematics" -- how they are catalogued -- the one feature which seems to unite them all is the seemingly unsystematic, directionless and even idiosyncratic manner by which so many have evolved. Their varied shapes and contents owe more to the history of individual curricula in patron institutions, and to the personal research activities of scholars, than to any conventional design for creating a balanced, encyclopedic or representative selection -- though these collections do exist. It is tacitly understood that the very prominence that the history of art and its associated familial occupations have achieved today must be attributed in part to the presence of the great image study collections. Photo archives, clipping files, teaching slide collections and other archives created by transferring so-called "copyrighted" and other images into a media that could be saved and used in lecture hall or for private study have served scholars well, helping indirectly but significantly to generate an expanding visually literate intelligentsia and, accordingly, contributing to the formation of today's commerce in arts related products. Indeed, I'd argue that the successes of the modern art museum movement, of the travelling museum exhibit and of the hugely profitable art publishing and facsimile industry, in some significant measure, may be attributed to scholars whose works depended upon the freedoms enjoyed by the earliest photo image collections. It is therefore all the more surprising to find that the very progeny born of these successes are now turning around with an eye to devouring their makers. In our hard-won free society scholarship at last can fulfill its ancient obligation to comment upon the artifacts and events of man and his institutions. No one thinks it infringing on the rights of creators if a poetry professor draws from his great memory of significant passages -- past and present -- to illustrate a point in class, or if he freely quotes portions of published works which he has assembled in notes and in xeroxed personal archives. The license to collect, study, examine and use the creations of mankind -- a license exercised by collectors and scholars, by reproductive graphic artists, by nearly every major and minor artist in the Western Tradition, and by the original accumulators of photographic reproductions, stems from a cultural value that precedes the murky permissions writ into the law that we call "fair use." I cannot think of a single reason why the art historian, who must use images, should not be granted the same license of citation exercised by those scholars who must use words. This traditional quest for knowledge, this belief in the supremacy of science and in the unyielding urge to erase the boundaries of the unknown (however flawed, however mutable the results), often values research above all other activities -- political, social and personal. So deeply planted are these foundation stones into the substrata of our Western ethic, that the values they promote can be represented, for better or worse, deconstructed as vainglorious greed or the precipitant of harm in such contemporary films as "Raiders of the Lost Ark," and "The English Patient." In a less cynical mode this faith drives the investigations of the likes of Sherlock Holmes and serves as the cornerstone of our great museums of art and science and is the force that drives most scholarly pursuits. The fact that our intellectual culture is ever more becoming visual can be attributed not only to the success of the visual scholarly disciplines, but also to the interconnected successes of the popular visual media: television, movies and magazines. In the literary culture which served us well over the last two thousand years, images (with notable exceptions) worked as "illustrations" or demonstrations. Horace's ancient call "Ut pictura poesis" (which may roughly be translated as "as is poetry so are pictures"), can be read as a proclamation that images are art and deserve more respect. His slogan, picked up during the Renaissance, heralded the new role images played in the dissemination of ideas and values. Today, sadly, the quest for images can be so intense as to cause the objects of our photographic desires to be driven to their deaths. The death of Diana for the sake of a photograph is tied by a fine but firm filament to the necessity to extract maximum value from visual intellectual properties. When the need "to image" can drive an economy, it will not be surprising that "owners" of pictorial intellectual property would wish to make the most of their assets. The educational and scholarly exemption from paying royalties -- what we call fair use -- of necessity must be viewed by owners as a serious impediment to achieving the desired market saturation of licensed properties. In the currency of the revolution that is transforming holdings to licenses, "fair users" must be viewed as cultural reactionaries, holding onto values that should be swept away if micro-monetary transactions and other strategies intended to diminish the predominance of tangible intellectual property are to dominate the marketplace. As electronic delivery of intellectual properties begins to prevail (as it must), and as licensed rights replace sales (as they will), the technologies that facilitate the electronic delivery of intellectual properties and which monitor their use will inevitably be able to cast its net ever more widely and use an ever finer mesh. At that time those who refuse to acknowledge "fair use" as a cultural and socially desirable value, will ultimately have the power to monitor and control, and even prevent any use they wish -- catching those uses that once slipped through the coarser sieve of manual distribution.
III. Guidelines past and present (Go to outline.) The short history of "fair use guidelines" to me indicates a transparent campaign on the part of the rights industry to curtail, limit and restrict the educational fair use of copyrighted materials. In its own way, each of the relevant guidelines allows "fair use" only for those situations that minimally affect rights holders. For example, in the first of these, the so-called "Educational Fair Use Guidelines" (or "Classroom Guidelines") submitted in 1976,n6 the right to assemble copies of copyrighted works is severely restricted by forcing "fair use" to conform to three draconian restrictions: "Brevity," "Spontaneity," and by the limitation of the "Cumulative Effect" of making and keeping copies. Here, ultimately, all educational uses are expected to conform to the same law crafted for for-profit users of intellectual properties. Fair use is set up as a temporary exemption for emergency situations. Education, it would seem, is just another business -- a knowledge industry, perhaps. Indeed, many of the "privileges" given to education in these guidelines are no more than what, for business, slips through under the radar of normal copyright surveillance. Based on the intent of the Fair Use statute -- the promotion of learning and science -- for education and scholarship. one should expect that the net of radar surveillance would be aimed a little high on purpose. Under the provisions of the Classroom Guidelines, educational materials, including pictures, can only be copied for class use 1) if the order to copy comes from the teacher using the copy, 2) if they are to be used only in the class for which the copy was made, and (among other restrictions) 3) if, in the case of images, only a single image per book or periodical is made for the class. In addition, copying is allowed only in such circumstances when it is not feasible formally to request permission for use, and in any case, only nine such instances can be allowed for any single course. If such "guidelines" were to be invested with the full force and authority of "law," and obeyed, quite obviously they would end humanities teaching as we know it today -- encumbering it with a burdensome bureaucracy of rights management and imposing plenty of penny-ante fees. One can imagine that taxpayer watch-dog groups, many not fully convinced that the cost of education, today, is fully worthwhile, would have a field-day with the budget line for classroom rights and rights management. If they do not object to the principle of limiting fair use, they certainly will object to the use of many copyrighted properties in class. As far as I can tell, the "Classroom Guidelines" slipped into respectability without serious objection and without scrutiny by those parties most intimately affected by them. This was not the case with the current CONFU "Guidelines for Digital Images" which, for all the work put into them, nonetheless attempt to impose similar restrictions as a prerequisite to entry into the digital age. Many reasons why these kinds of limitations and requirements are impractical and unworkable have been cited in the literature flowing in the wake of the proposed CONFU guidelines for digital images, and are reiterated in the numerous official letters to Peter Fowler of the U.S. Patent and Trademark Office from those institutions that reject adoption of these fair use guidelines, so I won't repeat them here.n7 Fair-minded people may be tempted to give the guidelines a test trial. I do not believe that the guidelines, as they now stand, should be the basis for such experimentation and trials, however, for while parts are indeed workable, and parts obviously fair, to accept them -- even temporarily -- even provisionally -- is to accept, in principle, the limited and repugnant definition of fair use they advocate and impose. However, if universal licensing is inevitable, I predict that there will be several severe and unavoidable consequences that will follow in its wake: Adherence to the strict requirements of such rules, in effect, will turn educational institutions into captured clients of image providers -- which would not be so bad in itself -- if it would not at the same time make educational resources subject to commercial considerations. While some interdependence between education and commerce is unavoidable, even desirable, when education must compete with popular markets for commercial attention, education will surely suffer. The brilliance of the fair use doctrine is that to some extent it insulates education and scholarship from the mercurial marketplace. Without fair use, subtly, but effectively our tradition of free inquiry will be throttled and compromised. When educational institutions must choose their images primarily from those resources offered to them -- those images commercially viable to be offered -- and when they are not allowed to capitalize on their costly investment in "fair use" -- often the breeding grounds for new scholarly research -- teaching will tend to limit itself to pat surveys and repetitions of increasingly uninventive university courses. What will happen if the CONFU guidelines are turned into requirements in colleges and universities? The 1976 "Educational Guidelines" have been accepted (in principle) by numerous educational institutions; but, because of their unworkability, in practice, they are frequently ignored. For attorneys representing those institutions who are less concerned with an educational mission than they are in obtaining protection from real or imagined liability, such guidelines construct a desirable "wall" beyond which lies a forbidden territory where educational faculty are not permitted to wander. But, if anything, these rules are convenient, and their unambiguous wording gives welcome assurance to the wary user community. Like storekeepers acquiescing to the pressures of gangland protection, those who elect to follow the guidelines -- in spite of the severity of their restrictions -- are promised "safe harbor" where all their voyages may end without peril, but these voyages are doomed to travel the old less venturesome sea lanes. If true education and true scholarship is the goal,n8 then such concessions are untenable -- as already proven by the number of visual resources collections hobbled by careful administrators who have forced them to chose only from the relatively meager variety of images available commercially. It has often been noted that the very specificity of guideline-inspired rules creates de facto standards, and tends to invest guidelines with an appearance of custom and law, this, in spite of the fact that it clearly states in the preamble of all the guidelines that the proposed rules are an interpretation of "the minimal, and not the maximum standards of educational fair use..."n9 When we are asked to try out the guidelines, however, we are being asked to consider them as a "maximum" standard. It is lucky that, as guidelines, none of these have any legal standing. This is important to rembember since their provisions are often quoted by adherents as if they are law. Perhaps the fact that no publisher of books and no rights-holder of images has ever brought an infringement action against any visual resources collection engaged in full-time copystand photography and scanning of books, magazines and photographs, indicates that those who maintain an economic interest in the rights in these materials, themselves, do not have genuine faith in the efficacy, enforceability or justice of such guidelines. Guidelines, we must realize, serve a double purpose: on one hand, they represent wishful thinking on the part of the rights industry -- a way to stake out territory -- and on the other, they exist to intimidate potential fair users. The CONFU guidelines on the use of digital images continue the assault on fair use. This prejudice against fair use is carried into the digital age in the White Paper.n10 In an attempt to marginalize fair use, the White Paper, in a now famous passage, hypothesizes that fair use will become an anachronism in the digital age.n11 Accordingly, the "Proposal for Educational Fair Use Guidelines for Digital Images," takes pains to make it as difficult as possible for visual resources collections to clear digital rights for the use of images that may already be in their collections, and it makes no permanent concession at all for digitizing new images. In my opinion, the current need to digitize images is being used as the pretext to correct imagined past transgressions once and for all. Forcing collections to clear each layer of rights underlying a digital image can only be understood as a cynical attempt to add layers of protocol in order to discourage anyone from going to the trouble to obtain such stacked rights. It is a bald-faced effort to make it economically advantageous to abandon old images and, correspondingly, to make it seemingly attractive to contract for the use of new ones offered by those who hold the rights to digital media. One can well understand the significance this plays in the agenda of rights holders, for, at the dawn of the digital age, they must believe, if fair use is not to be controlled now, it never will be. The magnitude of the task of clearing rights to pre-existing collections can only be imagined. Once the real cost of clearing rights has been established, I am certain that no administrator will authorize such expenditures.n12 If the guidelines have their sway, future image resources will be composed primarily of ephemeral licensed images, and will be considerably less ambitious in their depth of documentation. Ironically, those who wish to destroy the arts and arts education in the United States, the enemies of the NEA, for example, will have found an unsuspecting ally among those whose livelihoods depend on the very success of arts education. By insisting that rights accrue with each layer of reproduction underlying an image, the Guidelines fail to acknowledge the validity of the single most important requirement of copyright: that the copyrighted object should have at least some degree of originality. It is difficult to follow any argument that asserts that each descending level of fidelity qualifies as a new layer of copyrightable invention. Further to this point: since the guidelines exclude from their province any work in the public domain, it begs the question to decide whether all, some, or no works in the public domain, in reproduction, are represented by copyrighted entities -- as is so often claimed. The main problem with guidelines, as I see it, however, is that they are negotiated settlements. Such negotiated solutions, however, tend to ignore the law itself. Section 107 of the Copyright Act, where we encounter the definition of "fair use," places no limits on the number of usages or on the freedom to collect fair use reproductions. In general, it is extremely difficult to start with the law and end up with the guidelines. Nearly all guideline-inspired prohibitions (if they depend on the law at all) derive from broad prejudicial interpretations of the fair use statute. The only clause in the fair use section of the copyright code that seems relevant to the effort to stem the established practices of visual resources collections and of art historians is the one which instructs the user to consider the economic impact on the rights holder. And here, I'd contend that only those images from those businesses that have made a good faith effort to develop a customer base for their products, namely the commercial slide vendors, and others who supply resources under contract, cannot be copied or digitized under the fair use privilege. To insist, as the statute indicates, that the user must consider the "potential" economic impact of a use, is to require the user, himself, to contribute to the seller's business plan, and places an unfair overly broad obligation on the user that may not be sustained by the courts. When the underlying work is in the public domain and the holder of that work uses his ownership to exert a monopolistic interest in copyrighted reproductions of that work, one wonders how federal anti-monopoly, restraint of trade, and anti-trust legislation may apply. The best advice I have for publishers and other would-be marketers of visual intellectual properties is for them to seize the opportunities that lie before them. They should be encouraged to produce catalogues and offer slides and electronic media and to register their works in image source directories, to use the services of image brokers and to develop price schedules that represent fair value for educational institutions. If rights holders actively cultivate products for, and solicit business from educational institutions, profits will certainly be greater than those garnered from fees that fall into their laps by squeezing fair use to its minimum. To this point, it should be noted that one of the most prominent complaints heard from VR curators is about the dearth of sources for high quality images. If my reading is correct, obtaining images under fair use may be necessary, but it is not the preferred method of image acquisition; it may not even be the cheapest. There are business opportunities here. Accordingly, I am here challenging free enterprise to be enterprising. A rights-holding aristocracy living off of rents, royalties and residuals will have no incentives to meet the challenges posed to it by venturesome academics. Scholars will be quick to make good use of those commercial resources made available to them, and will be just as quick under fair use to find ways to use resources that are not.
IV. Collections (Go to outline.) I want next to discuss the copyright implications of educational collections -- as collections. All the published guidelines specifically rule out collection-building as a fair use, even though there is nothing implied or stated in the fair use section of the Copyright Act that speaks either for or against making fair-use collections. Indeed, the law considers the copyright implications of individual works in compilations, and defines them as copyrightable entities, but does not touch on the process of creating fair use research collections -- bringing works together and integrating them into a prearranged schema to form something new, a process sometimes called "collocation." For those not claiming fair use, the copyright act expressly prohibits all unauthorized reproduction, even when there is no commercial intent. But for fair use purposes I believe a distinction must be drawn between a "use" and a "reproduction." I'm not certain that the mere presence of a work in a visual arts collection qualifies as a "use" even though it most certainly will be a "reproduction." Works are used when they are shown in class, when they are placed in student and professional papers, when they are adapted by artists, when they are pulled from a collection and studied and compared or when they are published; but, in the collection, itself, pictures, be they analogue or digital, are not used; they are dormant; at most they serve as browse objects, index guides to sources, or place-holders -- they can sit in a collection unused for an eternity, in a state of perpetual potentiality. Research collections created in the past under traditional practices and those assembled today under fair use should be allowed to survive and prosper. The use to which such images are put, however, must undergo a separate four-factor fair use analysis. It must be remembered that older collections may hold a large number of public domain photographs and images. The distinction we defined between reproduction and use for scholarly collections finds a curious analogue in standard commercial practices. In the commercial world, permission is requested and royalties are paid only when a work finally is to be "used," not when it is merely copied for planning or lay-out in preparation for a potential use. This practice is an obvious infringement of the law, which, in some cases, such as this one, places an unfair burden on commercial users. Such conventional liberties, however, are indispensable pre-requisites for licensed usages and are overlooked simply because they make commercial use possible. In academic visual resources collections images are extracted from their sources. Such transpositions should not be called "distributions." Typically such images derive directly from books purchased by the university. Even without claiming fair use, any book owner has the right to show it or lend it to someone else. Under fair use, having access to a book, and certainly ownership of it, at minimum bestows the right to use its images as illustrations in class. If it is not an infringement to show a class pictures in a book, under fair use, I can't see how it is an infringement to keep copies of those pictures as long as minimally 1) the book is owned by the holder of the copy and 2) subsequent uses do not imply rights that would pertain to an infringing distribution.n13 No discussion of image collections in this context has taken into account the function and meaning of identifying text. If images were collected without identifying text, to educators and scholars they would be almost functionally useless. Images function in collections by virtue of their collocation, by the depth of their identification and by the application of systematic terminology control -- that is by the arrangements of the images within the collection schema, by bringing to them the historical results of scholarship, and by making them conform to external cataloging standards that pertain to one or several collection missions. Said briefly, the intellectual content of collections is not visual. While some of this information undoubtedly originates in image sources, it rarely merely repeats what has been found. These "facts" (in reality, often opinions) are not copyrightable, and are so often changed, rectified, classified and expanded in the process of cataloging, that no one can rightly say that they belong to or with the original source. In such image-bases, the central intellectual agent does not come from the image, but 1) from information about the image that has been added in cataloging and 2) from the context in which the image has been placed. Any obligation imposed by an image owner to identify an image in a certain way (except for attribution of source and of copyright) should be viewed as an unethical imposition on scholarly license and free expression. The use of such identifying data is clearly not a question of infringing any copyright of compilation. The fact that individual works, even when taken from compilations, are often disassociated, transformed and arranged to meet the systematic requirements of the cataloguing database, indicates that the collection as a whole, with whatever systematic standards it has chosen to adopt, is, itself, an intellectual product that merits acknowledgement as wholly "transformative," and consequently must be respected as an independent fair use entity. One of the great contributions of visual resources collections lies in their uniqueness. They are crafted and molded by those individuals who, through the history of collection acquisition, have contributed their singular knowledge and talents to its evolving form. Many such collections contain specialized sub-collections of local interest; many, such as the Index of Christian Art, display arrangements and structures that reflect the unique missions, specialized studies or methodological attitudes of their curators and directors. Many contain donated images that will never be collected elsewhere. In short, the archival value and contribution to world knowledge of so many VR collections is so great that as a class they deserve special protection. Collections composed of many licensed properties may be easier to use, more entertainingly visual, but, in comparison, they surely will be less interesting intellectually -- lacking in the rich culture infused through collection-building. Mission-mixtures of images, licensed in bulk may be useful, but there is no underlying significance to their presence or selection and, because they may be here today and gone tomorrow, there is no incentive to provide them with the rich deeply documented data often given to permanent collections. Efforts to create networked archives should not overlook the rich peculiar individuality of traditional collections. In her recent article in Museum News on fair use, Christine Steiner, General Council to the Getty Trust, notes that the courts, when considering fair use cases, are not limited to assessing the statute's four fair use criteria.n14 They can weigh, as well, other factors such as the benefit to society. If the court were asked to judge a collection -- as a collection -- that has been allowed freely to develop and prosper for the good of education, in my mind it is clear that serious consideration must be given to a request to call the contents of such educational collections fairly used. Educational and documentary collections are vital resources for modern civilization. Posed against the cacophonous background of the traffic in commercial images, and against the fickle superficial tastes of an acquisitive public, such collections stand out as sanctuaries of ordered knowledge, analogous in my mind to those monastic outposts that dotted the early European wilderness, preserving and promulgating the accumulated linguistic, literary and scientific riches of the vanishing West Latin civilization. In today's digital environment repositories of images have expanded their mission to include audiences they previously were unable to serve. This does place an extra burden on them to inhibit the unwarranted spread of intellectual properties they do not own. Here the guidelines' suggestions that use be restricted to secure networks must be considered. But the public, including the wide university community, must be served, too. Tactics limiting the dissemination and use of high-quality images of commercial value are not unfair, but low-quality, identifiable images, equivalent to what might be found in scholarly books, or, perhaps, watermarked images, should be made available to audiences outside the university community when appropriate. But university communities are networks which exist to serve each other and to divide the responsibilities of accumulating resources. To serve them, along with unaffiliated independent scholars, requires an understanding of fair use that is considerably wider than defined by a "secure" campus network. The Ashcroft Bill, at this moment, proposing to guarantee fair use in networked environments is admirable in this respect, but how to distinguish between fair and unfair uses remains problematic. The solution may lie, as the Ashcroft Bill proposes, in expanding the realm of uninfringing activities and tightening scrutiny for infringing ones. A solution that considers the role of images as international cultural property could be commendable.
V: Conclusion (Go to outline.) In the scheme of things, perhaps owners of intellectual properties should think of the "industry" of education and scholarship as a massive low-cost universal research-and-development unit, one that offers them in the bargain many free product promotional services. The relationship between the powers of copyright holders and fair users is a symbiotic one -- to flourish they must feed off each other -- they must depend on each other. If these rationales fail to satisfy, if fair use in an educational climate is forced to erode to the levels defined in the "fair use guidelines," thus piling on untold administrative and licensing costs to educators and scholars, the laws of economics will undoubtedly be awakened from their lethargy and forced into reluctant motion, and there will be pressures to cut costs and to find new sources of income. Among potential resources are the vast intellectual properties that academe habitually cedes to publishers for little or no compensation and also potential royalty requests for the consequential fame such efforts bring to artists and their images. In the world of tightly administered economics, what goes around, generally comes around. The foregoing discussion has wandered from the issue of how the CONFU guidelines on digital images are going to be used. But, this journey is not without purpose. From it I hope the reader has been made aware that these guidelines force education to compromise one of its most vital goals: its mission to interpret and preserve the past and to pass past and present to the future. When the guidelines focus so much attention on the commercial nature of image transactions and attempt to substitute the mercantile model for the free interchange of ideas, it compels the user to forget the importance of the larger picture. In our society, if education and scholarship are to be esteemed to the degree to which we profess, then, perhaps it is appropriate to define our intellectual property system anew from the top down, or, better, to create or enforce the codes that serve the goals we value. If our faith is not cynical, and we do hold fast onto our beliefs in the rewards and rights of scholarship, believe me, free enterprisers will summon their inexhaustible ingenuity and pluck the golden apple from the expanding tree of human knowledge -- grown from soil fairly used. Go to Home Page | Robert's Copyright Menu Notes: 1 See Sheila McTighe, Nicolas Poussin's Landscape Allegories, Cambridge, 1996, pp. 99ff.n1text 2 In 1618 Cardinal Francesco Borromeo gave his private collection to the city of Milan to form the Pinacoteca Ambrosiana. The primary purpose of the collection was to serve as a teaching resource for his Accademia del Disegno. In addition to original works, the collection held casts of antique sculpture. See, Pamela Margaret Jones, "Federico Borromeo's Pinacoteca Ambrosiana," PhD diss, Brown University, 1985.n2text 3 Thanks to Maryly Snow for a variety of reminders.n3text 4 Continued in the 20th century by "The Illustrated Bartsch." Abaris Books.n4text 5 Rudy Giuliani's administration in New York city, in an attempt to remove street artists from the sidewalks, has stated that the right of free speech for artists must obey a lesser standard than for writers. Further, see: http://www.openair.org/alerts/artist/nyc.html .n5text 6 Accepted by the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision, by the Author's League of America, Inc., and by the Association of American Publishers.n6text 7 See http://www.uspto.gov/web/offices/dcom/olia/confu/notif.htm and http://www.uspto.gov/web/offices/dcom/olia/confu/comments.htm n7text 8 Note that I consider "education" and "scholarship" as inseparable, hence the singular verb.n8text 9 United States Copyright Office, pamphlet 21.n9text 10 The Working Group on Intellectual Property Rights of the U.S. Information Infrastructure Task Force. The "White Paper" is available at URL: http://www.uspto.gov/web/ipnii/. It may also be obtained by writing to "Intellectual Property and the NII," c/o Terri A. Southwick, Attorney-Advisor, Office of Legislative and International Affairs, U.S. Patent and Trademark Office, Box 4, Washington, D.C., 20231.n10text 11 See Stephen Weil, "Not Money, Control," Museum News, Sept/Oct 1997, p. 38.n11text 12 See letters by R. Gerrard and P. Walsh, Spectra, Vol. 24, No. 4 (Summer 1997), pp. 10 ff.n12text 13 In an educational institution, the distinctions between passing a book around, holding it up for students to see, producing a "surrogate" image for projection or study, and posting an electronic version of an image from the book onto a secure network, are merely technical, and, to me, do not qualify as distributions.n13text 14 "The Double-Edged Sword: Museums and the Fair Use Doctrine," Sept/Oct 1997, p. 48 ff.n14text
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