Matt Landrus
Wolfson College, University of Oxford

Constructing a Reference to Appropriations of Leonardo da Vinci: Virtual Museums and Visual Archives; Digital Imagery and the Law

Keywords: Leonardo da Vinci's collectibles, online archive, fair use legislation

My interest in building a small Leonardo collectibles website in July 1999 was to record and study such collectibles as they surfaced on the web for sale or display. Since then, I have developed an image collection at http://leonardo-da-vinci.org ranging from advertisements to rubber stamps. These images were found unidentified at various sites; some were donated; others were purchased and scanned. Many of the contemporary perceptions of Leonardo become apparent as the web collection grows. The study is anthropological, sociological, art historical, psychological, and phenomenological in scope. What follows is a discussion of three concerns addressed at leonardo-da-vinci.org: the significance of a virtual museum for Leonardo collectibles; the legal rationale for such an exhibition; and a listing of international principles of fair use as of September 2000.

I

What reminds you of Leonardo da Vinci? According to the study at leonardo-da-vinci.org, four of the most popular memories seem to be: Leonardo as 'genius', as painter of the Mona Lisa, as painter of the Last Supper, and as the inventor of manned flight. The Leonardo site is about differing interpretations of the original intentions of most Leonardo-related objects, not about the intentions for the objects after production. The site is not meant to refer to the different appropriations of the Mona Lisa, for example, as to moments when the Marcel Duchamp goatee and mustache, Miss Piggy, Mr. Bean, and Monica Lewinsky were considered suitable for a depiction as the Mona Lisa. These moments present phenomenological exchanges between the signifiers of the work or legend of Leonardo and the signifiers of recent appropriations. The 8th February 1999 New Yorker cover with Monica Lewinsky as Mona Lisa was obviously meant to invoke the various comparisons between popular perceptions about both representations of the individuals.

Most references to Leonardo and his work may be seen as links between present and past signifiers. Interpretations of those signifiers differ considerably, normally with the expectation that the meanings of such signs can be appropriately identified. But images at leonardo-da-vinci.org may not mean anything in particular. The site endeavors to show, with examples of appropriations such as those for the Mona Lisa, that most of these images were not intended to specifically appreciate the painted subject, nor the painter, nor the Renaissance, nor hardly anything of the painting's original intent, but instead to trigger popular opinion with the help of a popular image. Most images at the site subvert the traditional approach in such a way as to deconstruct those images' identifiers into bits of associations. Bringing these images together is an attempt to form an eidetic interpretation of the group from their associate fragments. By themselves, the images may generally be associated with numerous ideas about surface aspects, their 'essences' or other possible meanings. But when grouped together, one can view the relationships between the images and their possible original intentions.

A common phenomenological approach to the image has been to determine the condition of its transition from that of a thing to the position of its existence as a sign. Analysis of an image normally concerns its role as signifier, how the 'thing' became a 'representation'. Leonardo-da-vinci.org tries to show an opposite point of view: the transition from 'representation' to 'thing'. In this case, the various signifiers or representations by which we know Leonardo and his artwork have somehow inspired the objects of this site's images. This approach avoids discussion, as much as possible, of the meaning or value of the objects. Rather than attempt a textual extrapolation of possible meanings from the objects, making visible their existence is meant to offer a visualisation of twentieth century interpretations of Leonardo. This particular phenomenology of Leonardo memorabilia examines the point where Leonardo-as-signifier starts to become Leonardo-as-object. The signifier-to-object trajectory does not simply reverse or subtend the traditional dialectic from object-to-signifier. This change in direction creates an analytic loop on which to mediate a communication paradox: the more one has to communicate the meaning of something, the weaker its meaning. A typical cycle begins with signs as interpretations of Leonardo, which inspire the creation of objects, which themselves behave as signs, completing the cycle. The present study rejects this last step of signification. By avoiding some of an object's signifiers, like its text or symbols, basic components of its origin become more apparent. These components associate rather than determine the object. Leonardo-da-vinci.org refers to the objects' associations with interpretations of Leonardo, not to supposed meanings of the objects. Obvious identifiers of on object attract attention toward its categorisation and away from its associations. So the site's minimal identifiers encourage more of a visual reading of the objects' associations. The fact that they exist – not the fact that they re-present – provides information about the possible origins of signifiers giving rise to the objects' productions.

As a visual study, leonardo-da-vinci.org tries to expose, without verbal explanation, the factors revealing intentions for the creation of its Leonardo appropriations. The less self-evident an object's origins, the more removed it would be from a particular cultural perspective. In this case, the 'evidence' of an object may encourage one to identify that object as a signifier. But this evidence may be seen in terms of its connotation rather than what it denotes of the object's meaning. Such objective evidence consists of a link to, or association with Leonardo, regardless of what it may mean or signal by itself. That evidence expresses a number of popular interpretations of history. One may respond to this collection of images as an overstatement of generally popular misinterpretations of Leonardo and his work. More important, however, is the degree or extent to which these misinterpretations signify shifts in public opinion. Those shifts take the form of cultural, social, political, psychological, and other trends associated with the objects. Leonardo-da-vinci.org, by virtue of its visual commentary, leaves open to interpretations of its visitors the questions and possible suggestions therein.

II

As written in the "terms of use" section of leonardo-da-vinci.org, the site "is the author's interpretation. It is only for private study, scholarship or research." The site is a visual commentary on aspects of visual culture: popular, commercial and industrial uses for Leonardo's name, its associations, and the various appropriations of his artwork.

Images have been donated to the site on four conditions: the images once existed on the web, the image copyrights revert back to the original owners, exhibiting such images agrees with UK fair dealing and UK fair use guidelines, and the provenance of each donation remains anonymous. All materials at the site have been provided as-is, with no attempt to change the size or quality. The images offer a visual critique, independent of text as much as possible. The purpose of viewing them in this way is twofold. First, textual explanation can detract from visual interpretations of an image. Second, donors to this site intentionally or unintentionally help address the problem of increasingly restrictive copyright laws. These laws are becoming so restrictive as to seriously compromise image integrity, proliferation, and availability. Such restrictions help establish the control of those who seek to gain financially from a conversion of public domain material into commercial ownership. This conversion increasingly prohibits public access to aspects of visual culture. The purpose of leonardo-da-vinci.org, therefore, has been to offer a free account of material culture before such materials disappear from free public view (or before this site disappears due to increasing copyright restrictions).

Since leonardo-da-vinci.org serves only the educational, non-commercial purpose of critical commentary, it has not been necessary, even if it were possible, to fully identify copyright of its materials. Individuals who have donated the site's images and information have given them on the condition that contributors remain anonymous. Thus, the author cannot formally obtain, nor formally offer to another person, permission for the reproduction of the information at this site. It belongs to everyone who helped develop it.

The site's "terms of use" section notes:

"Because leonardo-da-vinci.org is a provider of news and commentary, it does not have to show with its images, graphics, or texts any expressed permissions from individuals, subjects, groups, or entities. Also, clearance does not have to be obtained from the owners of copyrighted items or trademarks whose items or marks appear in the site's news and commentary. Leonardo-da-vinci.org and its creators are not responsible for any inaccuracies, errors or omissions in any of its material."

The site is online commentary. Anyone using the site is expected to agree with the terms, notices and conditions in its "terms of use". Visitors are asked not to use the site if they do not agree to its terms of use. Part of these terms may be changed, modified, added or deleted at any time according to the rights and plans of the author and donors. Conditions of the "terms of use" page imply the expectation that visitors must agree with the most current version of that statement. Anyone's continued use of the site indicates her/his agreement with the latest modifications posted therein.

As stated in the site's "terms of use" section:

"Everything at leonardo-da-vinci.org is the property of its developer and donors. The site's layout, design, graphics, images and text are protected by international copyright and trademark laws. No one may be permitted to publish, display, reproduce, distribute, transfer, change, modify, sell, or create derivatives of anything located at the site. Anyone is welcome to create a link on her/his own site to leonardo-da-vinci.org, but one must not create a mirror to this site or any of its contents. No one can use anything at the site for any purpose not expressly permitted in the site's terms of use."

III

Terms of use for leonardo-da-vinci.org cannot fully acknowledge the extent of flexuous international copyright laws. Fair use information about the site, as noted below, has been compiled with respect to the right to teach aspects of visual culture with visual media free of copyright infringement. As fair use regulatory discussion and legislation expands internationally, I hope this site continues to follow the appropriate guidelines of that legislation. If the site's author missed an important point among these notes, please feel free to offer advice or comments to him at mlandrus@mac.com.

As a fair use site, leonardo-da-vinci.org endeavors to promote free access to the history of visual culture through immediate access to visual media. Interpretations of the US Copyright Act form the basis of this fair use philosophy. To quote Virginia M.G. Hall's reference to Marybeth Peters' General Guide to the Copyright Act of 1976, "any discussion of fair use should note that '…the primary purpose of copyright legislation is to foster the creation and dissemination of intellectual works for the public welfare …".¹ Maryly Snow refers to this issue when discussing fair use web sites:

In 1994, Justice Sandra Day O'Connor, writing for the Supreme Court in Feist v. Rural Telephone, reaffirmed the Constitutional basis for the 1976 Copyright Law: "The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art...[Copyright law] ultimately serves the purpose of enriching the general public through access to creative works."²

Thus fair use principles foster education and economic development, even though such principles remain a threat to certain commercial interest groups. Speaking on behalf of the Visual Resources Association, Virginia M.G. Hall states:

"While the representatives of commercial interests would do away with fair use and the traditional distance education exemptions in favor of pay per view licensing schemes, it is clear in our use and experience that these will not provide for our needs. Materials which we use in our professions on a regular basis include esoteric and little known images which typically have inconsequential commercial value and even less general market interest and are therefore unlikely to be targeted for licensed distribution. Further, we feel that the existence of licensed materials should not preclude a fair use of materials. Nor should fair use be restricted in any way for digital media. We feel that guidelines which attempt to use enumeration methods for determining fair use (such as the CCUMC [Consortium of College and University Media Centers] Multimedia Guidelines) in fact serve only to limit our rights under the law."³

Leonardo-da-vinci.org contains public domain materials and materials protected by copyright. The site's presentation is courtesy of the following acts, conventions and councils: the fair dealing guidelines of the UK Copyright, Designs and Patents Act 1988; the fair use provision of the US Copyright Act of 1976; the US Digital Millennium Copyright Act of 1998, the Universal Copyright Conventions of 1952 and 1971; the Berne Convention of 1989; and the Australian Copyright Council (ACC). The site also conforms to fair use guidelines set by the following US organizations: the Visual Resources Association Committee on Intellectual Property Rights (VRA), American Libraries Association (ARA), National Commission on New Technological Uses of Copyrighted Works (CONTU), Interactive Multimedia Association (IMA), and the Association of College and Research Libraries (ACRL). A list of acts, guidelines, position statements, and reports referring to specific fair use principles from http://www.vraweb.org upon which leonardo-da-vinci.org was founded, can be found in Appendix I.

All creative work is automatically protected by a combination of the Bern Convention treaty (signed by 96 countries), and the specific copyright laws for a given country. As of September 2000, the site has existed on servers in the United Kingdom and United States. These common law countries share similar copyright legislation, comparable to that in the Berne Convention. Though leonardo-da-vinci.org was created with respect to this legislation, the author is not a lawyer and therefore offers the site's "terms of use" disclaimer mainly as a courtesy. Appendix II contains a selection of sites which include fair use material, while Appendix III offers quotations from legal documents on the fair dealing and fair use information.

The concluding argument in this paper on Leonardo collectibles is the first authority consulted for the purpose of developing leonardo-da-vinci.org in July 1999: The US Copyright Act. With respect to that act, this study of collectibles has become more of a study of the access to visual, historical and copyrighted material culture. According to the US Copyright Act, section 107: Limitations on exclusive rights: Fair Use,

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phono-records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include - 1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Leonardo-da-vinci.org conforms to these principles of the US Copyright Act in the following ways: First, all items at the site are provided strictly for the purpose of research, scholarship, teaching, and other educational purposes. Owners of any possibly copyrighted material therein are encouraged to inform the author at mlandrus@mac.com of their detailed proof of ownership and request for the proper credit line in the site's "terms of use" section or for removal of their image from the site. Also, anyone is welcome to send to the above email address a 72 dpi image which they feel would belong at the site. Owners of any copyrighted items automatically remain the sole beneficiaries of any opportunities for commercial gain, should such an opportunity arise directly or indirectly from the inclusion of their images in this site. Regarding the third factor, only a minute portion of a person's entire body of work may be found at this site. The low 72 dpi resolution of each image at the site provides only a few pixels of the original work. As for the fourth factor, the site's JPG files cannot compete with any part of the market share of images which are printed (130 dpi or better), licensed, and/or sold. Such low-resolution images may encourage browsers to look for the originals, but the images themselves have absolutely no value, nor do they promote the greater value of the original.

It should be noted here that, as for works in the public domain, there is international agreement that an artist must have been dead for more than fifty years (more than seventy years in the UK) in order for her/his work to be in the public domain. Reproduction rights in that case revert to the owner's photographs of the public domain works. For example, since museums most often commission photographs of their works, they own rights to the reproduction of those photographs. Though Leonardo-da-vinci.org tries to exclude these and other specifically copyrighted works, the purpose of the site has been to include every visual portion of material culture associated with Leonardo collectibles.

Appendix I

The following acts, guidelines, position statements, and reports from http://www.vraweb.org include specific fair use principles upon which leonardo-da-vinci.org was founded:

National Humanities Alliance's Basic Principles for Managing Intellectual Property in the Digital Environment; Digital Copyright Clarification and Technology Act of 1997; Agreement on Guidelines for Classroom Copying and Not-for-Profit Educational Institutions by the Ad Hoc Committee on Copyright Law Revision; VRA Image Collection Guidelines; CCUMC Fair Use Guidelines for Educational Multimedia Draft; VRA Oral Testimony to Library of Congress Regarding Distance Learning, by Macie Hall, 26 Jan 1999; ALA Position Statement 4 Jan 1997 - Fair Use Guidelines in a Digital Information Environment; ALA Public Hearings Statement, by Carol C. Henderson, Exec; Director, ALA, 4 Nov 1994; ARL Statement Educational Fair Use Guidelines for Digital Images; CAA Statement (CONFU Guidelines for Image Archives); VRA Endorses NHA Principles; VRA IPR Committee Recommendation Letter; VRA Open Letter to Peter Fowler; VRA Press Release (CONFU Guidelines for Image Archives); VRA Position Statement on CONFU, Guidelines for Digital Images; VRA Public Hearings Statement, by Sandra C. Walker, VRA President, 22 Sep 1994; VRA Open Letter to USPTO Regarding WIPO Treaties; VRA Letter to Senator Ashcroft In regard to the Digital Copyright Clarification and Technology Act of 1997 (S 1146); VRA Letter Endorsing Boucher/Campbell Bill (H.R. 3048, the "Digital Era Copyright Enhancement Act"); VRA Expressed Non-Endorsement of WIPO Implementation Act; VRA Reaffirms Non-Endorsement of WIPO Implementation Act, 27 Sep 1997; Final VRA Comments Regarding Proposed CONFU Guidelines; Fair Use or Foul Play? The Digital Debate for Visual Resources Collections, by Macie Hall; Digital Images and Fair Use Web Sites, by Maryly Snow; Portland Town Meeting, 27 Sep 1997, by Barbara Anderson, Portland Art Museum; License to Kill? Copyright Ownership and Fair Use in an Age of Licensing, by Maryly Snow; Image Archives & Fair Use Virginia, by M.G. Hall, Christine Steiner, and Christine Sundt; Intellectual Property Rights in the Digital Age: An Overview, by Macie Hall; Review of VRA IPR CONFU Recommendation, by Kathe Albrecht and Macie Hall; VRA Ad Hoc Committee: IPR Reports, 21 Oct 1994, through 5 Apr 1995, by Macie Hall, Chair; Database Legislation Web site Constructed by the Digital Future Coalition; Art, Copyright, and the Web Bibliography Compiled by Jeanette Mills and Cynthia Caci; Copyright Act of 1976, As Amended in 1994; Copyright & Arts Issues, Compiled by Christine Sundt; Copyright, Fair Use, and Image Archives & Collections Christine Steiner and Carol Handler Copyright & Fair Use: The Great Image Debate Visual Resources, by Robert Baron, Guest Editor; Copyright Implementation Manual Media Technology Services, Groton Public Schools, Mystic, CT; IFLA Copyright & Intellectual Property Rights Documents; Indiana University Online Copyright Tutorial; IITF White Paper, 5 Sep 1995; NINCH Fair Use Education Site; Stanford University Library: Fair Use Site.

Appendix II

The following sites include fair use material:

Art Resource, http://www.artres.com/
The Artchive, http://www.artchive.com/ftp_site.htm
The Artcyclopedia, http://www.artcyclopedia.com
Project Gutenberg, http://promo.net/pg
Web Gallery of Art, http://gallery.euroweb.hu/
Biblioteca Ambrosiana, http://www.nd.edu/~italnet/AMBROS/
ArtServe of the Australian National University, http://rubens.anu.edu.au/index.html
Imagebase of the Fine Arts Museums of San Francisco, http://www.thinker.org/index.html
SPIRO, The Architecture Slide Library of UC Berkeley, http://www.mip.berkeley.edu/query_forms/browse_spiro_form.html

Appendix III

Statements that follow offer some of the fair dealing and fair use information which can be found on the web.

UK Copyright, Designs and Patents Act 1988

The UK Copyright, Designs and Patents Act 1988 lists issues of fair dealing in parts 29 and 30 (chapter III), "Acts Permitted in relation to Copyright Works," as follows:

"29 Research and private study:
(1) Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research or private study does not infringe any copyright in the work or, in the case of a published edition, in the typographical arrangement.
(2) Fair dealing with the typographical arrangement of a published edition for the purposes mentioned in subsection (1) does not infringe any copyright in the arrangement.
(3) Copying by a person other than the researcher or student himself is not fair dealing if – (a) in the case of a librarian, or a person acting on behalf of a librarian, he does anything which regulations under section 40 would not permit to be done under section 38 or 39 (articles or parts of published works: restriction on multiple copies of same material), or (b) in any other case, the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose.
[(4) It is not fair dealing – (a) to convert a computer program expressed in a low level language into a version expressed in a higher level language, or (b) incidentally in the course of so converting the program, to copy it, (these acts being permitted if done in accordance with section 50B (decompilation)).]

30 Criticism, review and news reporting:
(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.
(2) Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement.
(3) No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film, broadcast or cable programme."

The European Council of Information Associations' Ethical Principles for Information and Documentation Professionals [1998]

"1. All information and documentation professionals should: in all professional, commercial, managerial or educational dealings behave honestly, honourably and in a manner which brings credit on the Information and Documentation (I&D) profession; this includes honouring any commitment freely entered into: take every reasonable precaution to avoid conflicts of interest; disclose any that are unavoidable even if they are likely to be uncontentious; not misrepresent their abilities nor undertake any task which is beyond their professional competence (though they may belong to a team which as a whole is able to provide a service they could not personally manage); not denigrate other professionals (though, of course, in professional circles they may criticise the theories and views of others); ensure their professional knowledge and skills are kept up-to-date. …
3. In dealings with the client a professional service organisation or a freelance professional should: treat all dealings with the client in complete confidence, unless the law requires disclosure; provide the highest quality service possible within the terms of the contract; avoid bias or censorship as a result of personal, religious, political or other beliefs and ensure, where appropriate, that all legitimate points of view and valid evidence are taken into account; draw on all relevant sources of published information; indicate to the client, in so far as is possible, the degree of reliability of each source including whether any data used will change with time; admit and correct any accidental errors; cite the sources, unless properly using unpublished information the source of which does not wish to be revealed; not use unpublished sources except with the permission of their owner(s); not re-use a report on a project for a second client unless the first has agreed such may be done or copyright has been retained by the I&D professional or his employer; observe the laws of whatever country he/she is working in, especially those concerned with copyright, data protection, confidentiality and freedom of information. … It is emphasised that these are guiding principles only to be observed in a manner appropriate to the working environment of each professional. No rules are absolute and there will be times or circumstances when even sound ethical principles conflict. However, the above set should provide an adequate basis for users of I&D services to have confidence in the professional(s) involved." (http://www.aslib.co.uk/ecia/principles.html)

US Digital Millennium Copyright Act of 1998

105th US Congress, Report of the House of Representatives, 2nd Session, October 8, 1998, Mr. Coble, from the committee of conference, submitted the following conference report, to accompany H.R. 2281:

"The committee of conference on the disagreeing votes of the two Houses on the amendment of the Senate to the bill (H.R. 2281), to amend 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and PhonogramsTreaty, and for other purposes, having met, after full and free conference, have agreed to recommend and do recommend to their respective Houses as follows: …
Section 1201. Circumvention of copyright protection systems
(a) Violations Regarding Circumvention of Technological Measures. – (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter. …
(d) Exemption for Nonprofit Libraries, Archives, and Educational Institutions.–
(1) A nonprofit library, archives, or educational institution which gains access to a commercially exploited copyrighted work solely in order to make a good faith determination of whether to acquire a copy of that work for the sole purpose of engaging in conduct permitted under this title shall not be in violation of subsection (a)(1)(A). A copy of a work to which access has been gained under this paragraph-- (A) may not be retained longer than necessary to make such good faith determination; and (B) may not be used for any other purpose.
(2) The exemption made available under paragraph (1) shall only apply with respect to a work when an identical copy of that work is not reasonably available in another form. …
(5) In order for a library or archives to qualify for the exemption under this subsection, the collections of that library or archives shall be – (A) open to the public; or (B) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialised field."

The [US] Association of Research Libraries (ARL) response to the Conference on Fair Use (CONFU)

Prepared for ARL by Mary E. Jackson, ARL Access & Delivery Services Consultant, on April 30, 1997, at (http://www.arl.org/info/frn/copy/image.html):

"This fact sheet summarizes the concerns of ARL that resulted in a decision not to endorse the digital images fair use guidelines.
Following the process used for other CONFU draft documents, ARL distributed copies of various drafts of the digital images guidelines to review and secure member comment. At the request of the Digital Images Working Group in August 1996, ARL distributed copies of the August 15, 1996, draft to the membership and received a series of critical responses. ARL responded to the Working Group by submitting a one-page summary of the comments and concerns. That review first identified the following key concerns:

• lack of balance between the rights of copyright owners and those of users of copyrighted digital images (e.g., the draft appears to go to great lengths to secure the rights of owners with no corresponding assertions about the rights and needs of users, creators, or archiving agencies as they serve society.)
• new requirements for educational institutions to comply (e.g., the draft introduces new responsibilities on the educational institution to research copyright status, apply for permissions, and maintain records.)
• new restrictions on fair use (e.g., the draft ceded rights that might apply under fair use and suggests that the determination of fair use is limited by a finite period.)
• technical and process concerns (e.g., the draft's specificity about network control, coupled with the process of finding the rightsholder, are overly restrictive.) Upon release of the CONFU Interim Report in December 1996, ARL distributed copies of the final "Proposal for Educational Fair Use Guidelines for Digital Images" and sought recommendation on possible endorsement. Based on the comments received, ARL voted not to endorse the digital images fair use guidelines."

[CONFU's fair use guidelines, as of 1998, have not been formally accepted by the US Congress.]

Berne Convention for the Protection of Literary and Artistic Works

According to the Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971), article 2, section 1, an artistic work would be among the following:

"The expression 'literary and artistic works' shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science."

As for one's fair use of that work, article 10, section 2 states:

"It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice."

Per article 9, section 2:

"It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."

Concerning the duration of copyright, article 7, sections 1-8 state:

"(1) The term of protection granted by this Convention shall be the life of the author and fifty years after his death.
(2) However, in the case of cinematographic works, the countries of the Union may provide that the term of protection shall expire fifty years after the work has been made available to the public with the consent of the author, or, failing such an event within fifty years from the making of such a work, fifty years after the making.
(3) In the case of anonymous or pseudonymous works, the term of protection granted by this Convention shall expire fifty years after the work has been lawfully made available to the public. However, when the pseudonym adopted by the author leaves no doubt as to his identity, the term of protection shall be that provided in paragraph (1). If the author of an anonymous or pseudonymous work discloses his identity during the above-mentioned period, the term of protection applicable shall be that provided in paragraph (1). The countries of the Union shall not be required to protect anonymous or pseudonymous works in respect of which it is reasonable to presume that their author has been dead for fifty years.
(4) It shall be a matter for legislation in the countries of the Union to determine the term of protection of photographic works and that of works of applied art in so far as they are protected as artistic works; however, this term shall last at least until the end of a period of twenty-five years from the making of such a work.
(5) The term of protection subsequent to the death of the author and the terms provided by paragraphs (2), (3) and (4), shall run from the date of death or of the event referred to in those paragraphs, but such terms shall always be deemed to begin on the 1 st of January of the year following the death or such event.
(6) The countries of the Union may grant a term of protection in excess of those provided by the preceding paragraphs.
(7) Those countries of the Union bound by the Rome Act of this Convention, which grant, in their national legislation in force at the time of signature of the present Act, shorter terms of protection than those provided for in the preceding paragraphs, shall have the right to maintain such terms when ratifying or acceding to the present Act.
(8) In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work."

Universal Copyright Convention

As Revised at Paris on 24 July 1971, the text of the Universal Copyright Convention is published in U.N.T.S. No. 13444, vol. 943, pp. 178-325 (http://www.tufts.edu/departments/fletcher/multi/texts/UNTS13444.txt):

"The Contracting States, moved by the desire to ensure in all countries copyright protection of literary, scientific and artistic works, convinced that a system of copyright protection appropriate to all nations of the world and expressed in a universal convention, additional to, and without impairing international systems already in force, will ensure respect for the rights of the individual and encourage the development of literature, the sciences and the arts, persuaded that such a universal copyright system will facilitate a wider dissemination of works of the human mind and increase international understanding, have resolved to revise the Universal Copyright Convention as signed at Geneva on 6 September 1952 (hereinafter called 'the 1952 Convention'), and consequently, have agreed as follows: …
Article V. 1. The rights referred to in article I shall include the exclusive right of the author to make, publish and authorize the making and publication of translations of works protected under this Convention. …
Article V ter. 3. Any license under this article shall be granted only for the purpose of teaching, scholarship or research."

September 2000

Notes

1. "Visual Resources Association's Oral Testimony Regarding Distance Learning" by V.M.G. Hall to the Library of Congress Public Hearing in Washington D.C. on 26 January 1999: http://www.vraweb.org.

2. Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340,349 [1991], http://www.utsystem.edu/ogc/intellectualproperty/portland.htm.

3. "Visual Resources Association's Oral Testimony Regarding Distance Learning" by V.M.G. Hall to the Library of Congress Public Hearing in Washington D.C. on 26 January 1999: http://www.vraweb.org.