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Copyright Law in the Digital World:
Fair Use,
Education and Libraries after CONFU
A Town Meeting in
Portland Oregon
September 27, 1997
Trying
Out the Guidelines
Robert A. Baron
Arts Information Consultant
Write to
To the reader: The text
presented at the Portland "Town Meeting" begins at Section III.
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I. Collections and Representations
A. Early collections and collectors support
scholarship.
1. The "Paper
Museum" of Cassiano dal Pozzo.
a. Museum
of surrogate images.
b. Museums
and systematics.
2. Early history of
surrogate images
a. Subject
and content
b.
Audience
3. Princely, private and
public collections
4. Role of reproductive
print as a surrogate
a. Birth
of structured collections
b.
Collections as resource
c. Adam
von Bartsch
B. Role of photography in creating image
resources
1. Photography as proxy
2. Photography as
representation
II. The Status of Images
A. Symbolic dimensions of the controversy
B. Monuments of the controversy: guidelines
C. Fair Use and guideline restrictions
1. Intent of Fair Use
legislation
2. Rights vs. Privileges
3. Guideline
restrictions
D. The "collection" as a Visual
Resource
1. Role of the
collection
2. Sources of the
collection
3. Meaning of the
collection
4. Evolution of the
collection
5. Influence of the
collection
E. Attacking the collection
1. Tradition of
scholarly license
2. Precedence to
"fair use"
3. Tradition and
"fair use"
F. Societal values and research
G. Western Visual Culture
1. Ancient and
Renaissance Tradition
2. Modern visual culture
3. Role of "fair
users" in an owner society
4. Squeezing out
"fair users"
III. Guidelines past and present
A. Guidelines as an industry document
B. The "Classroom Guidelines"
1. Killing "fair
use"
2. Restrictions on
images
3. Danger to teaching
4. Unworkability
C. Warnings
1. Against trying
guidelines
2. Fear of loss of
resources
D. CONFU digital image guidelines
1. Effect of Guidelines
in practice
a.
Unworkability
b. Safe
but shallow harbor
c. Minimum
restrictions turn maximum
d. Legal
standing; Confused with law
e.
Guidelines and intimidation
f. Kill
off fair use
2. Working the
guidelines
a.
Clearing rights; no fair use
b. Pretext
for abandoning collections
c.
Industry motive
d.
Unaffordability
e.
Anti-education
3. Stacked rights
a.
Reproduction Fidelity and rights
b.
Reproduction and test for originality
4. Guidelines as
negotiations
a. Biased
four-factor analysis
b.
Potential economic impact
c.
Good-faith efforts to develop product
d.
Anti-monopoly, restraint of trade,
anti-trust
5. Opportunity for
rights holders
a.
Preference not to use fair use
b. Market
waiting to be made
c.
Resources needed
IV. Collections
A. Statute prohibitions against collection building
1. Protection for
copyrighted collections
2. Collocations
B. Collections and fair use
1. Distinction between
"use" and "reproduction"
2. Reproduction
infringements among for-profits
3. Scholarly collections
and "reproduction"
4. Right to use owned
images in teaching
C. Text of collections
1. Function of text;
provides value to image
2. Text and collection
collocation
3. Text interprets
4. Text as intellectual
center of collection
5. Images and text
context
6. Text, images and
academic freedom
D. Collections and copyright issues
1. Copyrights of compilation
2. Collections as
transformative
3. Collections as a fair
use
E. Social, intellectual contribution of
collections
1. Uniqueness of
collections
2. Archival value
3. Individuality
4. Deserving special
protection
5. Beyond four-factor
analysis; benefit to society
6. Role in advancing and
preserving civilization
7. Expanded mission in
today's on-line environment
V. Conclusion
A. Fair use benefits rights-holders
B. Consequences of loss of fair use
C. Fair use and goals of education
D. Opportunity knocks
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