Welcome to another quarantine edition of copyright chat. Today. I want to talk about two important things that happened recently. There’s a third, but I haven’t had a chance to catch up on it just yet. So the first thing that I want to talk about today is the section 1201 exemption hearing that I took part in yesterday, April 6, 2021. I’ve never participated in the section 1201 hearing in the past because in the past you’d have to travel in order to participate. And I usually don’t have the funding to do so this year, due to the pandemic, they were held remotely through zoom and I was able to participate. The second thing I wanted to talk about was a case that came out of the second circuit recently about the Andy right Warhol paintings and Prince the singer. So first about the hearings, it was really interesting to be able to participate in the hearings.
Like I said, I’ve never been able to participate in the exemption hearings if you’re not familiar with the DMC exemptions. Let me explain a bit to you. So the DMCA, the digital millennium copyright act, it protects against circumventing technological locks on digital objects in order to obtain the copyright and materials such as DVDs for teaching purposes. So if one were to make a copy of a DVD in order to teach, one would have to violate potentially the reproduction rights and distribution rights and public performance rights of the copyright holder, but also one would be potentially violating the DMCA because in order to make that copy, you need to, uh, violate or rip the circumvention, go through the circumvention, anti circumvention methods, technological methods that are put in place by the copyright owner there. I don’t know personally how to rip through those technological measures, but I know folks do.
And that’s one of the things that the copyright act protects against not just making the copy, but, circumventing the technological locks. And so we all know that, of course, when we are teaching, we sometimes need to make those copies in order to play clips for our class, especially if we are teaching remotely as we have been doing lately, because in person, of course you could fast forward through the DVD. But that would also be burdensome. Back in the pre COVID days, you know, section one 10 of the copyright act in face-to-face teaching, you could play an entire DVD movie. So long as you obtained the DVD from a lawful source for your class in person, in the virtual environment, that’s a little bit harder and we often have to pay licensing for streaming. And so one of the arguments that we were making every three years, the copyright office has to engage in looking at the current exemptions and whether they should remain or should be expanded and myself and a few other colleagues, um, argued that the exemption for teaching should be expanded due to the pandemic in large part, right.
We had to shift rapidly from teaching in person to teaching online. And there’s no great, uh, remedy for that. Right. And at least at the university of Illinois, I know that some of the videos we want to show to our students are not available in a streaming format. In other words, there’s no market harm. Uh, there’s no market to be harmed when you’re showing an obscure film that no streaming service carries. And on top of that, I think that to point out and I made this point during the hearing that it’s actually quite expensive to make that copy because you also need to provide ADA compliance. So you need to have the closed captioning available for your students. So it’s not cheap to make that copy. And quite frankly, most libraries would probably rather pay the licensing fees to a vendor who makes it really easy to, you know, create short clips from the movie to show it to a larger audience.
Often they come with public performance rights also, um, all the other gadgets that they come with, right? So often we want to license those movies, but sometimes in the case of university of Illinois, um, last fall in spring 25% of our requests, we could not find in a streaming format. And so there is a gap in the market and in my opinion, it should be considered a fair use. And the copyright office should allow us to make that copy in that instance where we are not harming any market, there is no streaming market for that particular movie. And also this might strengthen the streaming market, right? Because if folks are worried that people are going to start being able to rip movies for educational purposes to stream the entire movie to an, an online class, maybe they would start providing streaming licenses for those movies.
There may be some obscure films that just never get put into that streaming format, but we still need to use them to teach. And the current exemption only allows us to use quote unquote, short portions. And so it’s a problem. It’s a problem for universities. It’s a problem that became very highlighted during the pandemic. And I’m hopeful that, um, our points were made to the copyright office and the others and engaged in the hearing yesterday that we really need a broader exemption for teaching purposes. So that was, that was an interesting experience. And I was really happy. I was able to participate on behalf of my library and I also wanted to address also another thing that recently happened that I, I’m not going to comment on right now is the Supreme court issued a case in Google V Oracle.
And of course held that the use of API by Google was a transformative fair use. And I need to read that opinion carefully and I’ll get back to you on that one. But the second circuit also recently, um, decided a case the Andy Warhol foundation for the visual arts versus Goldsmith and folks are kind of asking whether this is going to change the landscape of transformative fair use because the court seemed to step back previous opinions, um, from their older cases, apparently, right. And, and getting a little bit less excited about some of their previous decisions and Cariou in particular. And one of the things that was at issue here, if you’re not familiar with the case, it was about a photograph of the late great singer Prince that was licensed to a magazine and used by the Andy Warhol. And then he created a series of, of fine art based on that image.
So the issue was whether the creations of fine art were actually fair use or were, uh, derivative works that were violating the copyright of the photographer. And the court here found that they were actually violating the copyright as derivative works and made kind of a line in the sand between derivative works and, um, fair use. I find this interesting because generally speaking, when I teach copyright and fair use to my students and someone asks, raises their hand and says, what’s the difference between a derivative work and a transformative fair use and or where do we draw the line? And I always say, ding, ding, ding, that’s the million dollar question you win. Right? That’s what we struggle with, right? It’s always a question, whether it’s a derivative work that should be owned by the copyright owner, they should have been able to create that thing, or is it transformative enough where it shouldn’t be violating the copyright of the original owner?
And so I think here to, to my understanding, um, I’m not super worried about this case. And I’ll tell you why. I think that this case is a little bit limited to very specific instances where the purpose of the work was the same. So here, they said the purpose of the photograph was, you know, to create art and the purpose of the Andy Warhol, um, work was also fine art. And in that instance, there’s no real difference, right? We always look at something where you’ve created something with a new purpose, a new meaning or message. And that is the transformative ness that we’re looking for. And they did note that in Karoo, um, some of the works were, that was, uh, that was very similar case, right? Because you had, um, in Karoo, if you’re unfamiliar, we had a photographer who took photographs of individuals in Jamaica.
And then we had an artist who took the photographs and change them slightly, or largely, depending on your point of view and sold them as art. And so, very similar case. And they said, but you know, the court was struggling there too. And the question was, how much was, was it changed? And, here, I guess they said, not enough, right? It just, you can recognize the, the photograph, you see it and you say, Oh yeah, this came from this photograph of Prince. And so I think a lot of things that we’re doing with transformative fair use, at least in libraries, I’m speaking to my audience here. I don’t think this is going to impact us that much, because I think a lot of the things that we’re doing in libraries do serve different purposes that are very clear, right? So when we’re using works for a library guide to explain things, when we’re using works in an exhibit to tell what’s in the exhibit and we’re using works, um, we’re usually doing so for a very different purpose than the purpose for which the work was created.
Right. And therefore, I’m not that worried. I don’t love this case in terms of the way the court draws this line in the sand between derivative works and transformative works because of the fact that, like I said, that’s the hardest line to draw. So how, how are we getting there? But I do think that in library and libraries, we shouldn’t be as worried about the case, um, and how it quote unquote alters transformative fair use, not to mention the fact that the Supreme court case about transformative fair use came out right after it. So that’s going to be the next episode. I hope I’ve piqued your interest. I will spend some time kind of digesting that case, but this is my hot take on the Andy Warhol case that I’m not super happy about the way the court, you know, steps away from the Cariou case, because a lot of folks viewed that as like the high watermark of transformative fair use. On the other hand, I think it’s going to be relatively easy to distinguish this case from a lot of the things that we do in libraries and library publishing. So I’m not that worried about it negatively impacting our work as librarians and library publishers and things of that sort. So I thank you for listening. I welcome your comments. I hope that this shed some light for you. I’ll see you again soon. Stay safe.
Our Take on the Copyright Office Sovereign Immunity Roundtables
Douglas Shontz from the Office of General Counsel at the University of Illinois and I participated in the Copyright Office’s State Sovereign Immunity Study Roundtable Discussions. You can find the materials for the Discussions at the United States Copyright Office. We submitted a comment and a reply comment to the Study.
Sara Benson: Welcome to another episode of Copyright Chat. Today I’m joined by Douglas Shontz who’s from our University Counsel at the University of Illinois and we are going to talk about our recent experience with the U.S. Copyright Office Sovereign Immunity Roundtables. Welcome to the show, Douglas.
Douglas Shontz: Thanks for having me, Sara, pleasure to be here.
Sara: So, last Friday we participated in hearings with the Copyright Office. It was a very long day. I sat through all of the hearings. They started at 9 a.m. and went until about 5 p.m. and let’s give the listeners a little bit of background about what was going on there. Do you want to give some background Douglas?
Douglas: Sure, happy to. The precipitating event seems to really be the U.S. Supreme Court decision in Allen v. Cooper which was issued in March of this year and that decision found unconstitutional the federal law that had allowed private copyright holders to sue state governments for copyright infringement and it…resulting from that then two U.S. Senators sent a letter to the U.S. Copyright Office basically instructing them to study the extent of copyright infringement activity by state governments in the wake of the Supreme Court’s decision in Allen v. Cooper.
Sara: Right and from what I gathered from the decision the Supreme Court did not rule out the subject of getting rid of sovereign immunity for government actors but for copyright infringement in particular but said that the underlying evidence used to pass the law that was at issue in Allen v. Cooper was not strong enough to support getting rid of sovereign immunity. Is that is that your understanding too?
Douglas: That’s a good characterization. Yeah, the Supreme Court’s decision focused in on a test that was actually developed in another decision after this law was passed in 1990 and that decision refers to congruence and proportionality and what it’s basically saying is that if Congress is going to take the fairly extreme step of abrogating part state sovereign immunity under the 11th Amendment of the Constitution, that they need to justify it in some way. They need that the measures that Congress takes to abrogate the state’s sovereign immunity rights needs to be both congruent to the to the acts that are being performed and that the measures that Congress is taking are proportional to the acts that the state governments are taking that are appear to be wrong, unlawful or or somehow damaging. The interesting thing in this Allen v. Cooper case is they spend a lot of time talking about the proportionality component but didn’t spend a lot of time on the congruence component and it really is a two part test. So, it will be interesting to see as what is likely to be continued efforts in Congress to kind of revive some version of this law to to provide an avenue for private copyright holders to sue states if they remember that there’s two parts to this test. Obviously, the proportionality part is is really the more important one that you know you’re not providing this sweeping access to the courts, to the federal courts for private copyright holders to sue the states and that really seem to be the issue in the Allen v. Cooper case was that it is really open the door wide open for private copyright holders to sue state governments for infringement.
Sara: And I think the other thing that I took away from that line of cases was that in order to abrogate sovereign immunity the acts of infringement, the evidence that you need, I guess, needs to be shown to be intentional or reckless and widespread. So, that is what I was kind of focused on in terms of the evidence that was presented during those hearings and in my mind, I didn’t see that kind of evidence showing even if there was some intentional, let’s say infringement by individual, what we used to call ‘rogue actors’ at universities. It’s not widespread nor is it sanctioned by the university. Do you think that that matters in this case?
Douglas: I do think that matters and I think that was really a core part of the Supreme Court’s finding in the Allen v. Cooper case is that the Congress passed the law allowing private copyright holders to sue states but put nothing into the congressional record in terms of a congressional finding of this kind of widespread, sort of reckless intentional infringement by state governments that would have provided the the necessary justification under this congruence and proportionality test to carve into the 11th Amendment state sovereign immunity rights. And just for my benefit when you’re talking about the hearings are you talking about the roundtable discussion or something different?
Sara: In my mind, I keep calling them hearings and I know it was really a roundtable discussion but it seems to me that the copyright office was really trying to gather up evidence of some sort of infringement by state governments or potential for that that they could use to to demonstrate to Congress that this this is a problem, right? And what I saw is that there were some instances and I certainly felt badly for people, especially Allen from Allen v. Cooper. I think it was Allen, right, who showed up?
Douglas: That’s right, yup.
Sara: And I feel badly for him because, of course, he was mistreated by the government in that case if you read the facts about, you know, him taking a video and photographs, I think it was mostly a video and photographs of Blackbeard’s ship wreck and the state kind of taking that without giving him due credit and payment. I do feel badly but at the same time that is not enough to make… to abrogate sovereign immunity for everyone and I think what I noted the most was how strong the the evidence was on the side of folks from Universities saying, Hey we’re out here educating our users, we have, you know, strong copyright policies, we take matters seriously when people assert infringement and we don’t take this lightly” and so it seemed to me that there were instances, of course, of copyright infringement but they were actually few and far between. Which to me does not meet that proportionality test, right? So, it’ll be interesting to see what the Copyright Office says about the hearings or the discussions, right, because I suspect given what they’ve done in the past that they will find that there is evidence of infringement going on and that use whatever they can dig up, if you will, too kind of justify it and I don’t personally see that it was justified during that day of testimony.
Douglas: Yeah, I think that’s a really really accurate characterization in general. So, in the Allen v. Cooper case you have you know, normally if you’re going to try to press a claim like this all the way up to the Supreme Court you want the most sympathetic case you can have and in this case the North Carolina state government didn’t really didn’t have a particularly sympathetic position that they are in as you said you know, they weren’t sort of incidental or negligent copyright infringer in that case. They really didn’t paint themselves as I say as particularly sympathetic and the court found still in their favor because of the lack of finding by Congress that justified cutting into a constitutional right of the states. And so in the wake of that you have this just letter again from two U.S. Senators to the Copyright Office that kind of kicked off this process that resulted, most recently, in the round tables and that letter states explicitly that they’re looking, they’re asking the Copyright Office…Well, they start by saying that they the Senators quote “have heard from affected copyright owners that in recent years state infringement of copyright have become much more common” and so you can already see that they’re they’re really starting to set the stage for basically that the finding is is already there, right? They’ve already kind of made the case in their mind that this is a problem. A widespread and growing problem of state governments infringing copyright and then the Copyright Office starts the process of a of a study by issuing the series of questions and that’s where you and I first collaborated on behalf of the university to to submit a public comment and you know the nature of the questions don’t really get to accept until later on. The nature of the questions from the Copyright Office that they posted the public are really still more about narrow, specific instances of copyright infringement and not getting at any sort of evidence about widespread infringement so the first question for example from the Copyright Office to the public is “Please provide information regarding specific instances of infringing conduct committed by a state government entity, officer, or employee.” So, that doesn’t really speak to that that’s essentially the Allen v. Cooper case all over again in one specific instance is not enough to show the justifiable widespread conduct that would meet the congruence and proportionality test. So I thought, I thought that part was a little bit interesting about the way they even started this this whole process in the study and now later on in their list of questions they do try to pose a couple of questions that are little more about kind of widespread activity but that’s not really their focus and in what they’ve been doing.
Sara: I think what they’re trying to do albeit I feel that they failed but I think what they’re trying to do is just get this massive rising tide of complainants, right who say this happened to me and my brother and my sister and my best friend right and and that would maybe if you had enough individual instances they would try to throw them all in a pot mix it up and come up with a widespread showing. I think that they failed at that because the copyright alliance also did a study you say they have 1.8 million members and only a hundred and fifteen people said yes to a question about whether a state government or governmental actor had violated their copyright or infringed on their copyright and even in that instance we don’t know that it was done intentionally and we don’t know that it was even an actual violation, right? We don’t know if there was a valid defense. So, to me, this this was a complete failure, right, at least in terms of trying to do that individualized like rising tide. The other aspect of it, of course, and one that we have been pointing out is that if you could show, you know, copyright policies that are infringing that would show that there’s actually state action, right, that the government is condoning infringement. Of course, there’s no evidence of that either and you know our university has multiple copyright policies, folks you can talk to, educational policies, we have sanctions in our student code all of these things that just show quite the opposite right, that we take copyright very seriously and that we don’t tolerate copyright infringement. So, I just I will find it really fascinating to see what a Copyright Office summarizes from these round tables because to me I don’t see the evidence there.
Douglas: Yeah and I don’t either and I don’t and I didn’t hear any really during the round tables from folks at both on the the state government side and on the private copyright holder. You know the particular instances are still single anecdotes about infringing behavior and really even I didn’t hear anything about anything even close to the Allen v, Cooper type example where it was really just sort of out there with no justification. So for example, here at the University of Illinois the number of allegations of copyright infringement that we field in a year is well…we’re talking single digits at most and that was before the Alan . Cooper decision. So, at that point people had the private copyright holders, people have the right to come and you know, make claims against the university, they can press their claims in court if they wanted to but the reality is that we weren’t even getting that many complaints to start with and so it’s really interesting what..I agree with you I’m very interested to see how folks in the Copyright Office try to continue to to make the case that there is widespread intentional serial infringing activity going on in the state governments. You know, what I didn’t hear a lot from these roundtables was input from other state government agencies sort of what people would think of more of the traditional type state government agency you know, the department of revenue or the department of public health or something like that the state actors that came to the round table and also put in the public comments during the open comment period that you and I provided comment on. It was really the universities, the public universities and to some extent that makes sense, right, is that you know we, we’re both the most active producers, generators of copyrighted material through our faculty and university activities and also, consumers of copyrighted material for our educational and research purpose. So, it does make sense that we’re kind of the centerpiece of or the center of discussion about state activity related to copyright, in general but yeah I agree with you. I’m a little bit, you know, confused as to what they could sort of hang their hat on at the Copyright Office about any evidence of widespread infringing activity by state government.
Sara: Yeah and I thought I thought it was kind of interesting some of the questions they asked about us trying to have our cake and eat it too, right? So, like one of the questions was “Well, you all say at universities that you’re not infringing, so, why do you need sovereign immunity?” And to me that doesn’t really that that question is a little bit unfair right because first of all, well are you saying that we should be infringing because we have sovereign immunity? I mean, that’s not a good position to take, right?
Sara: And secondly, you know, we need sovereign immunity because it was granted to us by the Constitution and why was it granted by the Constitution because we are guardians of State funds, right, and so therefore you know they don’t…they being you know who framed the Constitution did not want state governments to go broke right because of all of these damaged lawsuits and in copyright in particular the damages get high really fast if you look at if you look at the statutory damage provisions right? So, you know, a single act of copying one thing can be thousands upon thousands of dollars and those are taxpayer funds, right, and so we really do need to guard those funds and it doesn’t mean that we take that to say oh well we’re just going to ignore copyright and I think that point was made numerous times. That we’re not only copyright users, we produce copyright. We have University presses, we have authors, we have students writing things, we have research going on and so, therefore, we want to guard copyright and protect copyright because we benefit from copyright, as well. And so I just…I’ll be interested to see what the report says. I think maybe you’ll have to come in and we’ll have to debrief after the report comes out and kind of just see what we think of it but I thought some of the questions, to be honest with you, from the copyright office seemed a little bit biased if you will like it seemed like they were trying to dig up trouble, right?
Douglas: Sure, sure, sure.
Sara: And I know that was maybe what they felt was their charge, right, because they were specifically asked, Senator Tillis was one of the senators who asked them to to do the study and and maybe they feel an obligation to copyright owners but it seemed like at times they were really trying to make what I would say mountain out of a molehill, right? One of the questions they asked me in particular was, you know what does intentional infringement look like. Well, it’s not hard to define intentional infringement, right? It’s something that you do on purpose and I was saying things like, ”Well, if you remove a copyright notice that seems pretty intentional, right, but on the other hand that’s not all that you need, you know, and when I tried to point out well it can’t just be intentional it has to be widespread, it has to be like an Institutional policy, I got cut off. Sometimes I felt like it was almost like they didn’t want to hear counter-arguments, right, and I don’t know what made me feel a little bit like, wow maybe they’re just trying to prove this case and and no matter what we say they’re going to say that there’s widespread infringement and I really hope that’s not true. I mean I would like to hope that the Copyright Office is being a neutral investigator here because I think that’s their role. And so like I said I’ll be interested to see what the report says because I felt that all of the folks who came to speak on the behalf of universities and on behalf of government actors and state governments, I thought we did a really great job in demonstrating that we respect copyright and we actually do engage with folks when when they come to us as evidence of true infringement. We don’t just turn them away and say, “Oh, we have sovereign immunity,” right, and so yeah, I just didn’t see the evidence that they were looking for. I didn’t see it. Maybe they saw something I didn’t see but I really didn’t see it, so.
Douglas: Yeah, I agree with you. I think the…I came away with a similar impression that the approach that they were taking, the questions they were asking during the roundtable sessions were more along the lines of justify to us why we shouldn’t take away sovereign immunity again, that it was…rather than sort of an objective, neutral and we are examining the state of affairs with respect to state governments and copyright infringement something something along those lines. It was really much more as we’ve talked about here it is much more of their going in position seem to be that they think that there is widespread intentional copyright infringement going on by state governments and they were going to find the evidence to back that up. And what I heard in the in the roundtable sessions really cut against that narrative. That it was…it was really good and I think our University is a pretty good example most sort of well behaving universities and I am not aware of any that are misbehaving in this regard but we have, as you’ve said, we have I mean well in first order we have people like you. We have a dedicated copyright librarian to advise student, faculty, and staff about copyright because we have…we want to show that we are complying with the law and we also have want to be able to protect the copyright, copyrighted materials that we generate here. You know, so we have people who advise on and sort of go out and do outreach and explain about copyright law we have resources on campus. And then on the very few times, again low single-digit, the very few times that we receive allegations of copyright infringement from private copyright holders we look at those very carefully. You know we don’t just we don’t just have a copy paste “This was fair use” I’m talking pre- Allen v. Cooper. You know, we don’t just say, we don’t just have a copy paste “This was fair use go away your allegation is unsubstantiated.” That’s not our approach and in the same way even after Allen v. Cooper, we don’t just have a form response email that says “State sovereign immunity, go away, you can’t sue us,” right? We look at each instance and we consider the facts around them and kind of walk through a full analysis of how did the copyrighted material got placed where first instance, what the justification was behind the use and a lot of times when we’re seeing are incidental uses of photographs, right, because that’s kind of the most obvious think I mean there are people that run web crawlers that look for photographs and either image analysis or metadata buried in the photographs that they’re crawling the web looking for where these photographs have reappeared and then sending, you know spinning up their machinery to start making claims for damages and the like and so when we look at these instances it’s really not a case of intentionally trying to infringe copyright. It’s certainly not a case of trying to profit off and in the main, we can find that the usage falls well into fair use standards for educational institutions and even then on occasion our university has still paid a settlement fee as a result of the use and so but we still have to kind of a lot of time, a lot of effort try to grapple with these allegations and but there’s no indication that it’s widespread and intentional to the level that that really should be a very high bar for abrogating 11th Amendment state sovereign immunity.
Sara: Yeah and I think you raise a point there that makes, that I felt was a little bit strange during the round table discussions which is the burden should really be on those were attempting to abrogate sovereign immunity and it shouldn’t be on those of us who are you know representatives of the state, right?
Sara: So, I felt sometimes at the questions were like “Well, why are you doing this, why are you doing that” and the reality is that’s not the burden, right? I don’t have the burden of proof here, right, and so I think that’s part of the reason the Allen v. Cooper case came out the way it did because if you don’t go out there and get this evidence or if the evidence, in my opinion, I don’t think that evidence exists, right?
Sara: If the evidence doesn’t exist, you can’t make it up, right, and again if you… if it state actors were behaving so badly that there was a widespread, you know, angry mob then why did large survey instrument only receive 115 angry people, right, out of millions of people itjust to me that’s that doesn’t add up and so that suggests to me that there are a lot of people who are who are contacting you know universities are or state governments and say “Hey you took my stuff” and then and the response is “Oh man, sorry, we’re going to take this down, oops” Not, “Hey we’re we’re mean and we get to do this just because” and again I do know that those things happen, right, Allen v. Cooper is not not a good case example for state government behavior, right, but I also think it’s an extreme example. I don’t think it’s the day-to-day, you know, behavior and and that’s what Congress needs to look at if they’re attempting to to abrogate sovereign immunity. So, it’ll be, this might be a whole other thing, right, where we go through more hearings, we get another law, it sits there for a while, right, and then ends up at the Supreme Court again and it’s is this just a 10-year cycle that were on just repeat what do you think?
Douglas: i think that’s entirely possible and you make a great point about, you know, the Allen v. Cooper case was not not in my mind not a typical example at all and because at least our approach and the approach of my counterparts at other universities is again it we’re notified of an issue, we go look at it and you know our usual first reaction is to give the copyright owner, the person making the allegation of infringement give them the benefit of the doubt and take down the material immediately, right? Say “Okay we’re going to take this down and then we’re going to examine the circumstances around it.” You know, unless it’s a very clear, well-supported fair use instance to start with in which we might say “Okay we’ve already know the way this material was presented someone thought through the fair use analysis upfront. It’s sitting there, we’re going to leave it there and we’re going to explain that back to the person making the allegation” and the other thing you were just saying, which is a good point, the evidence certainly doesn’t exist in any empirical form that I’ve seen and one of the questions that that I fielded on the round table was from the chief counsel of the Copyright Office Ms.Smith was trying to compare public universities to private universities and you know, I said something to the effect about what, good luck even trying to find well formulated, systematic, empirical data about private universities and their quantity of allegations and claims of copyright that they field and deal with but again also what’s the point of that comparison? We are public universities, we are stewards of the public funds, we have an educational mission. I mean the interesting thing is that in some ways, you know, if you look at the mission of public universities and state governments, in general we should really be pushing the boundaries of copyright to say most of what we do is justified by fair use and you have to prove to us that we’ve infringed but we actually don’t take that approach like we’re very cautious and with good reason, again, because we want to be respectful of the creative efforts of other people, photographs music movies et cetera and also we generate a lot of copyrighted materials, as well, so we have we have a strong interest in a well-functioning, you know, copyright enforcement system but at the same time we also have, there’s no evidence that we, that state governments but the public universities in particular are just willy-nilly, reckless, serial copyright infringers.
Sara: Yeah, so I really am interested to see what comes out of this and to review the transcript when it’s available. I did miss the open Q&A session at the end of the day so I’d like to go and see what was said there but in general, I really didn’t see a whole lot of evidence to suggest that sovereign immunity really needs to be abrogated and that there’s widespread infringement going on. So, it’ll be interesting to see. And my other experience with with individuals is that most people are just really afraid to violate the law and even when they have clear, what I would view as clear instances of fair use, some people are just very risk-averse and they don’t want to even try to engage with fair use and so, you know, I just think that it’s not the norm or the case, in general, that people are you know intentionally infringing copyright, especially on our campus where those are the folks that I’m engaging with and so it’ll be interesting to see what the conclusions of that round table discussion are.
Douglas: Yeah, I mean, I can even think of a sort of related example of the we have a requirement to provide accommodations for students and staff but obviously, the most important for us as a university for disability accommodations in the classroom and you know, I regularly am getting questions about whether copyright-protected material can be used and adjusted in the way necessary to make it accessible for someone with a disability and that’s, you know, that’s really sad that people are so so worried about potential claims, lawsuits related to copyright infringement that rather than than what should be the default answer, of course, we can do this for students who are visually impaired or hearing impaired in some way to make sure that they have a good quality experience in classroom equivalent to the other students, you know, that instead they’re, you know, they’re coming to to our office and saying “Geez, gosh, can we, you know, can we do this? Can we comply with the Section 508 of The Rehabilitation Act? Can we comply with the Americans with Disabilities Act because we’re worried about copyright infringement” and that’s a really kind of a sad commentary on the state of things but it also highlights the fact that people are not, again, they’re not out there just, you know, infringing at will and doing it without regard to copyright laws. They’re much more concerned about copyright infringement than anything else.
Sara: Yeah, and I definitely agree. I have not had instances where I met with people and I explain copyright law to them and they’re response is “I don’t care I’m going to do this anyway” or something like that…
Douglas: Right, of course.
Sara: I just haven’t I haven’t had that experience and so, I think it will be, yeah we will have to keep our eye on what what happens from here on out in this study and you know, keep on just telling the story of of what’s really going on at universities and thanks so much for joining me today. I hope people found this interesting. I found it really informative to participate in the round tables. I was so glad I was able to do so because this time we did them remotely so that made it much easier for everyone to participate and I just appreciate your time talking with me today about it.
Douglas: It was my pleasure thanks for having me in and they said you know with it might be that we end up here having another discussion in the wake of the Copyright Office issuing their report and could very well be back in the same position and you know, another year, two years what have you of another a new federal law that where they try to kind of fix the failures in the one that was overturned under Allen v. Cooper and you know, all of us having, you know, kind of trying to make the case yet again that they haven’t met the threshold of showing widespread intentional infringement without regard to the rights of the owners so we’ll see what happens.
Sara: We will and regardless we’ll just keep on informing our users on campus and keep on being good actors and we’ll see what shakes out.
Douglas: That’s exactly right and for you and for me, Allen v. Cooper didn’t really change anything. right? We’re still, we’re still out there thinking about this, trying to inform people, doing a careful analysis of all the actions of the University and you know we’re not just as you’ve said we’re not just saying, “We just don’t care about copyright now because we have state sovereign immunity.” We still care just as much as we did before.
Sara: Well, thanks a lot and I will definitely circle back when we get the results of that round table discussion because I’ll find it really fascinating either way no matter what they say.
Hello listeners, and welcome to another episode of Copyright Chat. In keeping with the themes of previous episodes during COVID-19, I am doing a solo produced episode, with just myself, Sara Benson, discussing a current, and necessary copyright topic.
So for today’s episode, I actually took to Twitter to ask you, the public, what you wanted to hear about the most. And the two most pressing issues that arose were Controlled Digital Lending, and not far behind, E-Reserves in libraries in the time of COVID-19. So today, I am going to address the first issue, which came up with the most votes in my poll on Twitter: Controlled Digital Lending.
Now I did not come up with the term Controlled Digital Lending. In fact, my colleagues Kyle Courtney and David Hansen wrote a white paper all about Controlled Digital Lending, which I’m linking to from this episode. And based on their understanding of it, and their explanations in the white paper and my own understanding of it, I’m going to explain it to you. And of course, I take no credit for their white paper, of course, and any misunderstanding that I tell you in this podcast episode are my own, but I think I have a pretty good grasp on what they’re arguing and what libraries are operating under when they are engaging in Controlled Digital Lending in the way that, for instance, the Emergency Access Library from HathiTrust is engaging in it. And so, without further ado, let me dive into Controlled Digital Lending from my own understanding.
So first of all, under the copyright act, we have a right of first sale under section 109 of the act. So that’s Volume 17 of United States Code, Section 109. And under the right of first sale, anyone can sell, give away, do whatever they wish, with a book or other item that they purchase in physical format from a publisher or an author. And so when I publish a book, let’s say I’m publishing a current book from the American Library Association, when the ALA sells my book to a reader, the reader then owns that particular copy of the book. And so the reader can lend that book out to friends, the reader could sell that book on Amazon, could put it on their front yard in a little free library, they could sell it in a garage sale, etcetera, etcetera. They own that particular copy of the book, and they have extinguished ownership right of the publisher upon the sale of the book. So the publisher can no longer garner any kind of compensation from lending of the book or the sale of the book, right? So when you sell in your garage sale, you don’t need to offer any remuneration to the author or the publisher at that point. And so, that is what most library lending is occurring under, section 109 of the copyright act. When we purchase a physical book, we lend it out as many times as we would like, and we don’t have to pay any fees for that lending. And that’s the same type of thing that an individual can do in their home library, or little free library, for instance, or the public library, for that matter.
Now important aside is that this has to be from a work that is in print or in a physical format, such as a CD or a DVD. And another aside, or important fact, it does not allow you to make a copy of the work. It allows you to sell that particular work. And so, you don’t own the copyright, right, you can’t do all the things that a copyright owner can do, such as make reproductions, but you have the right to that specific piece of property, that specific book, that specific CD-ROM, that specific painting, or something of that sort. And so, that is a lot of what we do, like I said at public libraries and academic libraries, we lend out the work.
And the reason, I think that we have the right of first sale and it’s so strong is that we understand that a physical work, over time, will deteriorate. Right, so, that physical work doesn’t last forever. Of course we, of course we work very hard in preservation and libraries to preserve the work as long as we can, and we have rights under section 108 of the copyright act that give us rights to make reproductions or copies for the purpose of preservation, which is a whole other story, but we try to preserve the physical work, right, we scotch tape the cover on if we need to, we will help re-bind it if we have to, with the cover, with the binding becomes lose, etcetera. But at some point that physical, those physical page of the book will deteriorate, and so it is not, it cannot be lent indeterminably, forever, right, for an indeterminate amount of time.
So where the right for first sale, the right of fair use begins, right? And the right of fair use is an umbrella, right, that works in operation with our other rights in the library, such as the section 108 rights of reproduction for preservation and inter-library loan, and things like that. Section 108 is, can be independently used, but it also can be one of things that begins when another right ends. So the theory of Controlled Digital Lending says that, if I, a librarian in a particular library have one copy of a physical book, and I do not lend out that physical book, but I lend out a digital reproduction of it that is not further replicable, so it has digital rights management on it, and it can only be viewed by one verified library card holder at a time, then I’m essentially just exercising an extension of that right for first sale, right, I bought this one book, I can lend out this one book as many times as I would like. Now the right of first sale has never been extended in a court or by the Congress to digital works, right, because again, a digital work could be reproduced over and over and over and not necessarily ever deteriorate, which might somehow hamper the right of the copyright owner, right, because they have recovered for one sale, but if you keep that one book forever and lend it out forever and ever, then they never will get those other sales. So that would, at some point end, right, the right of first sale, but then fair use begins. And that’s where Controlled Digital Lending kind of falls, in this gray area in-between section 109 and section 107, which is fair use, saying that, “Hey, we are lending this book for education and research purposes, we are not making any money off of the lending, we’re not replacing the market value for the work, because we did purchase the work, and we would have otherwise been lending out to our users.” And in particular, especially during COVID-19, when we are in a public health crisis, and our public, our patrons, cannot come into the library physically to see the physical, we are going to let them view the book on an emergency basis, digitally.
And so that’s where first sale and fair use meet, and in particular during COVID-19, I think this is a really great argument, because we are trying to protect the public health by not allowing the patrons to borrow the books, and there are risks to borrowing physical books. A lot of libraries are quarantining books after they are returned because they’ve been handled by the patron and germs could spread in that matter, and so they are quarantining the books for up to a week, and so, you have a lag time, and at the same time, really crucial research is going on, right. We are trying very hard, especially at the University of Illinois, which I’m sure you’ve seen our prolific testing that we’ve been engaging in. We’re trying very hard to come up with a vaccine for COVID-19, we’re trying to come up with effective treatments for COVID-19, more effective and quicker testing and more widespread testing. And all of these things are so important for public health and education and research, and if people can’t get to these important resources, these books that are held in our library, they potentially cannot engage in this life saving resource, this life saving research.
And so, the fair use argument is fairly strong right now. I think the fair use argument, in terms of Controlled Digital Lending, can vary, right, the strength of it can vary, right. How, what type of book are you lending this way? Right, is it Harry Potter, or is it, you know, a medical book that’s being used to fight COVID-19? These are very different resources. And then are you limiting the lending to one-to-one ratio, right, which is the idea that we have one book in our possession in the library, so we are lending one copy to one patron at a time. And, if you, say, have five copies of the book, you could potentially simultaneously lend it to five users. And then of course taking those measures to make sure that the book cannot then be further distributed from that patron to other people, right, making sure that the book is controlled in terms of digital rights management, so that, when that patron checks out the book, they are unable to further lend it to other people.
And so, I think, like I said, that there is a very strong fair use argument, especially during COVID-19 for things like the HathiTrust Emergency Lending, emergency access, and I know other libraries are also engaging in their own version of this with their own locally sourced digital copies that have Controlled Digital Lending on them, such as lending to one patron at a time with digital locks and things like that. And that is the theory behind it. Like I said, I’m also going to attach the link to the white paper, and I encourage you to look at it, and I believe that I have had, in fact I know I have had previous episodes of this very copyright chat where I’ve discussed Controlled Digital Lending, and I will encourage to go back and listen to the episode with Mike Furlough who is executive director of the HathiTrust digital library, if you’d like further information about that. And I hope you found this explanation helpful and useful, and that it makes some sense to you as to where this theory comes from. And I’m happy to engage with E-Reserves in another episode, as I had a lot of interest in that as well, so take care, be safe, and I will talk to you soon.
Sara Benson: Hello and welcome to another episode of Copyright Chat. Today, I wanted to take a moment to discuss with you some questions about reading aloud in the era of COVID-19.
Lately, many folks have tried to engage with their students in an online forum. Why have we begun to do this? Usually, librarians in public libraries, school libraries, and even academic libraries will engage with their students in face-to-face classrooms on very frequent basis reading aloud sometimes in groups, sometimes with the librarian directing but usually without any fear of retribution and exercising their rights under the face-to-face teaching exception of copyright. When teaching in a face-to-face environment the copyright exception is rather clear. The Copyright Act provides that anyone may read aloud in the course of face-to-face teaching in a non-profit educational institution or library as long as they are performing or displaying a copy of a lawful work. So, this does not allow them to make a copy of the work but rather to read aloud, to watch an entire movie, to act out a play, to listen to music, all of those sorts of things that we do in the course of face-to-face teaching.
However, in the era of COVID-19, many folks have had to move their classrooms or their library’s classroom settings online and when doing so they’ve become concerned about licensing issues and the realm of possibility of being sued under the guise of Fair Use. Unfortunately, publishers have tried to clear this up but in a way that just made things more confusing. So, many popular publishers reached out on their websites granting libraries a “exception” to copyright allowing them under their purview of owners of the copyright to perform the works with certain guidelines. The guidelines varied from publisher to publisher. Often, they would include that they had to limit the number of users that they were displaying the work to or credit the publisher when they read the work, et cetera, et cetera. I know the publishers were attempting to do something good; to make an otherwise muddy area more clear for their users, their patrons, the librarians, other members of society who wish to read aloud. The problem is that we didn’t really need the publisher’s permission to do this in the first place. When we exercise Fair Use, we do not need to ask for permission to do so.
The problem is that many folks feel very uncertain when exercising Fair Use. They feel that the risk is too great, that they don’t want to be sued, and that they don’t feel comfortable making a good faith Fair Use determination. Unfortunately, the more that we give in to our fear of exercising Fair Use, the more that we allow publishers to overreach. Again, like I said, we didn’t need the publishers to give us permission to read aloud books. Especially, if we were doing so for educational and transformative purposes.
Let me give you a greater example here. Let’s say I am a school librarian and I’ve been forbidden from meeting with my students face-to-face because of the possibility that COVID-19 would be spread in those interactions. I wish to read from a book, a children’s book online and provide that streaming to my students in my classes. When I read aloud, I often pause for emphasis, I often explain the meaning behind certain phrases. I use it as an educational opportunity to get the students to think about the context in which the story takes place and I use it to explain the meanings of different words and maybe even grammar. So, I’m not just reading the book straight through but I’m providing educational opportunities and other questions that the students can think about as they’re listening. In this respect, I am not transplanting the original market for the work but I’m transforming the way that I am presenting the work in a way that brings new meaning or message. The clear and classic transformative Fair Use example.
Now, I know what you’re thinking. You’re thinking that poor librarian could still be sued for exercising what be seems to me, Sara Benson, to be a clear Fair Use. That may be true but I also would like to point out that there is a possibility that she wouldn’t get sued because if she had a good faith belief that her exercise was Fair Use then Section 504C-2 of the Copyright Act provides that she could not be sued for statutory damages in that instance because her belief was a good faith belief and she was acting as a non-profit educational librarian and in that scenario, I don’t think that they publisher would have as great as an incentive to sue because they would get any large damages in that instance.
So, in other words I want to point out that when a read aloud scenario in order to educate to help your students to process information to provide additional context and meaning to the work that you’re reading. You’re not transplanting the market value for the work but rather you’re providing a transformative educational experience for the students and one that the publisher has no right to tell you how to do so. I know, the publishers were trying to do something good by providing some limited exceptions to their copyright but we really should feel a little bit more empowered and use the Fair Use limitation on the rights of the copyright owner to go forward with read alouds in a way that is educational and transformative for our students.
I’m linking here, in this podcast episode, some explanations of this Fair Use exception as it applies to read alouds and this was drafted by some very intelligent, smart copyright librarians and other individuals in the copyright field and I hope that you will find it informative, as well, and I find their examples really helpful too. So, one of the examples that they provide where they state that it would not be a Fair Use is one in which a librarian starts a YouTube channel that is more for entertainment than for education and opens it up to the general public and receives ad revenues for that channel. I think, that is a clear example where the transformative Fair Use doctrine has been pushed a little bit too far and the commercial use is potentially transplanting any revenues that the publisher could make off of their work.
However, they do provide the example that I used earlier where someone is using the work to educate their students and to educate the public or their limited public in the case of a classroom experience about different themes from the book or different vocabulary from the book and in that instance they conclude that it is more likely to be a Fair Use and so, I would encourage people to review the guidelines set forth in the tiny URL linked from this episode and to think through Fair Use with a little more clarity and little less fear and I’m also linking to a chapter that I wrote in the “Copyright Conversations” book below about fear and Fair Use and kind of quell that anxiety that comes when we try to exercise Fair Use. So, I hope you found this informative and I look forward to seeing you on another episode of Copyright Chat.
Mike Furlough Explains the HathiTrust Emergency Temporary Access Service
Sara Benson: Welcome to another episode of Copyright Chat. Today, I am very pleased to be speaking remotely with Michael Furlough who is the Executive Director of the HathiTrust Digital Library. Welcome to the show.
Mike Furlough: Hey! Thank you very much for having me. I really appreciate the opportunity to talk with you all today.
Sara: Thanks so much for coming and virtually, at least, for spending some time with me to chat about this. So, I’m pretty familiar with the HathiTrust Digital Library but I know a lot of listeners may not be. Could you explain to the listeners who are unfamiliar with the library, what the HathiTrust Digital Library collects?
Mike: Sure, and I will give you a little bit of a history, too. So, our primary goal and mission is to collect, preserve, and make accessible materials of scholarly and cultural record. Mostly, that takes the form of books that have been digitized from research libraries. Right now, the collection has about 17.4 million digitized volumes. That is like a book on a shelf that has been put on a scanner and that corresponds to just under 9 million titles. So, that includes books, single authored books, but also, serials, journals, things like that. We got started—really the start of HathiTrust emerged from the moment when Google, when it was still a pretty young company, began working with libraries to scan collections at a really large scale. I mean, their plan had been to or was to simply scan everything in these libraries and one of those early partners with Google was the University of Michigan and soon it was followed by other colleagues from the Big Ten, including Illinois, and those libraries started to plan for large scale cooperatively funded infrastructure that would support preservation and support access and really focus on a researcher or student mode of access to the collection. They recognize that they work together they can do much more with their joint collections effectively in a way that they couldn’t in a grant landscape. So, they also started working with other universities and in 2008 the University of California joined on with the Big Ten to form HathiTrust. We now have about 150 members worldwide and we’ve launched a lot of major programs that help us take advantage of the corpus, take advantage of the collection in ways that you just couldn’t for a print collection, as well.
Sara: Wonderful. So, it sounds like the collection is fairly robust at this point especially. What is your role within the library?
Mike: So, I’m the Executive Director. My job is to lead the organization as a whole. And it really is an organization, as I said. So, I do things like on a day-to-day basis I’m working with my team of about 12 people to help monitor our uses, monitor our finance. On a larger scale, I’m looking at our strategy, helping to set and define policy. I am accountable to a Board, a board of governors that includes representatives from the memberships, so, I work with them regularly, monthly, in a—to give updates and talk about what we’re working on and to understand what direction we might—what course corrections, rather, we might want to be making.
So, we have— one thing I would let your listeners know is that we have services that are operated at different institutions. So, I am based at the University of Michigan, but some of our services are operated here, but others are operated at Indiana University, some at the University of Illinois. California Digital Library also operates some services. All of these are like contracted services. So, even though my team is about 12, really were relying on the distributed expertise of the membership and there are dozens of people that work on HathiTrust.
Sara: Wonderful, yeah. I’m very familiar with some of the work that goes on at the University of Illinois in collaboration with the iSchool, as well. Is—can you talk a little bit—I’ve heard a lot of buzz lately around the Emergency Digital Library. Can you talk a little bit about that and why that was started?
Mike: Yeah. So, maybe first I should say a little bit about how access usually works in HathiTrust. You know, the collection is, as I said, over 17 million volumes. Much of that material is in copyright and it was scanned lawfully for preservation purposes and we’re able to take advantage of fair use and other exceptions to the copyright law to use the copyrighted materials in particular ways. We can provide access to users who are blind or print disabled, we can make it available for search. The HathiTrust Research Center which is all affiliated with the iSchool of Illinois is a service that allows for advanced users to run software for text and data mining on the entirety of the collection without regards for copyright status. That is something fairly, clearly defined lawful under fair use. But for the works —the only works that we really show in view form, the works that people can read on the site, are the works that are in the public domain. So that’s material that was published before 1925 in the U.S. or maybe it was works that fell out of copyright because they weren’t renewed, or they were never registered. The members of HathiTrust have the ability to access those materials in full and download them. That is the normal way of work, but those in copyright materials, normally readers can’t see them.
What we have done recently is launched an emergency temporary access service that is really for us unprecedented and we think unprecedented in library land, as a whole. What we’re doing now is providing limited access to those copyrighted works due to the fact that libraries have been closed for public health reasons. We launched this on the last day of March. We spent about three—three and a half weeks in March planning it, developing it, testing it, before we got to put it out live. Where it’s activated students and faculty and staff at a member institution, like Illinois, have the opportunity to log in HathiTrust and they would log in just as they might log in to their email portal at their university, use the same credentials. Those persons would then have access to books in HathiTrust that are both in the collection of HathiTrust and in your local library collection. So, books that are in the library at Illinois and are in HathiTrust are viewable to students and faculty and staff at Illinois.
You can read the books on screen. You can’t download the books in full, though. And we give access to users for up to 60 minutes, but a user can extend that 60-minute period by continuing to read the book. So, if they’re paging through the book their access duration will continue to extend. We call that a check out but it’s really not a check out like you’re taking it away, alright. You’re using it entirely within the HathiTrust interface. Last point about the way this service works is that a user—the number of users who can access a book is—matches the number of books on the shelf. So, if you have one copy of a work only one user at a time can use it, just like only one user can use that book at a time in the library. If it’s three copies on the shelf, then we can allow three users at a time. Where we are making this available is—it’s very localized. It’s the library is—users where their libraries have this service are closed or access to their collections is currently not available, substantially disrupted because of the public health crisis. It’s not activated everywhere. Not all HathiTrust member libraries have chosen to use this service. In some cases, they believe they can provide access in a way that was enough for their patrons or they simply just made the choice not to close all their library locations because their situation allowed that.
What we’ve seen in the last several weeks is that usage has been very high and gradually increasing. Since the end of March through yesterday we have had over 208,000 checkouts. So, 208,000 instances of books being checked out, used by a member. That’s an average of just under 5,000 a day. We’re seeing about 3,400 unique books being used in a day on average by about 2,250 unique users per day. All of those are on average. So, we’re — that’s a lot of use for a library that is honestly—can be—is not especially well-known by users until they suddenly find us like this. So, we’re really pleased that we can provide this access. We recognize that in the time when we all of a sudden had to flip a switch and close our buildings up, try to maintain access for instruction and research there’s a real challenge there and unless we took these steps, we felt that our members would be kind of stuck in trying to provide access for their students and faculty.
Sara: Yeah, it sounds like it’s getting a lot of use and I’m really pleased to hear that. Is this digital lending emergency library based on the idea of controlled digital lending? I am familiar with that concept that it’s a fair use if you have, say, one of those books in your collection and you’re only lending out one electronic version of the book. Is that kind of the theory behind it or…?
Mike: Well, it’s—you know, one difference I would point out here is this: is that we’re not really lending a book. So, in some models of controlled digital lending someone is being given a file that they can then take away and read on other devices, not unlike that you might do at your public library with OverDrive or some applications for your library collections. Emergency temporary access is based on fair use. We—when we were determining if or how to operate this service, we looked at the four factors defined under Section 107 and there were two factors, the first and the fourth, that we really learned on heavily in our analysis. The purpose of the character of the use, for example. What we’re doing here is definitely not a transformative use. When we are digitizing books for computational access, that might be—well not might, it is a transformation of use, but for reading access that is not transformational. But what we are doing here is providing access for research, educational, and noncommercial uses and we enforce research—we enforce that stricture but limiting access to students, faculty, and staff at higher education institutions and we enforce that through authentication.
The market impact is another big factor, the fourth factor, impact on the market, and with this service what we’ve tried to do is focus on how we can limit access to these books, those books where the library has already lawfully acquired a copy of the work. So, that is similar to the example you gave a second ago. You know, we’re saying unless the library has a copy of this book, we cannot provide access to that copy. They’re not entitled to it; the users would not ordinarily have access to it on their shelves. But we wanted, also, to focus on how we can limit duplication. We didn’t want to proliferate copies out of HathiTrust. And the collection is really, primarily twentieth century materials to start with. So, a lot of this might be off the market, might be out of print, not all of it, though, by any means and we don’t want to take the risk on that. So, instead what we’re doing is making sure users can read the material, have sufficient time to read the material but we’re not allowing lending or download of the book so that they can actually substitute that copy for a newly purposed of that copy if that’s ordinarily what they choose to do.
Sara: That makes sense and I think, also, the fact that it’s limited to staff and students and libraries that have the physical copy in their stacks makes it distinguishable from some other fair use digital lending that I’ve heard about.
Sara: How long do you anticipate the emergency library lending to continue or is that kind of dependent on how long the libraries are closed?
Mike: That is entirely dependent on a lot of factors. You know, when we launched this, when we first started planning it, we were, I think, all of us in the United States, in particular, but probably elsewhere as well, were gradually coming to grips with the significance of the changes we were going though. You know, when we left our offices in mid-March, we probably thought we would be back in our offices in a month, or at least I fantasized that we might. And so, what we’re really analyzing right now and discussing now, is as circumstances change how does our policy for access under emergency temporary access services, how does that need change, as well? So, we don’t have a date that we’re going to turn this off. The intent for us is really to be responsive to member needs. All of the members of Hathitrust, all the libraries in the United States, really, will be facing different situations.
This is not going to be, in fact, it would be easier for us if everybody— if we said on X date were going to turn this off. By wanting to be responsive and ensuring that where the need is there, we can meet it we’re going to have to work with our member libraries to understand their local circumstances and the ways they are planning to re-open. We’re all going to be facing phased restarts and returns to our workplaces. All of our universities and colleges are trying still to figure out what kind of instruction they can offer in person this fall. Our libraries are starting to plan for how they can allow people back into the building and how many and under what circumstances and whether or not their collections can be accessed as they normally would. Right now, you know, I don’t think any of us know how our libraries would operate when we have to limit access to the building. We’re used to allowing as many people in as we can under the fire code but to say well, we’re only going to allow X number of people per square foot per hour which I think a lot of us might have to face, that’s going to be a real challenge. And I think, that question then becomes how do people access those collections based on the public health guidance and strictures that are in place at that point. So, we really aren’t sure how long this service would need to be in place at, say, University of Illinois. A lot of that will depend on Illinois’ specific circumstances. We want to be responsive to the member’s needs, the user’s needs, the student’s needs, but we’re definitely right now reviewing our services and our policy and our fair use analysis and considering how— what it means really to be responsive in that way, in this changed environment, going into the next several months to a year perhaps.
Sara: Do you think—just one last question—Do you think that this is an opportunity for people to engage more with fair use? I do, and I wonder if you know, there are people who have never engaged with HathiTrust before who may be engaging with it are kind of taking some interest in why there’s an emergency library. Do you think people are kind of getting the memo about fair use or getting the word out?
Mike: You know, that’s a good question. I think that you’re right, under, in the kind of last six weeks, eight weeks, or so, when all of our campuses suddenly changed dramatically, our modes of instruction changed dramatically, we all really have to rely on fair use in a way— to a degree a lot of us really had before or even had been unwilling to in some cases because some institutions may be more risk adverse than others. You know, I think what’s going to be interesting to see is what is, I’m going to use the word consumer here but I really mean student users, faculty users, you know, how do consumer’s expectations of access change in the next year to two years as social distancing continues? You know, if you’ve had access to significant amounts of material or much more easy access to material that you ordinarily did not have before, if fair use is not justified or the fair use argument can’t be made for access when circumstances change, consumers are going have a question about why that is and I think, that will potentially raise some questions about how copyright law might need to be changed to accommodate those different circumstances.
Sara: Well, this has been a really interesting discussion and I really appreciate you taking time out. I’m sure you’re very, very busy. Sounds like the HathiTrust library is very busy which I’m very happy about. And as a copyright librarian I just thank you for being to be willing to serve the patrons of my university library in this time when we can’t get in the building and I know that our patrons really appreciate this emergency library access. So, thank you so much for talking to me, thank you for leading the charge and pushing forward with fair use and all of the things that you do every day.
Mike: Well, thanks so much. I have to say this is, for me and for the entire team, and I really need to give a shout out to the team, I’m just a spokesperson here. My staff really made this happen and I don’t think we’ve ever found a more rewarding moment in our work than launching this service, frankly.
Welcome to a COVID 19 edition of copyright chat. I’m Sara Benson and today I don’t have a guest. It’s a little hard to have guests nowadays when we’re all standing six feet apart. But today I’m going to expound on fair use in the age of COVID 19 and I hope you’ll join me and maybe even learn a few things today. So what has brought us here, obviously the world is in a disaster right now. I mean it’s a pandemic. It’s a global nightmare. I was supposed to travel to the American library association meeting. I was supposed to travel to the digital symposium in San Diego. All of my travel has been canceled and I am currently under quarantine by the governor’s order. But what does this mean for copyright? Of course, we’re in an age where copyright is really easy to gain and it’s lasts for a very long time.
And as I like to tell my students and other professors and even other copyright librarians because we’ve struck that balance in terms of long copyright and easy to obtain copyright. We also have the public benefit weighing on the other side with multiple copyright exceptions including section 108 including fair use section 107 well which is a limitation, not an exception but and also the exception for face to face teaching and distance learning under the TEACH Act. I want to say one note about the Teach Act. I wrote a medium article, I’ll link to it from this podcast post criticizing the copyright office blog. They recently asked a lawyer to vocalize support for using the TEACH Act section 110(2). In these times of uncertainty when moving your courses online rapidly, I think that that recommendation is laughable at best.
Why? Because most copyright librarians know that the TEACH Act is not a useful act. It is so burdensome on the copyright user, on the person who is trying to teach online that most of the requirements render it meaningless. For instance, you are supposed to immediately take down any copyrighted works that you use, say in a PowerPoint as you’re teaching. But at the university of Illinois, at the school of information science for instance, we record all of our online teaching sessions and we leave them available for students who couldn’t attend class, which is even more important today in the age of COVID 19 where many students are moving to their homes, away from their college dorm or college apartment. Maybe they’re ill, maybe they have COVID 19, maybe they are mentally not handling things very well. Maybe they have a high level of anxiety which is interfering with their ability to concentrate.
Whatever the reason our students may not be able to attend class during the regularly scheduled time and having those resources, those class sessions recorded available online for them to watch later is really important. Especially important right now during the era of social distancing. And so the teach act does not allow for that. It says that we have to, you know, delete anything we’ve made. We can’t allow the students to access that material after class. The class session and there are a host of other requirements such as using anti-circumvention technology and also instructing students and professors about copyright and having a university copyright policy. A lot of these things are just not in place. And so I would say that it is not helpful to suggest that people scramble to try to use that the teach act in these times. Instead, what we should really be focusing on is empowering people to use what they already have their fair use rights.
And that is what a group of copyright librarians nationwide and myself included have advocated. So we’ve written a statement in favor of a broader use of fair use in this time for teaching and learning and research and scholarship purposes. And the rationale is fairly simple, right? It’s that we can’t use our normal practices. I’ve never in my life experienced something so different and so abnormal as this quarantine. And in this time of the quarantine, my library services are physically at least shut down. So you cannot go into the library to check out a physical book, which would of course, um, invoke the right of first sale where the library would be able to lend you the book and you wouldn’t need to make a copy of it. Unfortunately, we don’t have that available. What we also don’t have available right now is interlibrary loan because we don’t have faculty or staff in the library making those copies.
So this is a time when for the health and safety of the public, we need to exercise fair use because we cannot exercise our section 108 rights for instance, or exercise our first sale rights, some of the things that we already had. And I’ll give you an example where I feel that we’re really not harming the marketplace. Here’s one example. Let’s say, um, your students had to buy a course pack, uh, at the beginning of the semester. And right now we’re midpoint through the semester, right? So they bought the course pack, but they, in their haste for leaving campus on spring break, they didn’t bring it with them. They, of course have already paid the licensing fees for that course pack because they purchased it. Should we then require them to buy another version of the course pack, say an electronic version? Or should we be able to exercise fair use and scan that copy for them with digital management software so they can’t just download it and share it with other people because they’ve already paid the licensing fees.
Now I would argue that that’s a fair use. Others would say no, but this is, these are the kinds of questions we are having to face right now. Another example is say a student purchased a textbook and it was not a cheap textbook and they’re already three quarters of the way through the textbook. Should we require them to then purchase another textbook and have it shipped to their home or are we in a realm where somehow making that available to them electronically would be acceptable? We also don’t even necessarily have a way to make it accessible to them if we don’t have staff in the buildings making copies. So this is may even be a moot question. Um, but I will say that the internet archive has really been providing a service to libraries, particularly where I’ve heard the issue is with public, uh, high school librarians where students are about to, um, read some fiction for their senior English class for instance.
And the books have been purchased. They are sitting at the library in the school, but the students cannot go to school. I just received a memo from our, um, school district today that the school will not be physically back in session at least until April 30th and that may even be extended so they cannot get to those books. So now what? Well, what the internet archive has been doing is allowing access to in copyright works through digital lending. And in the past they had been lending just one copy of the book. So if they had a physical copy of the book, they would lend one copy of the book, especially in the last 20 years of copyright protection. Those books would be available and they’ve opened that up to allowing more than just one to one ratio of the books being available. And of course it has put them in the crossfires of publishers and authors who are upset that their book is available for purchase and now is being lent.
So of course they will respond to author, take down notices, but for folks who are trying to get access to learning for their students, for instance, I’ll give a great example, which is the great Gatsby. It’s in its very last copyright year, the last year it’s going to be in the public domain so soon. And yet a lot of students in school are reading that book and so the internet archive can lend it out at no charge. It’s really probably not harming the marketplace very much because it’s almost out of copyright anyway. So we have a lot of those really great examples where that seems like a no brainer. Like please allow people to use the Great Gatsby for learning. We have other examples that are less clear, right? Where something is, is available. It’s newly copyrighted, it’s not as old. It is available for purchase.
So these, these, these issues are not black and white. They are definitely and a shade of gray. And I think unfortunately when making these quick decisions and making things available, they’ve had to make broad swaths of things available because they don’t know who needs what and what their purpose is. So I think the internet archive, at least from the copyright librarian perspective, I think is doing a great service. But I do see where I think they’re going to have to respond to a lot of take down notices and time will tell if that is enough to um, appease the authors who are kind of a little bit upset, I think for good reason with some of these practices. Another example of what has been happening is the HathiTrust digital library is making, um, some of the works that are in copyright that have been digitized from individual libraries available to those libraries.
So the book physically is in our library. We scanned it and gave it HathiTrust, but we didn’t have access to that scan. And so I think this is a really great exercise, a fair use, and it’s not really broad. It’s right, it’s giving us access to what we already would have had access to. We just can’t get to the physical books because they’re in our library and we can’t go into it. So that’s less I would say risky move and I really appreciate it. So those are a couple things that are happening in addition to, as I said, the statement that was made by copyright librarians. So what do I think this will all lead to? I actually think that after this calamity is over, we will have a broader sense of people being willing to assert, fair use, right?
Because I think until now a lot of folks have been very reticent to, to use fair use. They’ve been afraid of getting sued. They’ve been afraid of exercising that. Right. But I think now folks don’t really have a choice often. Right? Especially if you’re teaching online like I am. You kind of have to do it. If you don’t have a, the TEACH Act exception applying, which I don’t, um, cause my institution doesn’t really comply, then you’re, you’re going to have to find yourself in fair use, uh, waters and get more comfortable with it. And so I’m hoping, I’m really hoping that one of the outcomes of this whole mess that we’re in right now is that folks will continue to use fair use in a more, um, productive way and be a little bit less risk averse. That’s what I’m hopeful. I don’t know, time will tell if that’s a true thing because I know some people feel more comfortable exercising fair use right now because of the emergency nature of the exercise of the right.
But I do think if they’re willing to use it then they maybe are feeling more confident with it and more an understanding it a bit better and hopefully they’ll feel a little bit more empowered going forward. So those are just some of my thoughts as I am locked in my home. Like all of you, I’m thinking through copyright issues on a daily basis, answering questions, um, from all sorts of different parts of campus. And, I really hope that this left you with a little bit of information. I will definitely share links to all of the things that I’ve mentioned. And, the last thing I want to do, last thing I’ll say is that I really am so happy to be a part of the copyright librarian community because they’ve really come together and put together zoom consult hours for anyone nationwide and an academic or research library who has copyright questions. And I know they’ve been super valuable to people. And so, um, I hope that you take the time to, um, look at that schedule and, and talk to the folks that are available to answer questions. In addition to looking at the kind of best practices documents that I’ll link from this podcast episode, so be well, stay safe. And, hopefully I will have another guest on copyright chat soon. Bye. Bye.
Fair Use in the Age of COVID-19: https://medium.com/@srbenson/fair-use-in-the-age-of-covid-19-6ffc84d4c690
Sara Benson: Copyright chat is a podcast dedicated to discussing important copyright matters. Host Sara Benson, the copyright librarian from the university of Illinois converses with experts from across the globe to engage the public with rights issues relevant to their daily lives. Hello and welcome to another episode of copyright chat. Today I have with me live in studio, Dr. Jasmine Roberts. She’s from the Ohio state university. She is a lecturer in communications and an OER champion. She actually did her master’s degree here at the University of Illinois. So, welcome Jasmine.
Jasmine: Thank you so much Sara. I’m really excited to be here.
Sara: So for those listening, I just usee the term OER. A lot of folks don’t exactly know what that is. Can you tell us a little bit more about it?
Jasmine: Yeah, absolutely. So OER stands for open educational resources and essentially that means that these resources are free and available for the most part to the general public. That doesn’t necessarily mean that they’re free to create. I definitely want to say that because there are foundations and institutions that definitely provide the financial backing behind this. But they are free to the user and also they are openly licensed, due to creative comments. So creative commons is a nonprofit organization that helps to openly license one’s work. And that’s the really cool part about OER. They’re not just free digital resources. A lot of times when I tell people about OER, and you know, they oftentimes think if they do know about OER, they oftentimes think, Oh, those are the free digital resources that I can just find online. But it’s not just that, it’s the permissions piece, right?
So you can customize the content, you can take out content and put it, you know, remix it with another OER if you wanted to, to make that content a little more relevant to your students or to the learner. Um, you can keep it for as long as you want. So unlike, um, some of the inclusive access, um, things that we’re seeing from some of the major publishers. Um, I can have access to an OER for a very long time forever. Ideally, there is no paywall that prevents me from having access, you know, longterm. And it’s really cool not only for the students, but also for educators again, because of the faculty autonomy. Again, one can make sure that the course materials are more in line in terms of what the instructor truly wants to get out of that classroom experience. So that’s basically OER in a nutshell.
Sara: That’s awesome. That was a really thorough explanation. So one of the reasons that I’m interested in OER as a copyright person and copyright librarian is, is the licensing, right? What exactly does that allow people to do? And like, can you talk about the difference between something that is free versus licensed openly, a little bit more?
Jasmine: Yeah. So, a really good example would be, for example, library resources, right? So to students that is free and I put that in quotes, because they don’t have to pay to use a textbook that’s on course reserves for instance. But that’s not free to the library. That’s not free to the university and what have you. And in terms of access and permissions piece, the students still can’t, for example, customize the content if they want it to, to make it more relevant to them. They can’t remix it with another OER. I mean, it’s still a copyright textbook. They’re just able to access it. You know, more than you would if you would have to go out and buy it. Uh, but even then the access is limited if it is on, for example, in course reserves, usually it’s, you know, you could have access to it for about, you know, minimum two hours to, you know, full day, depending upon, you know, the timeframe that the instructor puts on that. And so there’s a still a little bit of restriction, right when it, when it comes to access. Whereas with OER, again, you can essentially, you know, engage with that content longer term. And a great example of that in terms of how students can really make that content more relevant because of the permissions pieces. So I wrote my, my own OER and we’ll probably talk about this a little bit later on.
And in one of my classes we were having a really cool new discussion and one of my students had given an example that I thought was really, really relevant yet. Something that I had not thought of and I, you know, came up to her after class and I said, Hey, you know, I really liked that example that you gave in class about this concept that we were talking about. Is there any way for extra credit you would be willing to maybe write like a paragraph or two explaining that concept and how it is an example of what we talked about in class. And she, she was just delighted to do that because, you know, number one, she was so used to like many students being passive learners being these what you call knowledge buckets. And, um, she was really excited because it was the opportunity for her to contribute, right?
Her own knowledge, her own lived experience and to the OER. And you can’t do that with a traditional textbook. It’s, it’s, yeah, you just can’t, you can’t do it. And so I think that’s another, I guess you could take advantage of OER using OER, you really inviting students into this content creation process and validating that their knowledge is also reliable.
Sara: So how did you first learn about OER and you know, what was your experience with it when you first learned about it?
Jasmine: Yeah, so I first learned about back in 2015 I believe that was, um, and at that point in time I was teaching a class that I really, really liked, but I just felt that the textbook, it wasn’t a good use of my students’ time or money and I just felt like it was kind of like a push and plug type of situation. I really wasn’t invested in the, in the course in the sense of I didn’t feel like the course was my own, if that makes any sense. And, uh, the textbook that we were using was an outrageous amount of money. And so, you know, personally as well, the reason why I was interested in OERs because you know, I’m not that far removed from the college experience. I’m still only in my thirties. And I vividly remember, um, you know, struggling with textbook cost and knowing and realizing the academic impact, right? That had on me, you know, the fact that I didn’t have access to a textbook, you know, the first three, four weeks of the semester, it affected my ability to study for the upcoming exam, the first exam, the first quiz and what have you. So I went into OER, I was introduced to OER for both very personal and professional reasons and um, heard about a grant program at Ohio state called the affordable learning exchange that basically seeks to incentivize faculty to either create or adopt OER.
And they explained OER to me as I did, you know, just now that it’s not just free, it’s also the permissions pleat piece that’s granted by creative commons license that’s like, Oh, this is, this is really cool. Um, but the way that it was framed was a textbook issue. Right. Um, and I had no idea after the fact that I created this textbook that it’s so much more to that when we’re talking about OER, it’s not just replacing an OER with or a traditional textbook, excuse me, with an OER. It’s, you know, how can we as well make sure that our OER content is inclusive, that it’s ADA compliant. There’s so many different variables that goes into this. And so I applied for the grant and received it and then went through this really renovation process, I guess you can say of my course. So the ALX program teams up with the, um, university Institute of teaching and learning at Ohio State.
I did a whole course redesign because once you start changing your course materials in the classroom, it kind of has this, this ripple effect. And, um, it was a really great opportunity because I was not in that position, which I had, you know, traditionally had been where I was designing my course based upon the textbook. I made that textbook adapt to what I wanted my students to get out of that classroom experience. And so it was a very laborious process. I’m not a lie, uh, but luckily at the university there was a lot of infrastructure in place. So I just mentioned that we had, uh, partnered up with UITs, the teaching and learning center there. Uh, we teamed up with the office of distance education at e-learning that’s called odd ode, excuse me, there at the university and a couple of other partners, libraries.
Of course, I had my own copyright librarian and my own, I put that in quotes as well. And so we all kind of had, you know, all hands on deck, so to speak. And, um, they took me through this process of revamping my course, you know, writing the materials. So I officially started to write the textbook, um, in may of 2016 and finished just before the semester started, fall of 2016. So we’re talking about August. And I literally committed pretty much every single weekday of the summer writing chapters of the textbook, hiring an editor with, you know, the grants that I, the grant money I received, making sure that it was, you know, reviewed by colleagues. And what have you, because quality matters.
Sara: And that is a huge, I guess you can say barrier that we’re seeing in terms of when we talk about OER, the biggest concern with faculty members is quality, right?
Jasmine: Because when you mentioned anything is free, you automatically think, Oh that’s, that’s bad, that’s bad. Well, I’ve, I’ve bought a lot of name brand shoes for instance, that have only lasted me so many, so many years. But getting back to OER, I mean, it was a wonderful experience. It made me more intentional about my pedagogy. I couldn’t just rely on the ancillary materials that were given to me from the instructor prior who taught this class. You know, I was really invested in that classroom experience and it completely changed my outlook in terms of my role in the classroom and also my students’ role in the classroom.
Sara: So you mentioned your student’s role and I wonder why, it sounds like you’ve been using this book for a while now. Um, what has the feedback been from your students in terms of not using a traditional quote unquote traditional, you know, you pay for the textbook but an OER, how do they feel about it?
Jasmine: They love it. I think it was the first semester that I introduced the textbook and I told them that it was free. They literally, I heard, a sigh of relief. And I even feel like one semester might’ve been the next one after fall 2016. Uh, there was an applause when I said, you guys don’t have to pay for the textbook because it’s such a burden. It’s such a, a stress and a form of anxiety or a source of anxiety for a lot of students. Um, so yeah, obviously students are gonna latch onto the fact that it’s free, but when they actually engaged in the material, they thought, Oh wow. The examples that are provided here are really relevant to our experience to, you know, what’s going on in pop culture, for instance. And they liked the fact that there is an extra credit opportunity if they want to, to write, you know, um, a description of their own example that helps illustrate a class concept and put that into the textbook.
They really, really like that. Um, and, and they like how straight forward it is. Now, not all OERs are like that, but since I’m in communication, um, specifically PR and journalism, we’re all about getting to the point. And so they, they like that it’s engaging, but yet, you know, it’s, it’s to the point and they love a couple of students. Let me tell you, gen Z, they’re, they’re on it in the sense of they will known as whether or not materials are inclusive and diverse in terms of the examples that they include in the textbook or that you show in your classroom. I know I’ve talked about examples a lot, you know, during this time, but that, that matters a lot to students. And they notice in the textbook that I created, that I was using using culturally relevant examples, culturally diverse examples. And I think that definitely enhanced their learning experience as well.
Sara: And so we’ve talked about the student impact. What about other faculty from other institutions? Um, I know you talked about peer review. Have you heard back from other people who maybe have adopted or adapted or even added on or remixed your, your work?
Jasmine: Yeah, so there are, there are a few folks who are using the textbook, um, one in Canada, uh, believe it or not, and she’s taken out some of the more American examples that I’ve used in the textbook. Um, and put in more Canadian examples. I’m not sure how exactly she’s doing that to be honest with you, but she said she has, um, there was a professor at Clemson university who used the OER that I created and combined it with another OER. But again, I’m not sure tangibly what that, that looked like.
So it seems like there are a lot of remix projects that are coming out of the OER that I, um, created. But, uh, kind of the same feedback in terms of, uh, they like that they’re culturally relevant and diverse examples of the textbook. They also like that it’s, it’s a good foundation or basic, I guess you can say introduction to that topic that I was, um, referring to her writing about in the textbook. And they also really liked the platform that I created it in, which is called Pressbooks. And Pressbooks is pretty easy to use. It’s, it’s powered by WordPress and most people for the most part, um, have no trouble with, with WordPress. But, and then of course they said that the students love or their students love the fact that it’s, it’s free, you know, so, but it’s, it’s not just that component.
It’s also like a relief because they, everyone’s starting on the same playing field. Students notice that and, and again, this might be too much of a tangent, but I do wonder what we’re telling our students or what kind of message we’re sending to our students psychologically when we’re assigning a $200 textbook. What kind of invisible boundaries and barriers are recreating in our classroom from day one and with OER from some of the other instructors who’ve used my OER, they like the fact that those barriers, or at least the ones that I just refer to are not there, you know?
Sara: And what about ancillary materials? One of the big barriers I hear about for OER is, okay, it’s one thing to like adapt or borrow someone else’s OER if you’re not going to create one yourself. But then what about all those things like quizzes and PowerPoints and all that jazz that comes with, you know, the textbook from a traditional publisher who will kind of throw at you all the bells and whistles. What kinds of materials do you use when you teach? And, do you share those with other people who are using your textbook?
Jasmine: Yeah. Yeah. So I, I have not shared those. So I do create my own materials that’s very, very, um, tailored to the specific class that I teach. But I, I’m more than willing to, and in fact, that’s something that I’m thinking about this upcoming summer, creating an open course where I kind of upload all of my PowerPoints and quizzes so that people can use it so that they can, um, use the materials in conjunction with the textbook. That’s what I’m trying to say. And then, um, there was another thing you had asked about, Oh shoot, I forgot. Um, quizzes. Oh, yes, yes, yes. Um, so it also really depends upon the, the field unfortunately. And the reason why I say that is because a lot of folks who were in the STEM departments, you know, math and science, they’re really relying a lot of the homework packets.
Now I know, for example, OpenStax they do have a great deal of ancillary materials, but that’s just one type of OER. Um, and I think that’s where the traditional publishers are kind of still, uh, they still have their, their hold on faculty. Um, but really interesting story that kind of illustrates the point that I’m going to make just now. So I think this is last semester. The semester before, I had a colleague whose office is right next to mine and I was overhearing her lunch meeting with a major publisher. I’m not going to mention who they are, but um, I just noticed the way that they were wining and dining her, they gave her like two lunches or something ridiculous like that. And during their conversation I noticed that they were marketing convenience to her. They weren’t trying to make her a better educator.
So for those who are really concerned about the ancillary materials and what have you, I, I get it. I teach four writing classes. That’s a lot. But at the same time, I guess if you’re in the, in the market to, um, make your job more convenient. I mean, I can’t really argue against that to be honest with you. But if you’re in the market or in the, um, the field to be a better educator, OER truly is the way they’re traditional publishers are not in the, in the business of trying to enhance our pedagogy. You know, they just want to make our lives easier because we’re already, you know, we’re already committed to do so many things. And so we are definitely working on that in the OER landscape in terms of providing more ancillary materials. Um, there are some institutions that are providing funding for faculty members to create homework packets and, and quizzes and what have you.
That can go in conjunction with the OERs that we’re seeing a pop up and an increasing amount, I must say. So it’s, it’s still something that we’re seeing increase a lot now. Is that at the level as traditional publishers? Unfortunately, no, but they have vastly different resources than what you know, some of these institutions have. But we’re definitely, um, taking a look at that and creating those resources.
Sara: And I want to go back to a point you made earlier about inclusive access because I know there’s a lot of buzz around inclusive access. And I know from the student perspective, they think, Oh, well it’s great because I pay one fee and I get access to all my textbooks and they’re cheaper. Um, can you, can you give a few counterpoints to that?
Jasmine: Yeah. I again, I wish people could see me. Inclusive access is in quotes.
Well, number one that really limits faculty choice. Um, again, it kind of renders the faculty member as a babysitter in the classroom as opposed to this, you know, uh, to the, to the, uh, faculty member. And then in terms from the student perspective, I mean, again, you just, you can’t access that material beyond that semester. And I’ve had students who have asked me, you know, or who are told me, excuse me, using my OER, they’re able to refer back to it. And it helped a lot, you know, with some of their other classes. And there’s actually a recent, um, report from US PIRG, public interest research group, who studied a lot of what we’re seeing in inclusive access and they found some pretty troubling results. I think they, uh, looked at, I believe it was, 51 different contracts at 31 institutions that impacted over 700,000 students and actually found that students aren’t saving as much money as, as, as you would think.
And in fact in some of these contracts, uh, they can decrease the discounts that they market at any point in time. Um, and that, and I think 42% of those contracts, there cannot be any publicity about a contract that’s taking place at the university. Yeah. So that is interesting in a sense of now if I’m in student government, I can’t sound the alarm to my student body that, Hey, did you know that the universe, Illinois has this huge contract with Cengage and it’s actually not putting us at a financial advantage. It could be long term putting it at a financial disadvantage. So, you know, there’s a lot of issues going on there and not to mention student data privacy as well, which is a whole other episode in and of itself. So I, I would say it’s, it’s not inclusive, right? Because we have these pay walls and not only that, it goes back to what kind of stories are being centered in these textbooks.
And it really kind of, um, illustrates that there’s almost this weird monopoly that some of these publishers are trying to have on universities. So yeah, it’s interesting because I, when I talk to students that are always concerned about the faculty members selling quote unquote selling their own book and profit, but really they should be concerned about the publishers kind of just wining and dining faculty and trying to market really expensive products to the faculty because that’s actually the problem. The other problem that I recognize is that the chain of supply and demand does not work. No. Because the person deciding how much a textbook should cost is not the person who bears the costs. Absolutely. And so unfortunately a lot of faculty don’t actually understand how expensive their textbook is and don’t, and maybe aren’t even aware of the struggles of their students. The personal struggle.
Yeah. I mean I’m, I’m still kind of in the minority in the sense of I’m the upcoming faculty population. The millennial professors, if you will. Um, but a lot of the main faculty population went to college back in the, in in, no offense in the nineties and even eighties were textbooks yet, you know, some of them might’ve been expensive, but it’s not as much of an issue as we’re seeing right now. I mean, in the past decade alone, a textbook prices have increased over 90% in the last decade. And if you go back to 1977, it’s increased 1000%. You know, so it’s, it’s definitely a different game that we’re talking about here.
Sara: Yeah, I think so as well. And so I appreciate the fact that you wrote an OER and that you’re so passionate about it and you spread the word and thanks so much for taking the time to talk about it with me.
And hopefully my listeners are going to check out your book. I’ll put a link to it.
Jasmine: Yeah. And the episode and um, hopefully we’ll have some, some more folks who are willing to engage with OER and maybe adapt or adopt or even create OER. I always tell people just, just take a look, you know, and I’m not the expert in your field. I can’t tell you whether or not all OERs are quality or high quality. I can only speak to my specific local situation, but it doesn’t, you know, hurt anyone just to take a look and then see from there whether or not this is truly in line with your pedagogy and what you want to accomplish in the classroom.
Sara: I think that’s fair. And that’s right. I feel the same way as the copyright librarian—I don’t know your field, but I can definitely send you to the right databases to look at these different things. And I have a great network of people where I can send a query and, and say, Hey, is there an OER on this subject? And so definitely check it out.
Jasmine: Yeah. And I don’t know if I should say this or if this is helpful to say in terms of where to find OER. Cause I think that’s another issue that we’re seeing with faculty members. So you can look and look at a variety of places. So one, um, that I like to recommend is the open textbook library. And this library is, um, fueled by the university, not fueled, but, um, backed by the university of Minnesota and they basically have a plethora, I mean a very diverse group of, of OER there. Um, also check out Oasis, which pulls not only open textbooks but, um, open courseware, um, open module. So that’s a really cool place to start as well. Uh, the Mason OER, Meta finder, that’s another place. And of course OpenStax, which is, um, uh, by rice university is also a good place to start.
Sara: Those are all my top resources that and other librarians can check those all out and you still can’t find something. There may still be a resource then sometimes it’s just because they haven’t been cataloged yet and they’re so brand new because there’s more and more OER coming out every day.
Sara: Well, thanks a lot for joining me today. It’s been a really fun conversation.
Sara: Hello, welcome to another episode of copyright chat with your host Sara Benson. Today I’m recording live in studio. Well, maybe not live since this is recorded, but we are in the studio at the undergraduate library of university of Illinois because today I have with me Melissa Ocepek an Assistant Professor from the School of Information sciences at the University of Illinois. Welcome to the show. Melissa.
Melissa: Thank you so much for having me. I’m very excited to talk about copyright today.
Sara: Well, that is what we’re going to talk about. So Melissa and I, if some of you don’t know for you listeners at home, we co-teach a class called copyright for information professionals at the school of information sciences and we are teaching it right now. In fact, we taught today.
Melissa: We did. We did. It was very fun. We had a fair use game show.
Sara: So Melissa, my first question for you is you are not a librarian, you are not a copyright person necessarily by training. How did you get into copyright?
Melissa: Well, I want to note in addition to teaching the class, we also designed it ourselves and put it together and that’s sort of I would say is how I got into copyright, which is that I’ve always had an appreciation for the law. I’ve always been a bit of a law nerd, a bit of a Supreme court nerd. And so when I started teaching here at the high school at the University of Illinois I was teaching a unit on intellectual property within one of the required courses called libraries, information and society. And through that and through talking to the students, a lot of them got really excited about the content, but there wasn’t another space that could tell them to learn more.
A lot of other topics I say, Oh, take this other class where you’ll get a deep education in this particular topic. And since it did not exist for copyright, I talked to the administration about why that was and if there was an opportunity to create a course and it seemed that there was, and so it sort of started just as an idea. I then met luckily met Sara and together we sort of figured out what would be the best approach and making, not a law course, not a law school course, but a course about copyright, about making copyright accessible for a librarian information science student audience.
Sara: Right. So we, we designed that course a few years ago we’ve taught, this is our fifth iteration is that right?
Melissa: I think this is the fourth.
Sara: Fourth, okay. Our fourth iteration, and this is the first time that we’ve taught a full semester length course. It’s been eight weeks up until now. Give me some perspective on, you know, your thoughts of the course as it has developed over time.
Melissa: Well, what I think is great about the course is that we started out just with sort of some very basic ideas of what is copyright, what is section 108, how can we think about library librarians, education, fair use, sort of the, the real basic, what you’d want. Someone in an educational context understands copyright. And from there we’ve really expanded it and I think that’s been driven not only from our interest in copyright but also a lot from the student’s interest. So for example, for this semester I knew going in that one of our students, at least one of our students wanted to go into music librarian ship was really interested in music and copyright and I, we hadn’t taught that previously.
And so by talking to my students in different classes and getting to know a lot of them through the required courses, I’ve really been able to with you work to expand the course in ways that are really useful. I think that’s really one of the best parts about the course. I mean it’s called copyright for information professionals and we really try to make it as applicable as possible for our students. Yeah.
Sara: So I think one of the things that I hear back from students is that, you know, this is one of the things that I can actually go out and apply cause we have them doing, you know, this week they’re working on a fair use assessment project where they are asked whether a particular, you know, hypothetical facts situation is a fair use and to kind of justify their analysis. And that is really a useful thing to do because they might actually be in a situation as librarian where they need to make a fair use assessment.
So we try to make it applicable to them and give them skills they can use. We also engaged over the course of this class in a research endeavor where we were kind of looking at the students’ emotional response to copyright. Can you talk a little bit about that? And how that got developed?
Melissa: Sure. I actually think you sort of initiated the idea and then together we, we worked on it. So one of the things that research has told us is that copyright is something that a lot of librarians, a lot of information professionals have a lot of anxiety about. And you see this in all sorts of different studies. And honestly, if you just talk to people, I’ve spoken with copyright librarians, I’ve spoken with academic librarians. I’ve spoken with students and before the unit in my class on copyright or before they take the class, they go, Oh, that’s the law.
And I’m not a lawyer and I don’t understand that. And it’s really complicated and it’s really scary. And so for the study, what we really wanted to look at was, okay, so if we ask students before a copyright class, what are your feelings about copyright? Does it, is it scary? Does it make you anxious? And also what are the places you’d even go if someone asks you a question about copyright? Because even if you’re not the copyright librarian, right? If you’re working an information desk at an academic library, there’s a good chance someone at some point will ask you a copyright question. So we really tried to make a study in which we’d ask students before the, this was the eight week, eight week version of the course before the course and after the course to really see how a detailed sort of deep dive into copyright can help people not only understand the topic, but feel better about working with the topic. Because I think what’s, what’s really notable other than in it in comparison to other topics that we talk about in library information science education, copyright has a lot of fear because people are afraid of being sued, not necessarily personally, but they’re afraid of their institution getting sued. They’re afraid of getting in trouble. And so I’m thinking about their anxiety, I think is a really important aspect of thinking about understanding corporate education.
Sara: Yeah. And so some of our findings over the course of, I think it was three semesters, we took data where that yes, students at the beginning of the course seem to self-identify as having quite a bit of anxiety about copyright. But after the course they feel much better about it. They feel much more confident in their skills, which obviously that makes a lot of sense, but it, it kind of goes to show that we can, as copyright educators make copyright more accessible to our students. And then the other thing is that one of the other notable results was that at the beginning of the course, one of the number one sources of information that they look to when trying to find copyright information was Google. I’ll do a Google search. And as we know as information professionals, Google can turn up really great results and it can turn up really bad results and results that are not accurate.
And so after having taken the course, some of the results were much more specific and much more helpful, such as I would look at copyright law. I would look at the us copyright office website, I would do a fair use analysis under the fair use checklist. I would look at some lib guides that I know about. So, so they had a lot more tools available to them. And I guess I think going the, the results just make me feel more and more adamant I would say and militant that we should be teaching more copyright at ice schools. And I don’t think to date that we have enough copyright instruction at high schools. What do, what do you think about that, Melissa?
Melissa: I think that is dead on. I know within the iSchool that I teach at the University of Illinois, we talk a lot about curriculum. We talk about what skills employers are looking for, our students having. We talk about what skills our students tell us that they want to have before they come in, when they’re in the program and after they’ve left the program. And copyright comes up all the time. And it’s historically been a week in a course that’s required for the students. But I really think that for a large percentage of the students and in high schools, a large percentage of future librarians, future archivists, future museum curators, future information professionals, that having the option of taking a detailed course in copyright can be incredibly useful. Because I mean, you know, you talk to people that are working as archivists, people working as librarians and it’s not just fair use.
It’s not just section 108 even if you get to section 108, which is typically I would say maybe a second or third or fourth day and a copyright course or a copy or a topic that understanding that nuance is really important. And I’m going back to what you said about the anxiety. I think the more people learn about it, the more time they spend with it, the more comfortable they feel, the more that anxiety goes away. Because, you know we talk about all the, all the exceptions we talk about that they are protected as librarians and that they’re probably not going to get sued if they understand the law and if they are making reasonable assessments in their, in their work.
Sara: And last week we had a panel of experts joining us practitioners and one of them was Greg Cram from the New York public library. And I thought he said something really relevant and kind of illuminating about the subject of fear and engaging with the law and just like shutting down because a lot of students would say, you know, I hear a copyright question are I need to make some sort of copper assessment? And I just shy away from it. I just say, no, I’m not going to do that. I’ll just, I just won’t use that item or I just won’t do that thing. And one thing Greg said was, you know, every time it rains, we don’t shut the doors to the library. And that’s, that carries a legal risk. People could slip and fall and they could Sue the library. But we don’t shut our doors.
And it’s the same thing. It’s just that with copyright, I think that there’s some added confusion because people just don’t understand it, right? With rain on the floor, we understand what the risk is. It’s a very clear thing and we know how to handle it and we know how to mitigate risk, right? We can go and we can mop the floor and we can put up a sign that says wet floor and we could do things. But the interesting thing is with copyright you can do those things as well. And so you know, you can mitigate risk, you can understand the risk, you can accept understandable risk that is, is acceptable risk, a level of risk that is a reasonable, and it’s just a matter of understanding the thing. And I think that’s the difference, right between the rain on the floor, which people understand and the risk and copyright, which they just feel like it’s too difficult to understand.
And what we try to do in our courses to make it accessible, make it understandable and make it fun. You know, I, I think that learning can always be fun no matter what the topic is. And so we try to keep our course lively and interesting and hands on and engaging and all the things that keep the students excited about copyright and we’ve had some success with, with students kind of following up. I mean I guess one of the questions I have, and I’ve asked this to other folks, but I’ll ask you Melissa, is what’s your perspective on like, do you need to be a lawyer to, you know, understand copyright? Cause I think that’s one of the common misconceptions. Like, Oh well I need a JD if I’m going to understand this.
Melissa: This is something we, we teach, we talk to our students about that they can be information professionals, right? They can have master’s degrees in library information science or information management or whatever your degree is called and understand copyright and understand how it affects their particular job, their particular law, their particular role. What I liked so much about what Greg said that you just mentioned is that the New York public library’s goal is to have their doors open, to have their collections be accessible. My goal as an educator of future librarians, future archivists is to make sure that they know how to make their material accessible, whether that’s through digitization or that sort of displays and copyright effects, all of that. And so I’d feel much better knowing that I’m empowering students to put up that display and understand the limited risk, but the, but the, the small amount of risk associated with that, if the copyright ownership of a particular item is not clear to them. And so that’s what we try to do. I mean, we talked about this I think just last or two weeks ago in our class why displays are a fair use and what courts have said about displays and fair use. And so I think that’s so important is that we can give students real world examples that yes, we talk about the law. Yes, we read, we read cases, but we really allow them to see how it’s applicable in their specific information space.
Sara: One of the things that I really want my students to take away in terms of resources is the code of best practices for fair use in academic and research libraries. A lot of them are going to be working in libraries and, and some of the principles are our work in public spaces, public library spaces as well. And yeah, one of the principles says, you know, we can’t say everything, like every exhibit is a fair use. We can’t say every this, every that. But, but with the best practices you can understand what the general consensus is among your peers. And I think that really helps you to go a long way to say, okay, you know, this risk has been accepted widely from my peers and therefore I feel comfortable doing this thing. And to kind of be able to say and site an actual document for your understanding.
Melissa: And can I just say that I think one of the innovations of our course is that we have Sara Benson, copyright librarian, JD, other letters as well. But one of the notable ones, JD and Melissa was about PhD in information science to sort of give two different sides of the same coin, right? That we have our different expertise and we bring them to the classroom. But the idea being that a wide variety of people care about copyright, understand copyright, think about copyright deeply and that it’s about the topic. It’s not about the background as much. Yeah. And I, I have close friends who are copyright librarians who are not lawyers. And I, I think that I try to encourage the students, you know, one of the students just asked me after class, you know, do you think I could be a copyright librarian?
You know, I don’t have a JD. And my response is anyone can be a copyright laborer. And what you need to have is a real passion for learning about copyright caring about the subject that goes a long way and not being afraid to put in the time to really deeply analyze these issues. Because one of the biggest issues I think for copyright folks is it’s really easy to gloss over issues. Like if you start saying, Oh, every exhibit is a fair use or every, every educational use is fair use or whatever, you start saying every, if you started every year, you’re going to be wrong. Right? It’s just, that’s not how copyright law works. But I think that if you’re willing to dig into the details and to also understand where your limitations are, where you need to do some further research because you are going to have quite a few issues where it’s something you can’t answer off the top of your head.
But if you’re comfortable with that and you’re comfortable with ambiguity and like, you know, it’s going to be different for each scenario and you’re willing to put in the time and effort anybody can really do this job. It’s just a matter of not everybody likes the topic. Not everybody wants to focus on it. And I also think that the beauty of the court, another beauty of our course is that it’s for those folks who want to be copyright librarians. But I expect that most of our students do not want to be copyright librarians, but they want to be really great archivists or they want to be really great music librarians or they want to be really great reference service librarians or data management professionals, right? Whatever their ultimate career goal is this course can help them because they’re going to encounter some copyright issues.
And whether they’re the primary person dealing with the issues or they just have that baseline of understanding that’s still gonna be very useful to them. And I think that’s the beauty of the course, cause I don’t want, I don’t want everyone in the course to be a copyright professional because you know, that’s not the goal. The goal is for us to get to bring everyone to a level of copyright knowledge where they’re ready to tackle an issue or to work with someone else. And also to, to just identify copyright issues, right? To know, Oh this is a copyright issue. Cause that’s another thing. It’s like some people don’t even know they have a copyright issue, right? They, they’ve glossed over it to a level that they don’t even know it’s an issue. And so I don’t think our students will ever have that problem. They may not have all the answers, but they know when an issue arises.
Sara: And that’s one of the main things we teach in law school is like issue analysis. Like is this a copyright thing? Oh it is. Okay, well now I know where to start. And I also just think it’s so, it aligns so much with other things that we teach in the high school. Other things that we teach information professionals like how to do research, how to think deeply and critically about a particular topic, how to analyze a situation. And so that’s something that I think is somewhat appealing to students once they get past their anxiety about copyright, that it is such a dynamic issue that it’s, it’s changing and that they can do the research, they can learn, the material is accessible to them in part because of our class, but also that we sort of show them, like you said, I’m in the study that we did at Google, went from the first search to one of the later searches in the pre and post interview because one of the things we do in the classes, we say, look at all these resources that are available to you as a librarian and you can understand them with this class.
And without any sort of legal or law background. Although some of our students do have law backgrounds, a few of them do. But even the ones with the law backgrounds don’t necessarily want to pursue copyright. They might want to be a law librarian and it’s also really great to have some copyright understanding for the law library. Just one final note. I would say that we’re going to share our syllabus with this podcast. So if you’re just listening and you want to see the syllabus, it will be attached on the website from the scholarly communication and publishing link and it has a creative commons license on it, creative co creative comments, attribution license. So we encourage you if you work at an ice school to build upon our, our work and to use it to create your own courses and build upon the reading lists we have. And of course you attribute us, but then after that, you know, make derivatives at will, you know, change it up. And, and let us know if you’re using it. We would love to hear about your experiences with teaching copyright and we hope that we start the impetus for more and more copyright classes at, at library schools because it’s very, it’s very important that we spread this, this message that copyright is not inaccessible. It’s not scary. It’s something that we can all engage with.
Melissa: Yeah, and just adding on to that, because I completely agree. I would love to hear people’s experiences. I think it’s been so fruitful for me. I’m an Assistant Professor. I’m still pretty new in my career, but developing this course, teaching copyright is so so worthwhile because I get to see that engagement with the students. I get to see how applicable it is, not all the things that I teach have that level of applicability and I can see how excited they get and I think that more students and more places would benefit from this type of education.
Also, I’m very excited about sharing our syllabus. I also hope that soon Sara and I will take our messages to maybe some library and information science conferences we’re working on that, that there’s, there’s just a time element there, but we really want to continue this conversation and really encourage others to find a way, even if they don’t, even if they aren’t a corporate librarian necessarily or if they’re not a copyright experts, to find ways to bring experts in to make sure their students have access to this material and understand how approachable it truly can be.
Sara: So thanks for joining me today, Melissa. This was a fun conversation and hopefully our listeners got something out of it as well. And, please listeners, please do take a look at the syllabus.
Melissa: Yes, please do. And a thank you, Sara, for asking me.
Sara: Hello and welcome to another episode of Copyright Chat. Today I am visiting with Allison Estell, the associate director for access and organization from Wentworth Institute of Technology. Allison, welcome to the show.
Allison: Hi Sara. Thank you so much for having me.
Sara: So I wanted to have you on the show because I am so interested in some of your research and I noticed that through your title you don’t necessarily have a copyright related title or job description. How did you get interested in copyright?
Allison: Well, that’s true. It’s not in my title. It hasn’t really been in any of my titles, but it kind of creeps into my job descriptions because I have a law degree. Now that said, I did not actually study any intellectual property or copyright while I was in law school. But I think once I’ve gotten to my first library job, the credential itself was enough for people to say, “Okay, let’s send these questions and projects Allison’s way.”
Allison: So, and it’s really interesting so that was a good thing then when I was tasked with it, I found it to be also interesting. So yeah, I found myself just thrown into a role that I didn’t really have a background in or education in specifically, and I just took what I knew from law school and learning how to learn and I dug in and I did have some resources along the way. In my first library job, I was actually a library student as well in a library assistant role. And so I was able to take a copyright course from, actually not, I graduated from Simmons, but I took a course through our wise consortium was from San Jose State and it gave me some of the basics to get me started. But then a lot of the projects and questions that ensued, I had to kind of supplement on my own.
Sara: And you talk about supplementing on your own. And I know in the recent book that was edited by myself, Copyright Conversations, you wrote about kind of self learning copyright. And I found that chapter one of the most, I think useful chapters in the book because so many people are in that boat, right? They’re just asked what’s the answer to this question? And they have no background. So can you talk a little bit about developing that chapter?
Allison: Oh absolutely. So as I mentioned, I’d been kind of thrown into doing some copyright here and there and I even had found that people in my other world, I’m also a musician and I would play in some orchestras and people would know, oh, this person is a librarian and also she has a law degree. I bet she can help me find legal information. And so in addition to questions I was getting in the course of my job, people outside of work were also asking me to help them with copyright questions, which again, I always phrase everything with this is not legal advice. I’m just providing legal information.
Allison: But especially because I don’t work in the music library and I’m not really up on either sound recording issues or a lot of the other things that are specific to music, I found myself not having a ton of time but wanting to help and really talking people through, okay, I would have to learn about this myself anyway right now. Let’s learn it together or let me point you to the right resources where you can learn about this and where and give you some of the critical thinking and kind of mindset skills that you would need to make a decision. Because ultimately the copyright questions that people bring to us as librarians are ultimately going to be the decision is ultimately our patrons decision to make. We’re just giving the information for other people to make their own determinations, decide how much, how they want to handle a situation and so on.
Allison: So I found myself advising other people, kind of sharing my own experience. And then when I saw that you had made a call for proposals, I thought, wow, I wonder if I should talk a little bit about what it’s been like to try to learn in the moment really, really quickly with, I had kind of been learning copyright on my own, but also thinking about self directed learning. And that was another little point that my research was starting to take on towards some of the educational theory and it kind of paired together at that moment in time as a way to investigate whether there was a way to describe what I had been doing and what I had been advising other people to do. So I found it really interesting and useful intellectual exercise for me to try to get that down on paper.
Sara: Now you mentioned that you have a law degree. I do as well. Do you think that copyright is accessible to non-lawyers as who are librarians?
Allison: I think that it absolutely is. I know lots and lots of librarians who are thrown into this role without a law degree, but one of the things I tried to incorporate into my chapter was this kind of almost like a window into the world of what you learn in law school that might be applicable to this study. Again, I didn’t study this content in law school, but through the course of a legal education as you know, you kind of develop these analytical skills and this mindset or perspective that the law is this changing thing. It’s so dynamic. All the time, things are changing with the law and I mean especially in copyright, not only is the law changing but then the facts of any given situation might make a really big difference. So that’s something that I know is true in copyright but because it’s true, excuse me, it’s true in almost all areas of law.
Allison: I mean some things are heavily regulated and give you lots of kind of interpretive guidance and other things, you’re just out there trying to figure it out in the moment how to apply it and that’s why there’s lots of lawyers and judges and people to help us out. That said, the copyright law has tried to identify certain themes and expectations with library exceptions or the biggest thing we see in libraries is fair use anyway as a legal concept that I think are accessible to people once they have put the right mindset cap on or whatever, like don’t think you can master it all in advance. Try to figure out who your good resources are.
Allison: I mean, I think it encroaches upon our work and informs our work so much that I think that it’s a good thing it’s somewhat accessible and nobody’s being asked to provide the legal advice. Again, nobody’s being asked to practice law. They’re just being asked to provide legal information, which is the same as if somebody comes with an engineering question or a humanities question. You don’t need to be a subject specialist if you’re thinking with your librarian cap on. You’re trying to just help people find the information they need to make their own decisions.
Sara: That’s true. There are also a lot of decisions that we make as librarians on a daily basis to apply fair use to our own work where we do get to make those “legal decisions”, but for our own purposes, right?
Allison: Right. In a way, I really feel like we’re making a judgment as a user of information. If you think about copyright as having, people create something and then the creator has some rights in what they’ve created, to the thing they’ve created. But then there’s also these rights to use this that the constitution laid out so that scientific progress would occur and arts and progress in all of the intellectual endeavors of human beings. And so it’s meant to balance the rights that a creator would have and a user would have. And since we’re all, we’re often creating, but we’re also always using, so the way that the lawyer piece of it would come in is just trying to as a guide or advisor to the user or the creator, I mean the real relationship between, with the information is between the creator and the user. And the rest of it is more of a support. So yes, we’re active users all the time and we are constantly making decisions about hopefully what we think is fair is also kind of considered to be fair in the best practices of our communities.
Sara: Yeah, I think that’s right. I mean, we’re not acting as “lawyers” when we decide I’m going to create this exhibit and it’s fair use, but we’re acting as users, as any other user would as a patron would. But we are then able to hopefully make a fair use determination using our good judgment. And I think that that is where I try to empower librarians to feel that they can actually engage with fair use in their daily work and not feel that they need to shy away from it.
Allison: Right. I mean, if you think about you come up to a red light in the middle of the night and no one’s around, and when you decide whether to stay at the red light or make a right on red, even though there’s a sign, you’re not acting as a lawyer who’s assessing this, you’re just in the moment, you’re assessing your own risk as a driver, not as a lawyer or a policeman or anything else if you, I’m not saying whether you take the right turn or not on red, but you’re making your own assessment there. And I think it’s interesting to think about too. One of the things that struck me early on as I was thinking about learning about copyright and thinking about specifically fair use, which is just one portion of all of our copyright laws, is how much even the legal cases are governed by the community and best practices that exist in trying to determine what is reasonable and what people are doing.
Allison: Judges really do look at what communities of people are doing and that’s why we have a lot of the ARL like best practices and fair use and so on because it’s a shared community of what do we need to interpret this together. We can’t, we have to have some things we can agree upon and if we agree upon them, it’s more likely that a judge will think any one person doing one thing is reasonable because it’s kind of how like the way the tide is turning with this issue. There are always going to be a range of responses to a particular dilemma you’re facing and you can be more conservative or more liberal about it.
Allison: And people who are more activist for user’s rights might try to move best practices in a more user-focused way and people who are more conservative about it might end up making decisions not to use information that they might have the right to use, but just to be sure that they’re not encroaching on creators rights. So there’s a whole range. That’s the other thing is there’s not really a right answer. It’s more like a range of things and which can be really uncomfortable when you’re trying to advise somebody how to gather information and how they might want to use it. Again, that’s again why it’s good you’re not giving legal advice. It’s just there’s a range of potentially totally fine ways to respond to something and it has to do with individual’s comfort level and how they choose to use the information to make decisions in their lives.
Sara: Yeah, I think that’s a great point. And I raised that the other day with someone who said, “Well, do you advise people to exercise fair use?” And I said, “I want people to feel comfortable exercising fair use, but that’s a personal decision and I’m not going to force anyone to do something.” First of all, I’m not their lawyer. And second of all, this is a personal risk decision and some people are just risk averse and they’re going to pay for every single license they can find whether they need to or not. And if there’s no license, they’re going to go and find somebody and ask permission and get it in writing and that’s just how they’re going to operate. And I’m not going to tell them that that approach is wrong. That’s not the approach I would take, but I think it is very individualized in terms of how people feel about their risk assessment.
Allison: I absolutely agree and I think that probably would transfer as well to help people choose to provide the information in the first place. There might be people who are choosing, I think people should take a good look at where they fall on that spectrum as a user and whether that bias might be coming through in the way that they’re providing the information to people. It sounds like you’re really trying to be very agnostic about what to do and very neutral to really leave the decision making power where it really should be, which is with the actual user. But it can be, I’m incredibly risk averse. And so it’s really hard for me to admit that something might be okay to do. In fact, actually this is so funny.
Allison: Last night I got a phone call from someone, a musician I know and a musician we know in common was like, “Oh you should call Allison.” And I’m thinking why, why, it’s going to stress me out so much. But it was a really interesting question about a piece that’s in the public domain originally, like the manuscript, a musical piece. And it’s in the public domain in its country of origin, even the published edition of it, but it’s not in the public domain here, but the performance is going to take place in the other country and somebody’s created a new edition and it says it’s the public domain, but how can we know and oh well if they really based it on the original piece, there’s just a whole big, all of a sudden I found myself in somebody else’s world again of I’m pretty darn sure this is okay, but and I mean I’m like 99.99999% based on the all the other facts I won’t get into right now that I’m so sure this is okay, but I could not bring myself to unequivocally say that it was okay.
Allison: Because really what they wanted me to do anyway, luckily, was to let to kind of reinforce their own thinking, here’s what I’m thinking. Is this a reasonable stance to take? And it was really hard. I have to look at my own bias. I should’ve probably been a little bit more like, yeah, that’s totally fine. But because I’m so risk averse, I kept hedging. I have found myself, I was kind of cringing, can’t you just admit that this whole thing, it’s a public domain thing, but based on another thing that’s in the public domain, I just really don’t want to take the responsibility for somebody else’s actions and that’s something I need to look at.
Sara: Yeah. I mean at the end of the day, that’s their decision. And because you’re not their lawyer, you shouldn’t be taking on the any kind of risk there. But intellectual exercises are always fun, right, to say what would happen if this, what would happen if that, but right. I mean I always, when I teach to the high school students, I do emphasize to them that we do a lot of actually interpreting fair use and I give them examples and I say that’s fine to do for your own uses because you’re then the user. But when someone else is trying to use it and they want your opinion, that’s when you can start getting into the uncomfortable territory. And I think it’s more likely for us as lawyers to get into that uncomfortable territory because people want us to give legal advice.
Sara: So yeah, whether it’s in our professional lives or otherwise, because I get a lot of questions outside of work as well. And I actually am not as risk averse in my own personal life, but I’m definitely not comfortable giving out legal advice because I’m not practicing as a lawyer, so I have the Texas bar and the Illinois bar, but neither one of them are active. I’m not, because I don’t want to have to deal with all the continuing legal education and I’m not required to practice law in my current position. So it’s a little easier to just say, “Hey, I’m not even practicing so I can’t give you any advice.”
Allison: Yeah, I mean it’s true. And I will say that also, I’m also a perfectionist. So you magnify that. I want to be right on top of the fact that I also don’t want to, I think it’s interesting what you bring up the idea of the ethics of this too as a lawyer because I’m also a member of the Massachusetts bar, but an inactive member like you and I’m not, I do not want to be practicing law. I don’t have the insurance to back it up, you know?
Allison: But also I think, so I have this ethical obligation to lay out what the parameters are of my conversation with somebody about this. But I also think that because especially in higher education, the library is where people are going for help. So often I owe it to my colleagues as well and anybody who’s, to not over-represent what I’m able to do in case people see another librarian and think, well Allison was able to give me this kind of information with this kind of certainty. How come these other people can’t do this? Or I mean I think it’s really important absolutely to realize the role that we’re functioning in, like you said. I 100% agree with you on that.
Sara: But also that brings up another part of your research, which is, as you noted, a lot of folks are coming to the library for copyright information, all kinds of information, but increasingly copyright information. And I believe you were part of a survey of the United States, I think librarians and their knowledge of copyright. Can you talk a little bit about your findings there?
Allison: Sure, absolutely. Well, over the course of doing my library research and study in graduate school, I ended up connecting with a professor where she had connected with colleagues from around the world who were doing a copyright study about librarians’ self awareness of copyright and self knowledge and assessment of their copyright internationally. And they asked her, Laura Saunders, to conduct the American iteration, the US iteration of this study. And she said, “Well, Allison is, I’m learning about copyright through Allison’s independent projects here. Why don’t we work together?” So we started while I was still in school and then we since then we have continued to collaborate on that as well as a study of LIS, library and information science students’ self awareness of copyright as well. I mean it’s a self assessment of their knowledge and awareness.
Allison: So this was really put together by colleagues in, I think, I’m trying to think where the original three people were from. Perhaps it was, we have Croatia and I’m trying to think, I don’t want to miscount the original three people. I’m kind of losing track of who started the initiative, but we had colleagues in Bulgaria, Croatia, Finland, France. I have a list so I don’t forget anybody. Hungary, Lithuania, Mexico, Norway, Portugal, Romania, Turkey, and the United Kingdom as well as Laura and me from the United States. And so the survey was developed in Europe and had been already run in a couple of the countries and we had to use the questions as they existed for the most part. We could make a few edits for language and so on. But what was really great about it is that we were trying to get to librarians and academic and public libraries from across the United States to look at their own perceptions of their own familiarity with and comfort with copyright concepts.
Allison: And so this was back in 2014 that we first ran the survey. It took us a while to gather everything and also then write it and get it out to the world. But we did random sampling of people across, the methodology we could talk about more later. But fundamentally we hit upon within the places it was distributed, people generally self selected to whether they were going to participate or not. 30% male, 70% female. A good number of people were over the age of 50. Many people had worked at their institution for at least 10 years. Most people had a master’s degree. So these are people who are well established professionally in their fields. And a lot of the people were in either administration or public services. And so this is just speaking about the librarians first.
Allison: Many people thought that they were at least somewhat aware of these concepts. I mean this is coming up in their work a lot. And so the thing what we couldn’t really get at was their actual knowledge. It wasn’t, we weren’t really assessing whether they were right about what they thought they knew or not, but we were assessing whether they were comfortable with various themes such as some of the things that people were most comfortable with were fair use, the public domain and again, as a kind of sister to copyright licensing is strictly speaking, these are contracts and contract law, but it feels like it’s the same thing because we’re talking about people’s intellectual property being governed by the law. And open access was another concept emerging and digitization. But then the things they were really not as clear on were some of the rights management and clearing rights and trying to get permissions and so on. Mildly familiar with, at that time, online learning. I’m sure that would be really much bigger now.
Allison: So we, in addition to asking people what concepts they were most familiar with, and I should just mention as well, all of this was pertaining to their own national copyright here, there was not as much awareness of international issues. We also asked them what their go-to resources were for trying to learn more about copyright and this is where I think librarians really need to take notice that where people are turning is to their own colleagues and to their [inaudible 00:23:02] and they’re largely turning to and some professional associations and so on. Books and articles, websites as well. But people are turning to colleagues and even when we later surveyed the students, their go-tos were librarians and LIS faculty. So it’s people really want to turn to other people for this kind of help. They’re aware of the codes, they’re aware of books and websites and articles, but it’s people that people are turning to.
Sara: Interesting. I actually did a recent study of some of my students, which we haven’t published yet. And one of the main resources my students were telling me they went to before having taken a copyright intensive course was of course Google-
Allison: Well that-
Sara: Which can, it can lead you to good resources and bad resources. Right? And so and I think that’s a common response, I’m just going to Google it. And it’s like, okay. But after having taken the course, we found that they found a lot more reliable sources. They would say, “I’m going to look at the copyright office, the United States copyright office.” I said, “Okay, that’s reliable. I don’t agree with everything that they put out, but I think it’s a reliable source of information.” I remember that study, I think talking about training. Did it talk a little bit about about training as well or am I mixing it up with something else?
Allison: You mean how people about, I’m not sure what you mean. We didn’t-
Sara: Yeah. Whether they were formally trained in copyright in their schooling or on the job.
Allison: Oh yeah. There’s probably, let me see if I can pull up my, I think I don’t have that ready at my, I don’t know if that made it into the, I’m trying to think if it made it into the paper somewhere, but a lot of people did not receive formal training on this. That’s true. But they made recommendations about the kinds of things they wanted to see, the things that they believed should be in an LIS curriculum. I mean fair use was obviously a huge, huge thing. And basically the issues in a digital age was a theme that somebody had written in very well.
Allison: And I had some nice quotes from people. One person’s was “Fair use, fair use, and fair use,” which I thought really brought that home. But they need to know, here’s a quote. “They need to know their position on copyright and how it impacts what they collect and what they want to do.” So they think people should be able to be kind of informed participants in a conversation around copyright. Creative commons licensing, the library exceptions, classroom use, those kind of came up, although we did have one respondent, “Not sure it should be covered. It can be learned on the job and via training if necessary.” So nice. Yeah. Good for that.
Sara: Okay. Well I mean I think it’s usually necessary because most people engage with copyright in some way at their job, depending on they could be in archives, they could be in preservation, they could be in digitization, they could be in even teaching and learning and reference. I mean I haven’t found an area of librarianship yet where copyright is not involved.
Allison: I agree. I think when I was trying to, I couldn’t possibly enumerate them all in the chapter, but I tried to just pick and choose some. But then you think about the things that, you can’t just base it on, oh I know you’re going to need to know about fair use and public domain and library exceptions. You know you’re going to be a reference and instruction person and needing to support people using the Teach Act for how they’re going to use information in their classrooms and online. But if you’re in a music library, you need to know a heck of a lot more about sound recordings or if you’re in a really big research institution, there’s technology transfer issues of when who owns what property, like for useful things that we want to transfer.
Allison: I mean I agree with you, the job functions as well. I mean you’ve got inter-library loan, people creating distance education materials, accessibility, and E resource management, access services and so on. Yeah, it’s really, I’m trying to think if anybody in our staff doesn’t need to know at least, doesn’t do something that they should be thinking about copyright when they’re doing it.
Sara: Yeah. I think one of the things that you mentioned earlier really stuck with me and you said, we mentioned we were able to measure their level of self confidence but not exactly what they knew. And I think it’s one thing to say, even I can say this today, I’m constantly learning something new about copyright from my colleagues, from the copyright office, from the law. And it’s changing. But even the things that are not changing, I’ll learn something new. I’ll give an example of something that I’ve learned that’s new or I knew about it, but it’s one of the things, it’s not the top of your head, which is the work made for hire distinction between the 1976 act and the 1909 act. They’re very different. And so it depends on what era you’re in, in terms of how do you measure whether it’s a work made for hire and who would be the owner of the work.
Sara: And so that’s one of the things that I learn or I remember new things. And I guess I just, that’s why I get a little bit curious about people who say, “Oh, I’m comfortable with the public domain,” because a lot of folks, and our head archivist is one who would tell me, it’s not easy to determine if something is in the public domain and he’s so right. I mean sometimes it will lead you down a rabbit trail and you’ll go down three different paths and you still are not sure. And so it’s interesting that people say that they’re confident about that because I’m not confident sometimes about whether a particular thing is in the public domain or not because it’s just such a complicated inquiry. Right?
Allison: Exactly. This thing last night, I was just thinking, well you’re using something that has been offered up with a creative commons license that is essentially the public domain. It’s just you have to just attribute the addition to this person. But suppose that person hadn’t used a manuscript that everybody is really confident is in the public domain, the composer’s actual handwriting of the time from however long ago. Suppose that person had actually made a mistake and the edition that they prepared wasn’t in the public domain at the time that they prepared this new thing they’re offering up to you for free. Whose problem is that? Is that just the creator of the edition or is that my problem as a user of his edition? I don’t know how much due diligence a person is supposed to do into something like that.
Allison: A newly published and newly introduced into the public domain thing, I don’t, this is the part where I quibbled a little bit, so maybe it wasn’t as risk averse as I was portraying myself, but I am not trying to verify what the person who created that edition, I’m not trying to verify the accuracy of their research into this, although, I mean, you can hear facts and say this is probably largely true, but even if I’m wrong about that, is it the user’s problem or is it the person who thinks they created something they can put into the public domain? How far does it flow through the liability?
Sara: What you’re saying is so true for libraries too, right? Because we have, for instance, a lot of things that we put metadata on and we try to be accurate with the right statements and we try to say if we think something’s in the public domain, hopefully we’ll label it public domain, United States. Right? But, and then the question is, what if we’re not sure, what if we are sure but we’re wrong? Right? And so we always then have to have this limitation of liability that says, okay, patrons, we are trying to do good here. Right? But we’re not responsible for everything we do and everything you might do with that work down the line. And then how much would that hold up? Right? I don’t even want to ask that question because it’s like we’re doing a good faith determination that something’s in the public domain, but that’s not an easy thing to do, especially when you have large collections. Right?
Allison: Yeah. Another thing with us, we’re just, we’re kind of a smaller shop here and we’re just starting to implement our first digital institutional repository. And one of the primary use cases is our master’s of architecture thesis, which are very image heavy and we’d like to make them available and discoverable to the public. But it’s one thing to ask someone to sign their waiver saying yeah, I’m sure everything is either my own image or I have permission for it. But yeah, it’s a big, there’s a lot to take on to think about actually putting these things out there.
Sara: Well, and a lot of things, one would hope would be fair uses and if they’re actually analyzing and contextualizing whatever they’re using in terms of transformative fair use, but that can get, that gets into the risk scenario.
Allison: Yeah. We had an international student who used a map of her home country in her thesis and her home country found out what map it was and wrote to us and wanted us to insert a different map that had different political ramifications than the map she had chosen to use. And this is her, this was just like, oh my gosh, you’re telling, this country is telling us to replace a page of her academic work. This is way above my pay grade. This is just really-
Sara: Wow that’s beyond copyright, that gets into, that’s definitely like a censorship issue.
Allison: Yeah. There’s very heavy issues that come up that you just don’t think you’re going to have to confront as a librarian. And I think that being able to kind of keep your cool and have a framework to think about these things, it’s not just having the framework, I do think it’s really important for people to kind of build up a little bit of a resource or a toolkit of some basic themes and in copyright law that they know about, some basic other resources that they would turn to, like the where are my actual information resources, are they on the web, are they people? Where’s my copyright community, where are my tools? But even within that, it’s the framing of what is your role and what do you need to tread carefully or be careful or very precise about when you’re talking about and what things should you just not even say anything about at all. Like just don’t even speak to it, just don’t even, this is not within your, you need to make a referral. It’s interesting to think about.
Sara: Well that is very true. And I think institutionally folks need to understand who the key people are in their institution and have those working relationships, whether it’s with your library Dean or your associate librarians or general counsel or all of the above. Right? Just to know where your limits are.
Allison: It’s true. And actually I’ve been working, I had been working mostly in smaller institutions that don’t have a general counsel so much as they have attorneys on retainer that you how to try to even get the ear of an attorney. I mean yes this is our person for copyright but for on a practical level, how do you get access to them to even get lawyerly type questions answered? And actually it’s funny because comparing the responses of who would you turn to or where would you turn for copyright assistance, librarians didn’t really have a high percentage that would turn to lawyers because they know we don’t always have access. But this library of students, theoretically that sounded like a great idea to them. Why not go to the people who are going to know? Except for not realizing that the resources aren’t always there to pay for it if you don’t have a general counsel or to get the access.
Sara: Well, even if you do have access to counsel, this may not be their top priority and your answer might not come for two years, so you might want to try to tackle that one locally.
Allison: That is good to know that I haven’t really been missing out that much.
Sara: Yeah. I mean we definitely collaborate, but the day to day work falls on my plate, for sure.
Allison: Yeah. Oh my God. I mean, there’s so many other things. I actually think most recently, Laura Saunders and I were presenting with people from two other institutions at the ALISE conference, the association of library and information science education or educators. I’m sorry, I forget the acronym, but we had the opportunity to have a lot of LIS faculty in the room and talking about the research that we had done, most of which is already ripe for updates. I mean there’s lots more to be done in this area. And I was going somewhere with this about this, we were surveying people. People are putting more and more copyright into their courses now, but where was I going with this that we, oh, I totally lost my train of thought. What was the last thing we were-
Sara: We were talking about having to answer the questions instead of refer them out or.
Allison: Yeah, no, it was the most recent thing that we were just saying. I feel terrible because as, oh, I know where I was. So in the discussions, we really presented our research of the various studies, but to try to get a really good conversation going, we actually poled our audience at various times to ask what their practices were, what their recommendations were, and we ended up with a great conversation at the end of the panel about, I think that when we think about LIS curriculum, we might want to think about not just copyright but also the other legal issues that are facing librarians as well. Things like the ADA, especially, accessibility issues, both physically and digitally. I think that to expand, librarians are being asked to work with the law in many different ways, not just copyright and so it’s kind of, these are some kind of affinity or kind of complimentary areas that it might make sense for us to be thinking about as well. I did eventually get there.
Sara: That’s a good point and privacy is a big issue that has come up in terms of my work before, so that’s definitely, I call these issues copyright adjacent.
Allison: Yes that’s a great way to put it.
Sara: Other duties as assigned.
Allison: Yeah, mine was covering the circulation desk this morning, but yeah, which was fun. It was good. I had a good time. I had a nice cup of coffee and some good questions. It’s true. I think it’s really, I really enjoyed, as I said, a lot of my thoughts about what I was doing in my role and how I was trying to almost learn anew every time I had a new question about copyright. They were the kind of these just generally seeds of thought that I really appreciated the chance to work through with research and context setting to be able to write the chapter that I contributed to your book. It was really helpful to me to clarify my perspective and my mindset and my thinking about this.
Allison: I kind of had this understanding of what I knew about copyright and what I didn’t know and what I was always learning fresh and kind of had started to see the patterns developing with me and when I was advising other people, the patterns I would try to continue in advising other people about how to learn about copyright. But really I think the process of trying to put it down on paper led me to this self directed learning theory that has really been so exciting for me to think about. I think a lot of learning is not just this content based, let’s master this right now, the world’s changing so fast.
Allison: It does make sense for people to think about not just information literacy and how you deal with information, but just how your literacy about your own learning and when people leave higher education they’re going to continue to have information needs of any kind, copyright or otherwise. And how people evaluate, how they even recognize a learning need, how they recognize which things they want to choose to learn about, I mean there’s so much, so many different rabbit holes you could go down with one particular question about anything, especially copyright. And so I really, I just want to thank you for the opportunity to be able to spend some time thinking about self directed learning theory and how it was perhaps complimentary to the self study of copyright.
Sara: Well that’s great. I was happy to have your chapter in the book. I think it’s really useful. I hope a lot of other people find it useful as well. Thank you so much for joining me today. I think we had a really interesting conversation that took so many different turns, but I think it ultimately is really useful to just people who are in the role of addressing copyright at their institution and folks who are interested in learning more about copyright. And so I thank you for joining me and I hope to meet you in person soon.
Allison: Thank you so much. It was a pleasure and a privilege and I also agree it would be great to meet you in person.
Sara: Copyright Chat is a podcast dedicated to discussing important copyright matters. Host Sara Benson, the copyright librarian from the University of Illinois, converses with experts from across the globe to engage the public with rights issues relevant their daily lives.
Sara: Welcome to a remotely recorded episode of Copyright Chat. Today I am speaking with Josh Bolick. Josh is the Scholarly Communications Librarian from the University Libraries at the University of Kansas. Welcome to the program Josh. Thanks a lot for being here! And today I wanted to focus on your article that has been getting quite a bit of buzz lately. I’ve heard it referred to as the “Bolick Method.” I think there are other ways that people are referring to it as well, but you’ve become quite famous in the open access movement for this article that you wrote and I wanted you to talk a little bit about it. Yeah, I’ll let you I’ll let you take it from there.
Josh: Yeah, thank you. Yeah, it’s remarkable to me that, there, I have a method. I think I’ve also seen “strategy” or “maneuver” is the other one—”The Bolick Maneuver.” So that’s really fun. It’s been really gratifying. We just, on Wednesday the 7th of August, we’re recording on the 9th of August, past a year since the date of publication, and the feedback has been really great, so basically the article is titled, “Leveraging Elsevier’s Creative Commons License Requirement to Undermine Embargoes” and it deals with a way of working within Elsevier’s author sharing policy that actually undermines the policy. So their sharing policy stipulates that authors of scholarly articles that are publishing in Elsevier journals are able to post the accepted manuscript. That’s a copy that includes all of the changes generally associated with peer review, and that the journal then transforms into the scholarly version of record—the final published version. But authors are able to post that version on their personal website or blog immediately on publication with a required or mandated Creative Commons license. It’s the Creative Commons Attribution Non-commercial No Derivatives license and simultaneously they impose embargoes on the author sharing via their institutional repository which is a primary tool that many authors use and many universities have for sharing their work so they impose embargoes on those versions of between 6 and 48 months. I think it’s something like 90 percent of them have 12 months or longer embargoes. But the thing is, is that, if the author goes to the trouble of posting their accepted manuscript on their personal website or blog with a Creative Commons Attribution Non-commercial No Derivatives license then as a repository administrator, I have all the permission that I need to post that same version in our institutional repository and ignore the embargo because then I’m not sharing conventionally under the Elsevier sharing policy, but under the permissions granted by the Creative Commons license instead.
Sara: Wow, so this is kind of a workaround that Elsevier unintentionally created when they enacted or implemented these strange policies.
Josh: Yeah, that’s my impression. You know, I mean we don’t have the benefit of having been involved in discussions about, like how the policy was set up, or like what the boardroom discussions might have been, so we can only speculate, but that I think that seems to be the case. I think it seems like they were either aware of it and hoping no one noticed or not aware of it until we started really talking about it.
Sara: So one of the things that I’ve seen as a result of your article—I saw that you kind of promoted it on the scholarly communications Listserv through ALA, and I noticed that Elsevier started kind of talking back to your discussion there. Can you talk a little bit about that? Like what—were you surprised by that, or?
Josh: Well, so, no, no. I wouldn’t say I was surprised. I mean, I addressed that a little bit in the article. So the article builds on a poster that I gave at the Kramer Copyright Conference in June 2017, and I posted, like I tweeted out the poster which is in my institutional repository, and blogged about it. And so it started circulating on social media and on the global open access list where Richard Pointer posted it. There was a separate discussion happening about Creative Commons licenses and he posted it there as being potentially of interest and in that round with the poster William Gun and Jim Hirsch both responded in different ways, and I blogged about those reactions and what I thought of them. And to be clear, I think it’s important that I’ve never wanted to critique people, or like attack, you know, the people but to contend with their ideas, and so I don’t view this, these interactions as personally antagonistic, but that… I mean I thought that the SCHOLCOMM list reaction/discussion to the article was fairly civil. I mean there, there were… there are other people that might disagree, and it’s been a long time since I looked at that, but in my own interactions, which are the only ones I can control, I was very careful to deal with ideas and not ad hominem attacks, but so I think I dealt with in the article, some of those reactions, and so then, it wasn’t surprising to me that there were reactions from Elsevier on the release of the article. And those, I mean, Elsevier’s main response has been, and shows up in a few different places, they provided it to a reporter for a research professional that did an article about it, basically saying that they require embargoes in order to, you know, sustain their business, and that they requested that their embargoes be respected. And that’s fine and good, like I think that’s a perfectly reasonable request, but as long as the policy is the way it’s currently constructed, my responsibility and those of my peers isn’t to Elsevier, but to my authors and to our community values of openness and in—and to that extent, I see it as my job to use all the tools available to me to achieve the fastest and broadest sharing, and so that’s why, you know like the loophole, as it is….Like we would never artificially extend an embargo, like if we could post a copy of an article in 12 months, we wouldn’t just for fun, extend the embargo to 24 months. And so, like authors wouldn’t stand for that, and like it wouldn’t make any sense when our job is to support sharing. And so, in my opinion, to ignore this opportunity to immediately share the institutional—via institutional repositories and to support authors in doing so would be like that—it’s adding an embargo where one is unnecessary. So I think Elsevier is well within its rights to request that embargoes be respected, but authors and repository folks are well within our rights to ignore that, because Creative Commons stipulates that no additional restrictions can be applied to a CC license, and so it sort of doesn’t matter what any other public statements are, because the CC license is on the accepted manuscripts and therefore can be leveraged.
Sara: So it’s been a while, as you mentioned, since your article was published, and Elsevier is well aware of the so-called Bolick Method that arises from their own policies. Is there any indication that they’re going to change those policies or… In response to that, or do you think that since it’s been so long they’re going to stay the way they are?
Josh: Yeah, I mean that’s another one that we aren’t privy to, you know to—their kind of “behind closed door” discussions. I mean in writing the article, it was not ever my goal to influence their policy. Like I—Elsevier is the subject of my article, but not the audience for my article, which is my peers. Who, who you know, support open access and institutional repositories at universities, though it also applies to subject repositories equally well. So, and given that, there was a lot of criticism when their—this version of the sharing policy was announced in spring 2015, from people who are a lot more powerful than me. Kevin Smith, who was then at Duke, but is now my dean at the University of Kansas that happened in 20… spring ‘16, I think. Kathleen Shearer of COAR and Heather Joseph of Sparc, you know, and lot, lots of, there was a lot of critique and Elsevier held their ground, and so I wouldn’t presume to have any influence over Elsevier’s, you know, shaping its policies. But, that came up in the discussions after the article was published, as sort of like, “Oh what would you have us do,” and based on statements they made, I think they would close the loophole if they were going to change it. They would close the loophole by getting rid of the Creative Commons license, but I think that would be a mistake, and I think that would sort of play into the critiques of the sharing policy in 2015. It would be a walk back from openness, and that’s, I would guess PR that they don’t really want to contend with. So my argument is that they should close the loophole by getting rid of embargoes altogether. There’s either zero or very little—like that, whatever evidence for the need, the necessity of embargoes is really weak, I think. There was an article in Times Higher Ed in late April where the executive publisher at SAGE, which is a, you know, another one of the Big Five commercial publishers says, quote: “There’s no evidence to say that zero embargo periods negatively affect subscriptions,” and he recognized that by removing them, they were being more friendly to authors and to sharing, and the same article mentions that Emerald scrapped embargoes in 2017 altogether, and that they view that as a great step in the company’s progression, and received a lot of positive feedback from authors. So we have players in, you know, big commercial publishing, who are doing away with embargoes altogether, and there’s so many other threats to scholarly publishing that like the haphazard availability of accepted manuscripts on the web, which remember like, in my method, it still requires action on the part of authors. Like this it’s nothing, nothing of this is automatic. And so it’s hard for me to believe that the availability of accepted manuscripts, rather than the versions of record, in a haphazard way, distributed across the Internet, are a threat to Elsevier’s viability when they have like 37 percent profit margins and are regularly absorbing other companies that, you know, are part of the sort of scholarly communication infrastructure. Like if the availability of these copies of papers, kind of around the web, is a threat to that, it’s a—you know, it’s a house of cards that is being assaulted from lots of other places, like the bigger threats are The University of California system walking away from their negotiations, or Sci-Hub, or the 40 percent of the content of ResearchGate being there in contradiction to the publication agreements. This isn’t the threat that—and I don’t think it’s a threat at all—and beyond that even if it were a threat, it’s not the one that they should be focused on.
Sara: I think that is very true. So this is a somewhat biased question, but you published an article in The Journal of Copyright in Education & Librarianship. I sit on the board of that journal, so I’m pretty proud of it. How important was it to you to publish that particular piece in an open access journal and why did you choose that particular journal.
Josh: Yeah well I mean. There’s—I wouldn’t publish anything in a non-open journal. Like my first choice would be always be to always publish in an open access journal. There are caveats to that, I mean there—in 20 I think ’16 I—with co-authors, published an article in The Journal of Wildlife Management which is I think a Wiley journal, but it’s a closed society journal, but we were responding to a critical, I think, deeply flawed, in my opinion, article about what was/how open access was like ruining science. And so I could see the way to like… We were engaging in a conversation that was happening within a context, and we made a copy of our article immediately available in our institutional repository on publication. And so, whenever I have a choice, like my hard preference is to publish in an open journal. There are, you know, circumstances under which I would consider not, but then it would be really important that I share a copy immediately in my repository. But I love the JCEL model, because, I mean the editorial board consists of people that I respect and admire and aspire to, have you know, the knowledge and experience of…there are no fees to authors, there are no fees to readers. You know, I think the last I heard, which is a couple months ago, my article had been accessed over 8000 times, and that’s, I mean you know, that’s pretty remarkable for a scholarly journal article. And so the openness, just the mere the ability to access it, via the Internet, you know everyone in the world with that access to the Internet has access to my article means that even, selfishly I have you know—if I’m thinking about my own career—I have the maximum potential for broad readership and impact, but it also means because of open licensing, JCEL publishes it with Creative Commons Attribution licenses, that as long as I’m given attribution, other parties can do whatever they want with the article. That’s why there was another podcast called Amicus Lectio where the podcaster just read my article and I’m thrilled with that, because that’s an accessibility sort of thing that someone who wants to listen to it rather than read it has a good clear audio transcript of a person reading it. I have heard that there’s a French translation in the works, but have it seen it yet. So, you know the fact that anyone can take this, and blog about it, translate it, modify it, implement it, adapt it, critique it, disagree with, it—you know, whatever, that’s the point to me of everything that we do, like I mean I don’t even get paid to write this article. Not directly, I mean. I have a salary and part of my job is research, but the point is engagement, and the more eyeballs that can access my paper to deal with it, the better that is for me, but also for the idea, and that I’m being inclusive there of critiques and challenges to it, like that is the whole goal of scholarship.
Sara: Right I mean that’s, I’m definitely on that soapbox of promoting open access, and the reusability of what is created by our scholarship. I had an article of mine recently translated into French, and I thought, “Wow that’s cool, people want to read this. That’s a good thing, I think.”
Sara: So yeah, and I did, I went to that podcast, where someone was reading your article it’s really fascinating.
Josh: Yeah, it’s surreal to me to hear some point, and you know, read my article and sound smart doing it, like I did, you know, how listening to yourself, recordings of yourself is awkward, so like it didn’t have any of that awkwardness, like it was just this other person really articulately reading my article.
Sara: Yeah I mean you’re right I mean that’s, what OA opens us up to is a whole new world of— someone could create a video with your article. I’m not sure why, but they could.
Sara: There are so many things that people can do, and Creative Commons licenses just allow us to open up that world. Well thank you so much for taking some time to talk to me about this and talk to the listeners, and I hope that more and more people will utilize the Bolick Method and hopefully we’ve kind of alerted more people to it. A lot of people already know, I mean that article definitely has been making the rounds even before it was finalized, like you said, through the poster and blog posts, and I know there’s been a lot of buzz about it, and I hope that this just further increases the noise around that article, and you know, I hope that other folks will engage and you know, let us know. You know, get in touch with Josh for using the Bolick Method. Let him know, because you know, that’s fun when you see real impact from your research, and I congratulate you on really being able to get something out there the making real impact so I really enjoyed reading your article myself, and I think it’s a great contribution to the field so. Thanks a lot, thank you for joining me today.
Josh: Thank you for having me like this.
Sara: I look forward to your next article. Let’s make some more waves.
Josh: Yeah, I hope so. This one might be hard to top.
Sara: Well I do know you have a book in the works so, you know, those are good too. You might take a little longer to produce though.
Josh: Yeah sometime next year should be, I think.
Sara: Oh wow well that’s pretty quick. So, so you want to put in a little plug for your book? What’s the title? Who’s the publisher?
Josh: Well ACRL is the publisher and we have a long fancy formal title, but basically the concept is an open textbook of scholarly communication librarianship, and it’s an introduction to the field, because we see this kind of work expanding so rapidly library schools haven’t necessarily incorporated it into their curriculum, and there’s lots of scholarship arguing that they should, and so the idea is to build on that scholarship and to provide from the community of practice the sort of theory practices, further suggested reading, ways to plug in to this work, and the idea is that this could serve as sort of the central vehicle for a “Topics in Scholarly Communication” course or be integrated throughout the curriculum based on where it intersects, which is everywhere I mean. We’re really motivated by the idea that almost everyone in an academic library is in some manner facilitating scholarly communication or engaging with intellectual property issues that are really central to scholarly communication, and so we would all benefit from, you know more basic knowledge of the concepts. I’m doing this with Will Cross at NC State and with Maria Bonn at Urbana-Champaign (University of Illinois at Urbana-Champaign), and we hope a really broad subset of our community, because we want it to be as inclusive and broad and representative as possible so that’s—that’s the pitch.
Sara: Oh I love it, and I feel the same way about copyright. It crosses over into every single field in the I-iSchool, and I often tell students, “Oh, what are you what field are you going into?” And they say, “Archives.” So there’s a lot of copyright there. And then school librarianship, and yup, you’re going to come across copyright, and so, yup, scholarly communication, same thing, right? It’s crossing over every single field so, and that’s going to be a really useful book. I look forward to reading it.
Josh: Me too.
Sara: Well thanks for joining me today, and hopefully our paths will cross again soon.