How will historians communicate the new knowledge they create? How will the primary source materials to which they seek access (visual, textual, statistical) be presented and controlled? How will students learn what historians do, and the conclusions they reach? The circumstances affecting all of these questions are currently in flux, and the answers that emerge over the next two or three years will shape a lifetime of scholarship thereafter. Last month's column surveyed a range of legislative issues that affect the ability of scholars to participate in civic life. This month we look at one of these issues, one that will fundamentally shape how scholars communicate with each other and how new knowledge is distributed and used by the larger community.

For more than two years, stakeholders in me changing environment of copyright law have been meeting as the informally constituted Conference on Fair Use (CONFU) under the aegis of the Department of Commerce. CONFU participants have been seeking consensus on the relationship of fair use protections to draft legislation protecting intellectual property in an electronic age. In addition to their efforts to come to general conclusions, five working groups were organized to draft guidelines in areas recognized as problematic-interlibrary loans, electronic reserves, digital images, distance learning, and multimedia. 1 From the perspective of the educational community which has been most concerned with balancing fair use and intellectual property protections, these efforts collapsed of their own weight by the end of 1996.

The administration used the convening of CONFU to justify draft legislation that ignored fair use. It was argued that the CONFU guidelines would become the new conventions observed by commercial copyright holders and educators alike, replacing e consensus around fair use for print publications. However, the vast majority of participants in CONFU represented commercial interests, and they soon figured out that their concerns would be better addressed through the legislative process than in any true compromise created for guidelines. Consequently, they stonewalled most of the essential needs articulated by those concerned with fair use. As a result, two topics—interlibrary loans and electronic reserves—were scuttled and the remaining draft guidelines became unacceptably tilted. However, to prevent alternatives to the CONFU process emerging out of the resulting vacuum, the conveners have kept CONFU alive, at least in appearance. It last met in May 1997, and is scheduled to meet again in May 1998, though there is continuing debate among those present about what is supposed to happen. This would be a sad tale indeed, were it not for subsequent developments in the international arena and among educational organizations themselves.

International Developments

During a December 1996 meeting in Geneva, two updated treaties concerning intellectual property rights were adopted by the World Intellectual Property Organization (WIPO). Representatives of educational and library associations found good allies among the international participants, many of whom pursued protections for fair use. The resulting treaties achieved a good balance between the protection of intellectual property rights and fair use; since these treaties must be approved by the Congress, and must also be incorporate in any new copyright legislation, the gains made in Geneva have altered the prospects here at home as well.

Domestic Developments

Domestically, given the dead end reached by CONFU, the National Humanities Alliance (NHA)—a consortium on whose board the AHA serves—convened a subcommittee of its member organizations to discuss new alternatives. Other members of the broader educational community, including museum and library organizations and the university press association, as well as the Association of American Universities and the National Association of State Universities and Land Grant Colleges, were also invited to join this group.

The group agreed at the outset on five assumptions to guide their work. First, that the attempt to create guidelines had been premature, given the rapid pace of technological change and the uncertain legislative environment. A necessary precondition to guidelines was a statement of shared principles, and a gathering of information on lessons learned from best practices. Second, the technological capacities introduced by electronic dissemination carry within them a new capacity, both to violate the rights of copyright holders, and to prevent works from being used in ways contemplated in existing law for print. New legislation is needed, but it must protect a balance between these capacities, preserving both core educational functions and the information marketplace. Third, working from existing legal provisions to create new legislation (as the administration had attempted to do) places radical limits on the ability to deal with new challenges and opportunities. It would be more productive to identify the particular needs and desires of the various users, creators, and disseminators. Fourth, although the various participants in the discussions had interests that differed significantly (with some combining the roles of users, creators, and distributors within one organization!), they recognized that "we are all in this together." That is, the underlying glue that bound them together was their shared commitment to protecting and disseminating scholarship for teaching and research purposes. Finally, given the economic environment in which American education functions, and the concomitant need for the distributors of scholarship to be able to cover their costs and remain financially viable, "money would change hands." The group supported, then, not a blanket assertion of the applicability of fair use, but a judicious delineation of circumstances where the rights of intellectual property creators had to be balanced against society's need for access and circulation of information.

Toward a New Consensus

As a first step in replacing the CONFU deliberations with a broad consensus that serves the needs of the educational community, this NHA-convened group has produced a foundational document, "Basic Principles for Managing Intellectual Property in the Digital Environment.'" The document has been endorsed by a growing list of scholarly and educational organizations. (In June 1997, the AHA Council both endorsed it and adopted it as a policy framework for future advocacy activities in this arena.) The document includes 10 principles, from which we all will work to ensure that legislation and practices protect the "rich and timely" circulation of information. (For complete information on the "Basic Principles" and other documents referred to here, including the guidelines considered by CONFU, consult the web site of the National Initiative for a Networked Cultural Heritage [NINCH], which is becoming the information center on the web for intellectual property issues, at http://www.ninch.cni.org.)

The 10 principles are listed below. They are discussed in a nuanced context in the NHA document, and I urge readers to consult the full text.

1. Copyright provisions for digital works should maintain a balance between the interests of creators and copyright owners and the public that is equivalent to that embodied in current statute. The existing legal balance is consonant with the educational ethic of responsible use of intellectual properties, promotes the free exchange of ideas, and protects the economic interests of copyright holders.
2. Copyright law should foster the maintenance of a viable economic framework of relations between owners and users of copyrighted works.
3. Copyright laws should encourage enhanced ease of compliance rather than increasingly punitive enforcement measures.
4. Copyright law should promote the maintenance of a robust public domain for intellectual properties as a necessary condition for maintaining our intellectual and cultural heritage.
5. Facts should be treated as belonging to the public domain as they are under current law.
6. Copyright law should assure that respect for personal privacy is incorporated into access and rights management systems.
7. Copyright law should uphold the principle that liability for infringing activity rests with the infringing party rather than third parties. Institutions should accept responsibility for acts undertaken at their behest by individuals but should not be held liable for the acts of individuals—whether or not associated with the institution—acting independently. This principle is an essential underpinning for academic freedom.
8. Educational institutions should foster a climate of institutional respect for intellectual property rights by providing appropriate information to all members of the, community and assuring that appropriate resources are available for clearing rights attached to materials to be used by the institution, e.g., in support of distance learning.
9. New rights and protections should be created cautiously and only so far as experience proves necessary to meet the constitutional provision for a limited monopoly to promote the "Progress of Science and Useful Arts" [as current copyright law puts it].
10. Copyright enforcement provisions should not hinder research simply because the products of a line of inquiry might be used in. support of infringing activity.

Next Steps

We hope many steps will follow from these 10 shared principles. The first must be close scrutiny and monitoring of legislative action. (Most of the monitoring and legislative input will be accomplished through the Digital Futures Coalition; to follow the alerts produced by this group, consult www.dfc.org.1 It is anticipated that two separate developments are likely to converge, and that their convergence will offer the only opportunity for the educational community to influence future copyright law. The first development is the reintroduction of the copyright legislation drafted last year (which died during the legislative session). The second development is the new legislation introduced to implement the WIPO treaties in U.S. law. Contradictions have already emerged in the directions suggested by these pieces of legislation. Perhaps these contradictions are nowhere more revealing than in the legislative language designed to prevent piracy. The WIPO treaties specify that anti-piracy action should be directed at behavior, not at technology. This position is supported by the NHA principles, because it is otherwise impossible to make room in the technological environment for fair use. In contrast, the administration's legislative language seeks to prevent piracy by outlawing certain kinds of technology (such as "black box" equipment that would permit downloading and printing or other ways of saving materials), Because it is impossible to know what productive and legal uses might emerge from new technology (and because existing technology, including the function of ordinary PCs, could be banned by this legislative language), the educational community opposes the administration's approach to this issue. Fortunately, the WIPO stance on the matter, and the stakes held by the software industry, make it possible to win this uphill battle.

In addition to close monitoring of legislative developments, the participants in the NHA deliberations will collect and share experiences in the application of new technology (for example, in libraries and educational environments or in, the fair use and collection of royalties). Further work will also be devoted to development of "User Community Principles" and educator- and librarian-generated "Best Practices" concerning fair use, distance learning, and related activities. To coalesce and move beyond this first promising consensus represented by the NHA principles, NINCH will convene future meetings focused on our next steps. In this context, we encourage AHA members (and especially department chairs and others in positions to influence campus policies and practices) to share information with us, and to beware licensing agreement clauses that implicitly I explicitly limit or abrogate fair use.

Note

1. The multimedia guidelines were actually prepared independently and then folded into the CONFU process. Their reception has been misrepresented by the organizers of that independent group and supported by commercial copyright holders, who have tried to circumvent educational organizations and campus structures by going directly to media centers to solicit support (without providing any context for the media center directors).