Fair Use after CONFU

About four years ago, the issue of fair use of copyrighted materials in digital form generated a great deal of attention when the Conference on Fair Use (CONFU) was established. Hundreds of meetings later, the CONFU process is at an impasse. For librarians in academic and research librar ies, the need for an informed approach to the application of fair use of digital works becomes increasingly critical as use of such works increases. The term fair use refers to a very sig nificant limitation on the exclusive rights of the copyright holder, set forth in Sec tion 107 of the Copyright Act of 1976,1 which permits legal use of copyrighted materials without permission for certain purposes, including teaching. Four fac tors—purpose of use, nature of material, amount of use, and effect on the market— are to be considered in determining whether a use is fair. Because the statute goes no further in defining fair use, we are left to make that determination on our own, taking case law into account. In 1993, President Clinton established the Information Infrastructure Task Force to plan and implement a National Infor mation Infrastructure (NII). In turn, the task force formed the Working Group on Intellectual Property Rights to examine the implications of the NII on intellectual property law. The preliminary draft of the working group’s report (the Green Paper) provoked national controversy. Many li brarians feared that access to copyrighted digital materials would be severely re stricted by the proposed expansion of the exclusive rights of copyright owners, whereas representatives of the commer cial publishing world, fearing loss of po tential revenue, pressed for greater con trol as articulated in the legislative rec ommendations of the Green Paper. The report also sug gested convening a conference of representatives of the vari ous stakeholders to try to develop guide lines for digital materials. CONFU began meeting in 1994.2 By spring 1997, work ing groups focusing on six specific topics had been struggling for two and a half years to develop guidelines, and nearly one hundred organizations were partici pating in the CONFU process.