Town Meeting on Copyright and Fair Use

Copyright and Fair use in the Digital World:
Views from the worlds of
Scholarship, Publishing and Museums.
Copyright Initiatives and Resource Delivery,
Being the final Meeting in the Series

held at the

1998 Annual Meeting of the College Art Association
Toronto, Canada
Thursday, February 26, 1998.

Sponsored by the Samuel H. Kress Foundation, The College Art Association,
National Initiative for a Networked Cultural Heritage and
American Council of Learned Societies.

Visits from 7/11/1998 to 4/11/2001 = 02185

+ + +

Information about the Conference and Registration

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R.Baron's Home Page |
Audio Cassettes of Program



  Town Meeting Program 

12:30 - 2:00pm
Strategies and Technologies
Susan Ball,
Executive Director, College Art Association
Welcoming Remarks and Introduction
Christine L. Sundt,
Chair, CAA Committee on Intellectual Property
Visual Resources Curator, Architecture & Allied Arts Library, University of Oregon
The Town Meetings in Context
Robert A. Baron,
Co-chair, Toronto Town Meeting Committee
Arts Information Consultant
Introduction to the Speakers
Introduction to the speakers | Biography
Peter Walsh
Director of Information and Institutional Relations, Davis Museum and Cultural Center, Wellesley College (2002)
The Coy Copy: New Technologies and the Mysteries of Reproduction
Presenter's Statement | Biography
Presenter's Paper
Gary Schwartz
Director, Curators of Dutch Art (CODART), Netherlands Institute for Cultural Heritage  (2002)
No Fair! Long-Term Prospects of Regaining Unencumbered Use
Presenter's Statement | Biography
Presenter's Paper
David L. Green,
Executive Director, National Initiative for a Networked Cultural Heritage
Your Copyright Future Is Being Determined NOW!
Presenter's Statement | Biography
Presenter's Paper or
Christine L. Sundt, moderator Discussion Session (time permitting).
SESSION TWO: 5:30 - 7:00pm Educational Image Site-Licensing Debated:
Will Site-Licensing Eliminate Fair Use?
Susan Ball Welcoming Remarks and Introduction
Synopsis and achievement of The Town Meeting Program
Leila W. Kinney
Co-chair, Toronto Town Meeting Committee
Department of Architecture, Massachusetts Institute of Technology
[Defining the debate]
Introduction to the Debate| Biography
Maxwell L. Anderson
Director, Art Museum Network
Director, Whitney Museum of American Art. (formerly, director of the Art Gallery of Ontario) and,
Liaison for Information Technology, Association of Art Museum Directors
[The Case for Site-Licensing]
Presenter's Statement
Transcription of Presenter's Talk (2002)
Howard Besser
Adjunct Associate Professor
School of Information Management & Systems, University of California, Berkeley (2002)
[The Case against Site-Licensing]
Presenter's Statement | Biography
Presenter's Paper (posted 12/5/99)
Audience Participation Section There will be time for questions about site-licensed images and Fair Use relating to the AMICO debate.
Interested readers and attendees are urged to submit their questions in advance at the following prompt:
Submit Questions.


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Participant Statements
Session One

Peter Walsh:
The Coy Copy: New Technologies and the Mysteries of Reproduction

This is about the historical definition of a "copy," how it is crucial to copyright in visual images, and why ambiguities over its precise nature have been created by new technology.
Return to Program Peter Walsh's Paper

Gary Schwartz:
No Fair! Long-Term Prospects of Regaining Unencumbered Use

"In essence, the history of modern copyright is the history of the degree to which 'authors' [i.e. copyright holders] have succeeded in finding support in society for legal protection of their material and immaterial interests" (Grosheide).

In the current discussions on fair use, art historians are positioned as copyright consumers, applying for special treatment from copyright holders on idealistic grounds. This is an unenviable position. The tide of legal favor is with copyright holders, and they are not inclined to relinquish the increasingly lucrative rights that are coming their way. Whatever exemptions we may extract will not be universally granted, nor for very long, and they will not be given with good grace. The doctrine of fair use is too ill-defined to provide us with the right to use, on our own terms, materials controlled by others. As things stand, we are like the milch cow politely requesting the farmer to abstain from milking her.

However, we can also take another stance in this matter. We can also ride the rising tide of more powerful protection for copyright holders. Just as increasing numbers of participants in the arts are claiming protection for their work, so can we, as scholars and teachers. We too are creators of valuable intellectual property. In addition to the very limited degree to which we now claim and collect royalties as individual copyright holders, we can also lay claim to collective rights for the attainments of art history as a field. Any use of the ideas, knowledge and information we produce, by museums, image brokers, the press or any other party, should be charged for at a rate that would offset - at a premium - what we are being asked to cede by pay of payment for and control of images.

Historically, scholars have lagged far behind writers, creative artists and performing artists in asserting our claims as producers of cultural goods. Now that our free access to the basic materials with which we have always worked is being blocked, the time has come to close the gap. In view of the constant expansion of the boundaries for copyright being claimed by other parties, this should not be difficult under prevailing law.

At the same time, our adversary position vis--vis claimants on copyright for teaching and research materials should be sharpened. Their claims can be combated on grounds other than fair use. Anti-trust law offers possibilities for acquiring photographic material from museums via non-museum channels. And once these photos exist, I am assured by counsel, museums have no right to charge fees for reproducing them. The same applies to illustrations derived from printed books. European anti-trust law may provide better grounds for taking test trials to court. With a careful campaign, we should be able to create legal precedent for the right to unencumbered use of printed materials or photos made on our own commission of works of art in the public domain.
Return to Program Gary Schwartz' Paper

David Green:
Your Copyright Future is Being Determined NOW!

This is a critical time in Congress for determining how we operate in cyberspace. It's a critical time because in this session one of two visions of what copyright is all about will be enacted in a bill to revise copyright law for the digital era. It is a critical time because the very notion of what copyright law until now has been about is being challenged both from within and without. Although the future may bring us a panoply of new arrangements for the exchange of materials on the Web, I believe copyright law is currently the best safeguard that creators, owners and users of material have for a balance between private interest and the public good.

Briefly I will summarize current copyright developments in Congress, the forces behind them and the assumptions, visions and principles these developments are built upon. This will include reference to Fair Use, the now defunct Conference on Fair Use and its proposed guidelines and the next steps forward for establishing best practices in using and managing copyright materials online, in the classroom, the studio and the study.
Return to Program David Green's Paper


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Participant Statements
Session Two

Maxwell L. Anderson:
The presumed conflict between "Fair Use" in the United States and the ability of rights holders to license content stems from a misunderstanding. The Art Museum Image Consortium (AMICO) will not seek to undermine Fair Use, or Fair Dealing in Canada. AMICO's licenses are explicitly written to state that they do not limit Fair Use. They include, for example, features like remote access, manipulation for study purposes, retention in a portfolio, and regular use in curricula. In addition, licensing provides access to new forms of information in new depths. Through AMICO the end user will be able to allow access to a range of museum documentation not readily accessible in other ways. The Art Gallery of Ontario, for example, with the world's preeminent collection of Henry Moore's works, can add video footage of Moore, letters between the Gallery and Moore, and newspaper clippings of the controversy of his donation to the Gallery. Numerous other advantages to AMICO will be discussed, including how networked information will allow for more efficient delivery of the information museums have been diligently gathering for decades, consistency in authoritative data available at multiple universities, better definition of the needs of end users, the creation of a critical mass of information, and a mechanism for ongoing data collection and dissemination while holding the fee basis stable. Museums must find a way to collaborate in the provision of collections information, and AMICO is the most attractive option that has yet come before North America's leading art museums. Return to Program.

Howard Besser:
The concept of Fair Use is absolutely critical to scholarship in the Humanities. Various powerful forces have launched a major assault on Fair Use in the digital realm. This is part of a general trend to commodify information. Unless scholars and users vigorously oppose the set of assaults on Fair Use, scholarship will severely suffer, as will allied concepts such as access-to-information and diversity. Return to Program.

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Participant Biographies

Robert Baron:
Art historian and arts informatics consultant (Harpur College and IFA) specializes in information systems and collection management issues relating to fine arts collections. He has served as Museum Computer Consultant for the Art Museum of Princeton University and has aided academic and scholarly museums such as the Art Museum of the University of New Mexico and the Walters Art Gallery. A number of his papers and collection management guides may be found on his website.

During the 1960s and 1970s Mr. Baron served on the faculties of the Fashion Institute of Technology and the California State University at Fullerton. Recently he has published papers on intellectual property as pertaining to the scholarly and educational use of visual materials. For Visual Resources he has guest edited the special edition Copyright and Fair Use: The Great Image Debate. In September 1997 he contributed two papers to the Portland Oregon Town Meeting on Copyright that dealt with CONFU and its aftermath. One paper discusses the challenge the CONFU guidelines put to education, and the other outlines the dangers posed to educators and scholars by the stipulations in the CONFU guidelines for the use of digital materials.

Mr. Baron is co-chair (with Leila Kinney) of this Toronto Town Meeting, and has been named as a forthcoming chair of the College Art Association's Committee on Intellectual Property. He serves on the advisory board of the Image Directory, a project of Academic Press.

Robert Baron also manages a small business that provides slides and images of use to art historians and teachers. He serves on the Board of Directors of Bet Am Shalom, White Plains, NY and edits and publishes their monthly newsletter. Articles and book reviews by Robert Baron may be found in Museum Management and Curatorship and in Culturefront, a publication of the New York State Council on the Humanities. Robert Baron is working on a monograph on the French Renaissance book illustrator Bernard Salomon which has been chosen to be part of The Illustrated Bartsch. In addition, he has been promising himself to finish an article on the eucharistic implications of Rubens' Triumph of the Eucharist tapestries. His website has become a focal point for Giocondaphiliacs. Return to Program.

Howard Besser:
Howard Besser ( is Adjunct Associate Professor at UC Berkeley's School of Information Management & Systems, where he teaches, does research, and supervises a grant examining a multi-institution digital library project. He also holds an appointment at the Berkeley Multimedia Research Center. From 1994-96 he was on the faculty of the University of Michigan's School of Information where he headed a committee developing a curriculum in multimedia and digital publishing. He has also been an Assistant Professor at the University of Pittsburgh.

Dr. Besser's three main interest areas are Multimedia Databases (particularly in cultural institutions), the social effects of information technology, and the development of new ways to teach with technology. He is currently working on a book on Image Databases as part of the ASIS Monograph series, as well as a book on the social effects of information technology. Under a grant from the Kellogg Foundation to the University of Michigan
to revamp curriculum, Howard chaired a subcommittee that examined the creation and design of digital documents, and another committee that was designing a new Information Studies Media Lab.

Howard is also actively involved with museums. He has served on the Management Committee of the Museum Educational Site Licensing Project since its inception. For several years he was in charge of long-range information planning for the Canadian Centre for Architecture in Montreal, and for many years he headed information technology for Berkeley's University Art Museum.

travels a lot, speaks frequently at professional conferences, gives workshops on Image Databases about half a dozen times a year, and consults for libraries, museums, and other institutions. For several years he has served as co-chair of the American Library Association's Technology & the Arts Interest Group (co-sponsored by the Association of College & Research Libraries and the Library Information Technology Association). From January thru May of 1995 he taught a distance learning class in both Ann Arbor and Berkeley simultaneously, where students in both locations used multimedia and networks to collaborate on projects. Return to Program.

David Green:
Director of the new National Initiative for a Networked Cultural Heritage (NINCH), David Green has worked with the contemporary arts for the past decade and has a doctorate in American Studies from Brown University.

Most recently, as Director of Communications at the New York Foundation for the Arts, Dr. Green was instrumental in the development of Arts Wire, the nation's largest online network for the arts community. At the same time, he also ran British Arts in New York, a program that fostered and promoted British arts expression in New York City.
Return to Program David Green's Paper

Leila W. Kinney:
Leila Kinney teaches in the History, Theory, and Criticism section in of the School of Architecture at MIT. She specializes in modern art and also teaches course in the history of new visual technologies. She has been involved in several areas of electronic publication: creating "in-house" course materials for MIT's campus network; writing position papers for the scholarly and teaching constituency in CAA in response to CONFU; and establishing a word-wide-web site for the College Art Association. She has served as a member and Co-Chair of the CEI (the Committee on Electronic Information) of the CAA and more recently as Electronic Editor. Return to Program.

Gary Schwartz:
Gary Schwartz (Brooklyn 1940) studied art history at NYU and Johns Hopkins. In 1965 he moved to the Netherlands, where he has been active as an art historian, translator, writer and publisher. His publishing company was acquired in 1988 by the Dutch Government Publishing Office, for which he ran the imprint Gary Schwartz | SDU until 1991. His main books are Rembrandt, His Life, His Paintings (1985), Pieter Saenredam: The Painter and His Time (1990) and Bets and Scams: A Novel of the Art World (1996). His most recent book is Hieronymus Bosch (1997), in the First Impressions series published by Abrams for young readers. Schwartz is a regular contributor to magazines and newspapers in the Netherlands, Germany and the US. He writes a bi-weekly column on art history in the Dutch press, which is circulated in English on Internet under the title Form Follows Dysfunction. In January 1998 he established CODART (Curators of Dutch Art), an association for all those who fit the eponymous description.
Gary Schwartz, Herengracht 22, 3601 AM Maarssen, The Netherlands
Return to Program Gary Schwartz' Paper

Peter Walsh:
Peter Walsh is in charge of new technology projects and external relations at the Davis Museum and Cultural Center, Wellesley College, which he joined in 1994. At the Davis, he has acted at the Museum’s principal delegate to the planning sessions of the Art Museum Image Collaborative AMICO) of which the Davis is a founding member. Prior to coming to Wellesley, he served as a communications and publications specialist at the Museum of Fine Arts, Boston, and as director of information and publications at the Harvard University Art Museums. Currently chairman of the Massachusetts Art Commission, he has published, lectured, and taught on political issues in the visual arts, the impact of new technologies on culture, and on issues in copyright and intellectual property. He holds degrees in art history from Oberlin College and Harvard University, where he also studied design and business management. Return to Program. Peter Walsh's Paper

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Additional On-Line Resources
Only a few of the many copyright online resources are listed below.
Each of the hyperlinks below leads to lists of important sources.

Several Key Copyright Websites:
USPTO: US Patent and Trademark Office
NINCH: Copyright Resources:
NINCH: Town Meetings and other Events:
NINCH: Summary Report on Town Meetings:
University of Texas:

Copyright Websites with special significance for the Visual Arts:
Christine Sundt's Copyright Page:
Visual Resources Association Copyright Page:

On image licensing for academia and scholarship:
NINCH: Licensing Resources and Issues
MESL: Museum Educational Site Licensing Project ]dead link 2002 instead see the following Getty publications: and
also consult Howard Besser's MESL reports:
and on the controversy regarding this Toronto session: and associated links on this page

AMICO: Art Museum Image Consortium
MDLC: Museum Digital Licensing Collective, Inc. ]dead link 2002


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Audio Cassette Information

Audio Cassettes of the "Town Meeting" are available from Audio Archives & Duplicators Inc., 100 West Beaver Creek, Unit 18, Richmond Hill, Ontario L4B 1H4 (905) 889-6555, Fax: (905) 889-6566, e-mail: Ask for tape 980225-165/166 "Town Meeting on Fair Use of Digital Images: Parts I & II. ($20US/$29CDN) Refer to vendor for ordering information.