Kyra Folk-Farber Breaks Down the Music Modernization Act
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Sara: Welcome to an episode of copyright chat today we have a guest with us remotely—Kyra Folk-Farber. Kyra Folk-Farber is the head of the music library and chair of the library’s copyright advisory committee at the University of California Santa Barbara and she also serves as the chair of the Music Library Associations’ legislation committee. Welcome and thank you for joining us Kyra.
Kyra: Thank you for having me.
Sara: So today I wanted to talk to you about the Music Modernization Act. It’s been kind of a buzz in the copyright community and I’m sure in the music community as well. Can you give a rundown, a little bit, of what the Music Modernization Act entails?
Kyra: Yeah, absolutely. So, there are 3 parts to the Music Modernization Act and it’s a really exciting amendment. It’s the biggest change to copyright law in decades and what it—it means different things for different people, so… and it’s the idea of the law, is that it’s sort of supposed to help a lot of different communities including musicians and including the public—public interest and including music industry folks as well so… And the way that it does that is that the first part of the act we have—it’s about licensing. And the 2nd part is the part that I really want to talk about today and that’s the Classics Protection and Access. And what that does is federalizes copyright law for pre-1972 sound recordings and gives them a public domain term. So, it used to be that pre-1972 sound recordings were under state laws, and those varied a lot, and it was a really difficult thing to figure out whether—you know—whether uses were legal. But now that they’re—those materials are federalized it means that they have federal exemptions. So, they, you can, you know apply fair use to them, you can use them in the classroom under certain conditions and libraries and archives can reproduce them under certain conditions. So that’s really, really exciting, because that that’s really good for the public, that means the public can have a lot better access to pre-1972 sound recordings and the public domain term means that at some point in the future, all of these pre-1972 sound recordings are going to go into the public domain. And that wasn’t the case before. So those are two really exciting pieces of the law for the public.
Sara: So, under the law before, the state copyright laws were pretty much interminable? For those sound recordings? And so now we at least have an and date. Although, the end date is pretty far off isn’t it?
Kyra: So, for some of this—so yeah—like, so, all… ultimately all of the sound recordings will go into the public domain in… I’m trying to remember the…in 2067 (that’s a long way away), but if they’re before 1923, then they’ll go into the public domain in 2021. And then if they’re before 1946 and after ’23, then they’ll go into the public domain 100 years from publication. So, there’s, you know, there’s different terms. It’s called—they go in different stages into the public domain—it’s called “phased entry public domain.”
Sara: And there’s a fairly good explanation of this these changes on the Copyright Office’s website, right?
Kyra: Yeah, absolutely. You don’t have to dig through the law to understand all of this, because there’s actually a really nice rundown of the whole Music Modernization Acton Copyright.gov
Sara: Awesome. So, what does this mean for libraries in particular and music usage through, say academic libraries?
Kyra: So, you know, it’s a really good thing, especially for scholarship, because, you know, sound recordings are such an important part of our culture, and so when you have people that are able to study sound recordings just as they study other materials, just as you can use the books in a library, then, you know, it makes it easier for people to do the scholarship that’s so important, right? And the other thing is that people, you know, people love to listen to old recordings, so this isn’t just for scholars, this is for people to come and use these old recordings and you know, use them for their own interest just as they would use the library. You know and so, I don’t know if you know people know the ins-and-outs of what’s legal and what’s not before the Music Modernization Act, right? But there’s always this sort of psychological aspect, I think to—you know—if there’s something that you’re not sure whether it’s legal or not (which was a lot of times the case with pre-1972 sound recordings, because of state laws being so confusing), you know, people avoid use using things. And now we can we can firmly say, well, you know what, this is OK. One of the one of the big kind of changes is a part of the law called “108H” and what that means is that—it means that all pre-1972 sound recordings. Can go under Section 108. So it used to be that under Section 108H, which allows reproduction, distribution, performance, and display by libraries and archives of their materials that were ins certain…like in the last number of years of their copyright term, those could be used for preservation or scholars for research. Now that applies to all pre-1972 sound recordings. So that’s a really important part of the law and that I think will be a boon for scholarship.
Sara: So, all work that’s now swept into this federal copyright law for sound recordings pre-1972, if a library is using it for scholarship or research and things of that sort, then they don’t have to worry about the copyright issues.
Kyra: Exactly. Yeah.
Sara: That’s great, because that’s a big relief for copyright. Nerds, such as myself who worry about—especially like you were saying before, under different state laws, it was very confusing, because you know, Texas might say one thing, and New York might say another thing and now at least we know what the answer is because there’s one law to look at.
Kyra: Right.
Sara: So this is a relatively new law. I wonder if you’ve seen any of the impact of the law so far, and kind of what you think might be the impact in the future.
Kyra: Well, again, I think like there have…. There’s been a lot of confusion around pre-1972 sound recordings and there’s been a lot of advocacy to make this happen over decades and decades from different associations, and it’s sort of been under the radar, I think. And it’s still a little bit under the radar, that’s why I’m so glad that you’re, you know talking about this for this podcast, because I think it’s important that people know what’s going on. And so I hope that, like, this will kind of get out there, and so that people know, well now, you know, if I want to do scholarship on pre-1972 sound recordings I have a lot more opportunities to do that without worrying too much, because of these new laws. And, you know, and it’s also, we’ll see kind of what happens in terms of language around some of the other parts of the law so…. and also 108H, because we have to figure out—you know—the Copyright Office has put out, you know, questions to the public, for public comment on how they’re going to implement the law, and different organizations have been working on making suggestions, and those organizations are on sort of different sides of the law, really. So, you know, we have people on the side that want public interest, and we have the music industry side. And again, this law is for everybody, and they want to make everybody happy. And so they’re sort of figuring out how, for example, if you’re using a recording for a certain use, for example, for scholarship, not for you know commercial exploitation—how are you going to prove to the copyright office that you’ve used it in the right way right and how are you going to prove that you’ve done a search to make sure that that you’re not using a recording that’s available for commercial use (because that’s another thing that they have changed). So, there are still a lot of ins-and-outs that have to be figured out and will probably take a few years, and there may be also some more advocacy for shorter public domain terms in the future.
Sara: Right, yeah. So, there’s a lot. There’s a lot going on, it sounds like. And there’s a lot to follow. And I’ve been kind of following myself, those guidelines that were put out by the U.S. Copyright Office, like you said, so that an individual, who wishes to use a song could kind of show that they’ve done a good faith search, that they can’t locate someone to ask permission to use a song for instance. And I think that’s a really interesting concept, just “Where do you look?” Right? One of the places I think they said to look was YouTube and some folks found that kind of surprising, because YouTube doesn’t usually do copyright checks, right?
Kyra: Well, you know, it’s interesting YouTube…They’re like very litigious, actually, and they just take down everything. So I know that—I know of people like musician friends who put up their own albums on YouTube, because there were going to make any money off of it anyway, and so it’s on to put it out there and YouTube, said “No, you can’t, because it’s under copyright.”
Sara: I guess I misstated that. They do do copyright checks in the sense of like, trying to take things down, but they don’t necessarily have a registry of copyright owners, which is what people, you would think, would be looking for when trying to figure out who owns the song.
Kyra: Right and that’s the—and that’s another part of this—of the Music Modernization Act that. That’s the 1st part of it, the licensing part. So now there’s going to be, you know, I won’t go into this into too much detail on this one, because it’s a bit like…wordy, but basically, digital service providers are going to fund a mechanical licensing collective, and that will be governed by songwr—and published by independent songwriters. And a mechanical licensing collective is going to get—it’s going to create a blank mechanically—or create blanket mechanical licenses for the digital service providers. And so, they’re going to basically create a huge database and that will connect songwriters` or publishers with songs, and also if there are unclaimed songs, that will allow people to claim them. So that’s the part, that’s really good for musicians and for the music industry where you, know there’s been this battle with the digital service providers, and so now this will allow, for example, maybe an independent songwriter can claim royalties on their songs.
Sara: Awesome. Well, I think this has been really useful, and to kind of understand where this Music Modernization came from and where it’s going and how it’s helpful for librarians. I just thank you for kind of giving us a little glimpse into it and I know you did a Copy Talk on a similar topic with the American Library Association, so I encourage people who are listening here to look for that as well, and I will put a link up with this episode so that folks can find that as well.
Kyra: I might slide you all some resources if people want to do some further reading on this.
Sara: Oh yeah, great! Well thank you so much for taking the time to talk to me today and I hope that folks have learned something about this new Music Modernization Act, which of course is still developing, and check (if you really want to learn more) the Copyright Office is a really good, accurate source of information as well about the Music Modernization Act. Thanks a lot for talking to me today.
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 their daily lives.
Laura Burtle is an associate dean of library administration at Georgia State University. She supports the mission, planning, and operations of the Acquisitions, Cataloguing, Collection Development, and Digital Library Services departments, and is a member of the senior leadership team. She is a library scholarly communications expert, and provides guidance and support in copyright, fair use, publishing, open access, author rights, and related areas. Welcome to copyright chat. Remotely today we have Laura Burtle with us. Welcome Laura.
Burtle: Thank you.
Benson: So Laura, you have been quite involved in the Georgia State University E-Reserves case. Can you tell me a little bit about your involvement in the case?
Burtle: Well, back in 2007, I was an associate dean that one of the areas that reported to me was reserves, and we got a threatening letter from the American Association of Publishers, that a number of other libraries got as well, warning us about using E-Reserves without paying permissions. Our university counsel looked at it, consulted, and came back, and said that we thought it was fair use, and responded that way to the publishers. And then about a year later, in 2008, we got served with a complaint, plaintiffs now being the 3 publishers that are involved in the lawsuit—Oxford, Cambridge, and Sage. So, I was involved from the very beginning.
Benson: And how long is this lawsuit been going on at this point?
Burtle: Over 10 years. We were sued, and I believe it was either April or May of 2008, the most recent decision we got was in October of 2018, and that was a remand back to the district court for yet another action by that district court, so we’re still not there.
Benson: And in the midst of this whole lawsuit, you went back to law school and got law degree, correct?
Burtle: I did! It made me annoyed, and I just decided that I wanted to learn more about law, and so I went to law school. And, believe it or not, going part time took me 5 years, and I completed the entire degree in the time that the lawsuit is still going on.
Benson: Wow so it was one of—that was when my thoughts, was that this lawsuit might have kind of prompted your interest in the law a little bit.
Burtle: A little bit. I had thought about it before, but I had never done anything, and this… just… it was really interesting just, you know, going through the whole process. I was, you know, subpoenaed, and went through discovery, and deposed, and testified, and it was it was interesting. So yeah, it made me want to learn more.
Benson: And what was that like, as a librarian, to be in the midst of a lawsuit about your job? Was it stressful? Can you tell us a little bit about that?
Burtle: Yes! It was very stressful. Not something that I was ever prepared for or expected to have to deal with. It was terrifying, you know, but I felt good that we had, you know, consulted about the university council at the beginning, so we knew that the library hadn’t responded poorly or anything like that, but it was quite a shock to get sued. That’s not something that happens to libraries almost ever—certainly not academic libraries and certainly not for copyright infringement. So that was that was alarming and then just, you know, having like email subpoena like having a discovery order on my email and having to go through finding all of these times when I had mentioned permission or copyright or anything like that. It was it was a huge time-suck and very alarming.
Benson: And so, I wonder what you have learned from that process that you could tell others about maybe like procedures that go on in the library in terms of how it might reflect in a lawsuit. Has that taught you anything?
Burtle: Well, I think, you know, it is important to have procedures. I mean, we could point out what procedures we had and that we were following them. So, I mean we weren’t acting negligently in any way. We had, you know, defined procedures that were being followed, and so we could point to those a lawsuit and say, you know, we are acting responsibly, this is what we’re doing, these are the considerations we take into account when deciding whether we can put something on electronic reserve without permissions, and these are the things that we won’t do that for, and so we had policies, and I think that was helpful. We didn’t feel like we had done anything really wrong, and I think that, you know, if we hadn’t had all those procedures and practices in place, we may have felt that way. So that would be my advice is to have a policy, have procedures and follow though.
Benson: And so one of the things that I heard had happened during depositions was that a lot of librarians were kind of questioned about their detailed responses to fair use checklists. Is that kind of what happened at court or during the depositions?
Burtle: Well, not so much the librarians—the actual teaching faculty were. They were asked, you know, quite in-depth about their fair use checklists and how they filled them out. The librarians had made a decision—we did not keep copies of the checklists. We had advised the faculty to keep them in case they were needed so a lot of the faculty were asked about that so, it’s about that, but not so much the librarians.
Benson: Oh, I see OK, because it seems to me that that would be hard to kind of recreate after the fact. “What were you thinking when you checked this box that you might have checked two years ago?” Was that right?
Burtle: Right. A lot of that I mean it was certainly part of the depositions, and then it happened again during the trial. A lot of faculty were called to testify and asked to kind of recreate their thinking on things they chose. But I mean, they know why they use things in their classes and the context they use them in, and so they did that better than you might have expected.
Benson: Oh, that’s good to hear. One of my questions for you is what—where are we going from here? I mean, I know you don’t have a crystal ball, but you’ve been pretty invested in this case, and I guess I just wonder, you know, now that it’s been remanded yet again, and maybe you can talk a little bit about why you think it was remanded, and what might happen at this point, because it’s still ongoing.
Burtle: Yeah it was remanded again for the district court judge to do the fair use analysis one more time. This time it was pretty much focused on the fourth factor analysis, and so the court told the judge that she shouldn’t have redone on the fourth factor analysis the second time she went through this (after the first remand), that she should have left it like it was in the first opinion. And on that opinion, she only looked at whether there was a license, and if there was a license for the excerpt, she said it strongly favored infringement, it was strongly against fair use. And then in the second opinion, you know, she really looked at how much permissions income the different experts had made and then used that to judge whether it would be infringing under the fourth factor. So, the court now is telling her go back to your first decisions which, you know, those were mostly going to be infringing on that fourth factor. So, I think, you know, if we go through, if we actually get another opinion, I think it’s probably going to find far more infringements. Now that said, this is a 2009 group of records. You know, the record has never been reopened and so this is very old data. It’s, you know, relevant to this lawsuit. It’s not really reflective of the current realities. So, I’m not sure it’s going to have that much impact on current practices at all.
Benson: Right. So that’s a good point. So even if she, the judge, in this case is forced to, you know, find more infringement than maybe she would have found before, the only outcome here really is an injunction, right?
Burtle: Right, because we’re a state institution, we cannot be sued for damages, so it will be an injunction. And there has always been an injunction basically saying, “Follow whatever the district court had said in her last ruling,” because there’ve always been at least a few infringements found, so I would expect that to be the same result. It may result in there being more emphasis put on license availability into their fair use analysis in this context, but I think that’s the case already, so I’m not sure it would really have that much of an impact beyond some very narrow practices.
Benson: Right so I guess in terms of greater impact, which I’m sure the publishers were hoping for, they at the very least they do have some appellate court decisions that are leaning in favor of kind of a tighter analysis for non-transformative fair use analyses that focus more on the harm to the market share, right?
Burtle: Right, well they’re really emphasizing the importance of the digital license in the market analysis, not just the original work. And I mean that goes all the way back to the Texaco case—this is not new. but they’re really focusing on it and it hasn’t been really talked about on the Eleventh Circuit that much, so they’re really saying that the value of the copyright is the original work and the license, and you have to consider them both, and they’re both equally important. So, it’s, you know, it’s the way the world is now. We license everything. So, it matters in that case, but since we license everything, I’m not sure it’s going to change practice that much. Things have evolved so much since this all started.
Benson: Yeah can you talk a little bit about that? I mean are you referring to like e-book licensing and things of that sort?
Burtle: Yeah, yeah. I mean, libraries don’t buy that much anymore. We license everything. I mean, we’ve licensed—I mean, certainly almost all of our journals are licensed. We license, you know, huge amounts of books. More and more, we license books, we don’t purchase physical copy copies of things, and so you know we don’t—if somebody wants to put something on reserve now, chances are pretty good that we have an e-book and so it’s already licensed and we give them link, you know we don’t even we don’t make a copy of anything. We’re not using a print book, and I think that’s just common across the board.
Benson: Yeah, I agree it’s definitely becoming a bigger marketplace which has its own kind of complications for what types of licenses are being given out for e-books and how many people can access a particular e-book at a time and things of that nature. I guess I wonder how much we can limit our application though of this analysis to your particular jurisdiction. What do you think of our argument saying hey well that’s a thing but a happened in that circuit, and this doesn’t necessarily apply everywhere?
Burtle: Well because it is fairly novel (not—I mean, fair use analyses are certainly very common across the board), but this particular instance—looking at a nonprofit educational use of published academic works, there’s not a lot of other authority around to that particular very narrow topic, and so I think in that particular area, it probably will have a lot of persuasive impact—you know, authority across the board—even if it’s only binding in the Eleventh Circuit. So again, I don’t know that there will be a lot of other lawsuits. This has been very expensive, very long. I’m not sure anybody would have a taste for doing this again, but if they did, if a similar set of facts came up, I think it would probably have a fair amount of weight just for its persuasive authority, wherever it happened.
Benson: Do you think the publishers are going to start calling this a win?
Burtle: Yes. I mean they’re going to say they got they got a recognition, that license markets matter, and they’re focused on license markets, and I think they’re going to say, “Yes,” they won. We’re going to say, “Well, you know, we have made it quite clear that the costs from copying guidelines are not relevant, that the course pack cases don’t have anything to do with electronic reserves, and so we won.” I think it could go—we’re both going to declare victory whenever this ends.
Benson: Do you think the publishers are going to use this case though as a stick to maybe start threatening lawsuits, whether or not they would actually go through it to try to get some folks to settle, maybe if they find widespread copying at different institutions?
Burtle: Oh, I think they would. That’s been their practice. That said, I don’t think they’re going to find it, I mean it’s never been really clear how they even found it here. We didn’t deny it, so that never had to be addressed, but I’m not sure how publishers would be aware of it. It’s not something that’s easy to see, unless you’re in the library or whoever runs your course management system—they might be able to see what’s in there. But it’s very hard to tell otherwise, and so while they may want to use it as a stick, I’m not sure that they really are going to have much to point at.
Benson: Yeah. So, it’s from my understanding, and correct me if I’m wrong, I thought that they initially discovered what was going on at Georgia State because of a policy that was in place about E-Reserves, is that is that right or no?
Burtle: No, they had actual lists of books that were in our system. It wasn’t just the policy. I think the policy attracted their attention, because there was a policy that they didn’t like, and that had been a long-standing issue. How they actually got into our system has never really been clear.
Benson: That’s frightening… to me, at least…
Burtle: I mean, I’m not saying that they necessarily did anything nefarious, I mean, it was a hosted system. There may have been a hole somewhere where they got a peek, but you know, that’s not going to be something they can always go look at there’s not going to be any reason for them to be able to tell a university they have to show them what’s in their system, you know, without any calls and so, I think they’ll make that—you know, they’ll declare victory and say, “You have to license your E-Reserves,” but I’m not sure that they’re going to have a lot of opportunity to point out particular institutions and say, “You.” They can look at policies, but you know, the policy doesn’t mean that we’re not ever paying permissions, just because we have a policy doesn’t mean permissions aren’t being paid and you know, what they really don’t want to admit is that most faculty are not going to pay these permissions for reserves—they’re too expensive, there’s not a budget for it, they’re going to use something else. So, I mean, at Georgia State, if there’s you know, if somebody does an analysis and it’s really not fair use, we can’t argue that it’s fair use, you know, we’ll give them the price for the license, but generally what happens is they’ll just put a physical volume on reserve. Students can come in and use it in the library and that’s the fallback—not paying the license. There’s not a budget for the license.
Benson: Right and if there’s no E-Reserves, many academic libraries have moved away from the E-Reserves, then I wonder what the faculty member would do in that instance—potentially find a different source. Because at that point, the license—so some libraries pick up the e-licensing costs, and others try to pass it along to students and course packs and such things like that, but I think with more and more e-books the libraries are kind of picking up that cost again but just in a different route.
Burtle: Right, right. So, if we have an e-book and somebody wants to put it on reserve, we’ll check, and if we have a limited user license, if we have a one-user license or three-user license, we will generally increase the license count. So we are paying for it that way, but it’s a little bit different than the paying for the E-Reserves, because that would be, you know, with the CCC, it’s for those students, for that semester, whereas with the e-book, if we increase the license availably, everybody can have access to that, not just the students in the course. So, although we’re paying the license, it’s having much broader impact than it does if we would just pay it for one particular course E-Reserve. Does that make sense?
Benson: Yes, I think that’s a much better way to go, but some books are not available in e-license. Which is—that’s the rub, right?
Burtle: Right, right. Of course, we’ll still do a fair use analysis. Just because there is a license, does not mean there can never be fair use. There may still be fair use and we’ll wait for the court to rule again to look at how about how she does the analysis this time, and if it gets appealed again, how the Eleventh Circuit addresses the way that it’s done, but all of that aside, there are still going to be fair uses. And so, you know, we’ll certainly still do what we’ve always done—digitize what we need to and put it in the E-Reserve system. And again, if we don’t have confidence that it is fair use, we’ll just put a print copy on reserve and students can come in and use it, so…
Benson: I like your point there, because I agree that we shouldn’t view this as a black-and-white issue like, “There’s a there’s a license for a chapter, but we really only need half of a page,” and you know, should I have to pay for one whole chapter when I’m going to use half of one page. You know, at some point there’s still a fair use, even with a license available.
Burtle: Yeah, and I mean the courts—the Eleventh Circuit and the district court—but I mean, both of the courts have said it cannot be the case that simply by providing a license there can never be fair use. I mean nobody is saying that. And I think it’s important to remember, you know, it may be narrower, we may have more trouble showing a fair use for this particular kind of use, but it’s not that it’s never going to be there.
Benson: Yes, I completely agree with you. Now do you have an idea of when we will hear something from the district court in this case again?
Burtle: No. We have not even received a scheduling order, so I have no idea.
Benson: So, this is really to be continued, and it’s just been going on for such a long time.
Burtle: It has been going on for such a long time it would be lovely if we could just…I mean if we could just settle this, everybody could just be happy, but I’m just not seeing that happen. We haven’t been able to this far, and so you know, there’s always discussions. The courts expected you to discuss that, but so far, we haven’t been able to do so, we’re waiting for a scheduling order, and we’ll see what the district court asked for.
Benson: If there were to be a settlement, what would it be on the basis of, because really all they’re getting is an injunction for works that, like you said, you’re no longer even using necessarily.
Burtle: Right, right. I think it would just be on the basis of what the Eleventh Circuit has said about license availability. I mean, we’d have to just agree to leave it where it is, and I don’t think they want to do that, and we don’t really want to do that either.
Benson: So basically—agree to follow what the Eleventh Circuit said in your new practice of E-Reserves going forward?
Burtle: Yeah, I mean it would have to be. I mean, there would be something far more specific if it were a settlement, and I just don’t see that happening. We have never been able to agree on anything more specific, so I don’t see it happening, no.
Benson: Well I think I’m with you there, but I, like you, wish this lawsuit would end.
Burtle: It’s ridiculous I can’t believe it’s got all this long.
Benson: Well I really thank you for joining me today, I think you’ve shed a lot of light on some of the backstory to this issue and some of your own experiences with this issue. Is there anything else you’d like to tell listeners about the case or your experience throughout the case?
Burtle: Well I think it’s—it was a situation when we were first sued, a lot of libraries thought that we were doing something unusual, that we were causing a problem, and as, you know, this has gone on, people realized we were doing the same thing as everybody else, we were not bad actors, and, you know, now people appreciate that we continue to fight this, and I appreciate that people are recognizing us for that. We all wish it would be over, and that we would come out with an outcome that we can all live with, but at this point, I think people need to—you know, we are just going on with our business. Fair use is still a thing. We can still rely on it, and we shouldn’t be afraid of it, but there are always going to be lawsuits, always going to be cases, that come out that help us define exactly what we can and can’t do.
Benson: Well, yes and I agree. I actually—I am one of those in the realm of thanking your library for fighting this battle for so long on behalf of all academic libraries who, like you said, engage in various analyses on a daily basis. So, you’ve really kind of taken a big punch for the team. I know it’s not been any fun.
Burtle: All right well thank you. I enjoyed talking with you.
Benson: Yeah, thanks for joining me today, and have a happy holiday season.
Jonathan Band is an intellectual property law attorney for the Library Copyright Alliance. His website is www.policybandwidth.com.
Copyright chat is a pod cast 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.
Benson: So welcome to an episode of copyright chat. Today I have Jonathan Band with me from Policy Bandwidth. Welcome Jonathan, thanks for being here.
Band: Thanks for having me.
Benson: I really was intrigued by your recent discussion of the ReDigi case and this is a case that’s been going on for quite some time. I wonder if you can tell me just a little history of the case to begin with.
Band: Sure so the case. Started. Probably you know 7 or 8 years ago. The company ReDigi developed the technology that would allow people who owned iTunes files to sell them. And the thinking in those days was that you’d have users build up over time, huge files of iTunes, you know huge libraries of iTunes files rather, and that as their tastes change they might want to get rid of those files and buy new ones. So just like you could dispose of your used record collection or your used book collection, the thinking was you should be able to dispose of your used audio iTunes files collection. And so the technology worked that you would basically transmit a file from your computer to the ReDigi computer and then the ReDigi computer would transmit the file to a purchaser. And, so, ReDigi developed this technology. They were sued for copyright infringement. ReDigi said, “Oh, but we have the first sale doctrine.” And the first sale doctrine allows us to basically sell a copy. If we own a copy we’re able to sell that copy to someone else. The record labels that sued ReDigi said, “Yes that’s true you can sell that copy, but you’re not selling copy. You’re in essence making a new copy on the ReDigi server and then you’re making another copy when that when it’s transmitted to the purchaser.” And so the first sale doctrine isn’t an exception to the distribution right, it allows you to sell a copy–a specific copy that you own without infringing the distribution rights, but it doesn’t allow you to make new copies. Much of the case sort of centered on the nature of the ReDigi technology and how it worked. And ReDigi technology (or the way they said it worked) is that it didn’t sort of transmit an entire file to ReDigi and then delete it from the first computer. So that you sort of had sort of at least at some point maybe two copies one on the seller’s side and one on the ReDigi’s side and then when ReDigi sold that, sold the file to a purchaser you then again have two copies at any point in time. Instead, ReDigi used this packet technology and sort of broke the file into many, many little pieces and sort of transmitted piece by piece, the file from the seller’s computer to the ReDigi computer. And as soon as one little piece went over to the new computer to the to the ReDigi computer, it was deleted from the seller’s computer and such that ReDigi was arguing that it wasn’t making a new copy, but it was actually moving the original copy. And then that was their argument. And so that because they are not making new copies but simply moving the existing copy that was not a reproduction, but it was a distribution, and but it was a distribution protected under the first sale doctrine. The District Court in 2013 said, “Very interesting, but I don’t agree.” It basically said wait this argument doesn’t make any sense to us—you’re making a new copy! There’s a new copy being made on the ReDigi computer and then when ReDigi sort of forwards the copy to the buyer, another copy is being made. And so the first sale doctrine doesn’t apply. Again, first sale doctrine is an exception to the distribution right, not the reproduction right, but you’re making reproductions. ReDigi also raised the fair use arguments and said, “To the extent we are making a reproduction, that’s a reproduction that’s permitted under the first—under fair use.” And in sort of like a paragraph the district court just dismissed that argument. And so that was where the case was in 2013 the district court found that ReDigi had infringed, it rejected ReDigi’s first sale argument and it rejected ReDigi’s fair use argument.
Benson: And can I interject here for a second?
Band: Sure:
Benson: Because I guess, I wonder—the court and on appeal and I know you’re about to get there—notes that quote, “Other technology may exist or be developed that could lawfully effectuate a digital first sale.” And I always thought that part of the argument that we have for first sale is that things are going to deteriorate over time, you know this particular book isn’t going to be as good in 20 years as it is now, so that’s why you sell it once and then people can resell it but a digital object, potentially, if you have the right technology, could live on forever in as good of condition in, you know, good-as-new condition. Isn’t that one of the justifications for the first right—for sale right to begin with? So where does this digital right belong?
Band: Well that’s a good question. It’s certainly in various discussions of the first sale doctrine. That is an argument that has been made as to well, you know, when it’s not, you know, that there is some deterioration and so selling the used copy does not interfere with the market for the new copy and in theory that’s true but of course the first sale doctrine is not restricted to heavily used goods. Meaning, it applies to a copy—it can apply to a copy that you bought 5 minutes ago. And you’re able to sell it and it could be in—that copy could be as pristine as a copy that’s still in the bookstore right? It doesn’t… that isn’t justification that it’s been used, but it’s certainly the first sale doctrine isn’t restricted to sort of used books or used products and so, the 1st sale doctrine is the basis of the entire distribution chain. Meaning, it allows, you know, a manufacturer sells to the to the wholesaler—the wholesaler turns, sells to the retailer—the retailer sells to the consumer—the consumer conceivably, you know, can go to Costco and buy in bulk and then sell somewhere else, right? I mean all of that is permitted under the first sale doctrine and it doesn’t matter, it doesn’t need to be used and so, even though you’re sort of giving a policy justification, the nature of the right isn’t that limited.
Benson: I agree also. Technology does deteriorate as we all know especially those of us and in preservation and digital preservation not to mention the fact that technology changes but I guess to the key of this first sale issue is it—is the fact of the matter here that they just didn’t do this right? That that they just, that a technology just wasn’t hacking it for first sale purposes?
Band: Well I guess there is a question as to whether, I mean, the court is speculating that someday some technology may exist and this actually came up in the oral argument and to some extent in not only the oral argument, but you know a lot of, you know, the analysis of the case and the oral argument was actually very interesting the oral argument for the second circuit it lasted for two hours the judges were very—and usually they were asked for half an hour OK, but they just let the argument go on and on, asked lots of questions, they were intrigued by this notion that it really wasn’t a copy being made, right, but there was it was just a transfer. And this sort of gets into a—it’s almost a philosophical thing as to when is, you know, when is something the copying, when there’s something just the same thing just moved to a different place and so you know the obvious analogy is Star Trek, right? So when Captain Kirk is beamed up to the enterprise, is it the same Captain Kirk, or is it a copy of Captain Kirk, right? I mean certainly under that technology the assumption is as well no it’s actually, it’s Captain Kirk. So when, you know, he’s beamed down to the surface of a planet, I mean, his body leaves the enterprise and then it’s down on the surface of the planet and when he beams back up, it’s not a copy of Captain Kirk—it is Captain Kirk. And I think to some extent that the court was sort of alluding to that. While the technology may exist at some point of the future where you really are sending. It’s not a copy being made, but it is the original file, but I don’t know if any technology such as that will ever exist at any point. But to some extent, I think the court may be may have been a little tongue in cheek when they were talking about “Oh, a technology may exist. Star Trek, you know, may come to pass.”
Benson: Where they actually bring up examples like, of that type, during the oral argument? I didn’t get a chance to listen to that.
Band: The oral argument was so long ago, I mean it was it was over a year ago, it was last summer—the summer of 2017. And so I admit, I forget whether Star Trek actually came up during the oral argument or in all of the discussion that took place around the oral argument. I forget, but certainly it’s been written about so I wouldn’t be surprised if the clerks, if the Judge’s clerks weren’t aware of this analogy to Star Trek.
Benson: And so all of this sounds very sci-fi at this point and I’m sure the listeners are wondering, “What does this have to do with libraries?” Right? And this is where the controlled digital lending comes in and my understanding of the proposal of controlled digital lending, which was put out by Duke Library and others, is that there was an idea of, “OK we have a book, we are going to create one scan of that book, and we will lend out the scan of that book.” Digital lending—only one copy. So we’re not lending, you know, ten copies of this book. We’re lending out just one copy as we would lend out a physical book, and the justification for that was two-fold: one, under the first sale doctrine, and secondly, under fair use. Does this case put the kibosh on that first sale argument?
Band: Well it might put the kibosh on the 1st sale argument, but I don’t think this control digital lending ever really focused so much on the first sale argument, because the first sale argument was kind of abstract. And I think you’re right, it does get very sci-fi-ish and sort of metaphysical, “Is it a new copy?” “Is it the same copy?” And that’s why I certainly always view this is a fair use case, right? Where it’s like, yeah a copy is being made, you know, we’re not arguing that it’s the same copy, we’re saying, “Yeah, OK, of course a copy is being made in the in the ReDigi computer and then another copy is being made when it’s sent to the transmitted to the end user,” but that copy is OK under the under the fair use doctrine, and I think control digital lending really was focusing on fair use and certainly the Library Copyright Alliance, which I represent, you know, we filed an amicus brief in the Second Circuit saying, “Look, this is really, you know, all the fair use—all the first sale arguments are very interesting, but this is really a fair use case. And we made an argument that it should be permissible under fair use. Now the second circuit, you know, one of the arguments made in our brief was that the district court sort of dismissed the first sale—the fair use argument in a paragraph—a minute, basically, “Fair use doesn’t apply, this is a commercial use, that’s the end of it.” You know, we said, “No, no this is actually a much more complicated issue and it’s worthy of more discussion.” And the Second Circuit did discuss it in much more detail. Now, with respect to CDL (Controlled Digital Lending—with the CDL or the white paper supporting CDL makes a fair use argument, but it relies on a very specific fair use argument (and this is the same fair use argument that we made in our amicus brief) and that specific for use argument is that under the first factor (the first fair use factor which looks at the purpose and character of the use) that courts in the past have and now in the future explicitly should look at other exceptions in the Copyright Act and say OK this use is similar to a use permitted by this specific exception. For whatever reason that specific exception doesn’t apply, but the purpose underlying that exception is the same as sort of the purpose underlying, this use and that that should at least inform the existence of the specific exception that the purpose under with respect to that exception, should inform the first factor analysis—the first fair use analysis—and so in this situation, you have the first sale doctrine. Again, it doesn’t apply, because we’re, you know, we’re making new copies, right? But, because we’re destroying—ReDigi’s technology has sort of destroyed the copy, deleted the copy on the user’s end, the seller’s end, as soon as he transmitted the copy, to ReDigi, it deleted the copy of the file on its computer and its server when it forwarded the file to the purchaser. So, basically, you know, you started with one copy of the file, you end with one copy of the file, and so it was functionally equivalent to the first sale doctrine. And so the argument was that we made in our amicus brief, and I think the same argument that CDL is, since it’s functionally equivalent, it’s the same thing as, whether it’s permitted under the 1st sale doctrine, you know the fair use doctrine should allow you to get there or at least it should be, the analysis should—when you look at the first factor you should consider the fact that there is this other exception out there where Congress has determined or (courts previously have determined) that this is a permissible purpose. And that should influence the first factor analysis. So CDL, relies on the white paper. That’s been written by Dave Hansen and Kyle Courtney—relies very heavily on that argument. Again, you know, I think it’s a great argument, not only is it in the LCA amicus brief, it was actually… I wrote it and I developed it in a law review article about 6 or 7 years ago, so you know I think it’s a great argument. The only problem is that Judge Leval out in the Second Circuit’s decision—he completely ignored that argument. He made no reference to it whatsoever, you know, so even though our amicus brief talked about that, the specific fair use argument, and even though the Association of American Publishers (AAP), they filed an amicus brief that specifically attacked this theory, right? So there was a lot of discussion of this theory—Judge Leval completely ignored it. Not even a reference in a footnote. So, that means, I don’t know. What does that mean? I mean, you have to sort of say you know CDL is premised on this specific fair use argument. Now we know, it was somewhat disrespected at least or disrespected by omission by the Circuit Court. You know maybe now we at least need to go back to see whether—is CDL permissible under sort of a more traditional fair use analysis, or you know, the fair use analysis that Judge Leval articulated in the ReDigi case, because he did devote a fair amount of attention to fair use and he kind of walked through the four factors and so, you know, it seems to me that given his ignoring this specific fair use argument that at the very least you need to sort of say that, “Ok, well let’s assume—let’s pretend that that argument doesn’t exist. Can we still justify, CDL under the more traditional analysis or do we need to adjust our thinking a little bit to fit into fair use under this kind of this more traditional analysis.”
Benson: I agree with that, but I also think it’s important for folks to note that Judge Leval was the judge who first iterated the transformative tasks, so he is definitely a judge who knows about fair use, and so an opinion from him about fair use is pretty persuasive. So that’s one thing to note and two, I draw the attention to footnote 16 in the opinion on the on the appeal. Judge Leval says to the extent a reproduction was made solely for cloud storage of the user’s music on ReDigi’s server and not to facilitate resale, the reproduction would likely be a fair use, just as the copying it issue in Sony was fair use. Is that now a viable option for CDL, saying, for instance, that a library patron now is just facilitating their own storage of the book that they were going to check out and since this is more akin to Sony than ReDigi and its for educational and nonprofit purposes, would that justify CDL lending?
Band: Well that’s an interesting idea. I haven’t actually thought of it in that context, I mean, because I certainly in this cloud storage situation you sort of like—it’s the user, you know, the user has a copy in one place and he is sort of space—you know, the user is the one initiating it and shifting it and doing the space shift thing, right? Here, in the library context, you sort of like have this library service that is doing the space-shift thing and it’s the library’s copy that is being moved, whereas I think in the cloud storage situation it’s more it’s the user’s copy that is being moved from point A to point B. In CDL, it’s the library’s copy that is being moved from the library’s server to the user’s computer and then, you know, sort of back again. So I’m not sure that—that footnote is certainly very important for other things, I’m not one hundred percent sure that it is relevant to CDL.
Benson: I wonder though, in this scenario, if we can view the library as more of an agent of the patron. And I’ll kind of walk you through the argument, at least the way I view it, public libraries are funded for the public, they serve no other purpose but to make books available to the public, so in some regards, the books are not really owned by the library they’re owned by the public, and so when the librarian makes that copy and puts it on to the server they’re actually doing so only at the request of the patron and so it really is the patron’s copy under that analysis. You think that’s too much of a stretch!
Band: Um, yeah, I think that would be a little abstract.
Benson: That’s the way I view libraries!
Band: No, no, I agree with that, but I think they’ll still see that that it is, that this specific copy is owned by the library, it is not owned by the general public, and therefore, you know… I hear you, and, look, you might be able to persuade a judge at some point that that’s, you know, that that works. I think the thing to recognize though is that Judge Leval did in his transformative use discussion, he’s sort of—he’s developing a theory that might ultimately be more useful here in the CDL context, and we have to see how it plays out. So he talks a lot about Betamax. So the Betamax—and you mention that it’s sort of a universal case, it’s this, you know, it’s a case where, you know, the 1984 decision where the Betamax Video cassette recorders were unlawful because it enabled this time-shifting—that a user could record a T.V. show, you know, if it aired at 9 o’clock over the air broadcast, you could tape it and watch it at 11 o’clock, right? And that private copying was, you know, seen as a fair use and because it was fair use then the Betamax recorder was not contributorily infringing. Now I’ve always viewed that case as sort of the quintessential non-transformative use case, right? It’s a private copy. I mean you’re making a copy of the whole thing, and you’re doing it for the same per year. You’re not taping it to show in a class, right? I mean, you’re not repurposing it, or re-contextualizing and this is like—it was all about a user who otherwise would watch the broad broadcast at 9 o’clock, now he’s just going to watch it at 11 o’clock. And so how does that, how could that possibly be seen as transformative, right? I mean, there’s no repurposing, no re-contextualization, no using for a different purpose. It is, you know, for whatever purpose he may have watched it at 9 o’clock, he’s going to watch it for the same purpose at 11 o’clock and there’s no difference. So I always, and again I think everyone, or the standard interpretation is that this was to the extent that Laval indicated came up with this transformative use theory and courts had adopted it—Sony has always seemed as like the “big exception,” that the transformative use was that not all use is needed to be transformative. See Sony, right under the Sony case. It wasn’t a transformative use, and so therefore, there are uses that are not transformative that can still be fair under the first factor. Now, in the last year that was the Second Circuit decision in the TVEyes case where they came up with what I thought at the time was kind of this crazy theory they said, “Well, you know, Betamax, you know, that’s how most people refer to the Sony versus universal of the Betamax and this is a better mix decision really is a transformative use case because they found a way to increase the efficiency of access to the work, without harming the rights holder. And so therefore it’s transformative. And I thought at the time, well that’s kind of crazy. But then along comes Judge Leval. Now and he sort of repeats it and he says, “Yeah, OK, I agree.” And so what was before sort of an outlying, oddball decision, well now the Judge Leval. As you said, you know, he’s Mr. transformative use. He’s now saying, “Yeah this is right, that if you make a use that enhances the efficiency of access while not harming the rights holder, then that could be transformative.” Now, I still think that’s kind of a strange theory, but you know, who am I? I’m not Judge Leval. I’m just a copyright pundit, but he’s an article three judge one the second circuit, so I guess it is transformative. So conceivably, if you’re able to sort of fit CDL into that rubric, maybe it qualifies as transformative as in in Judge Leval’s view. Now, you can see why in the ReDigi case it wasn’t transformative, mainly because it increased efficiency, certainly of access—or not or didn’t really increase in efficiency of access, right because, these were iTunes files, right and so you could always have just bought it from iTunes. So the fact that you’re getting it from ReDigi isn’t making it any more efficient than getting it from iTunes. And also it harmed the rights holders here, in the ReDigi case, because the sale was competing directly with the iTunes sale of the same file, which as you indicated, has not deteriorated, and because of that competition, it harmed the rights holder. So you could say, well maybe in the in the library context, if the book is only available in hard copy, but now is available digitally, maybe that is access enhancing. And if the book is of out of print, or somehow something, you know, where it doesn’t really harm the rights holder in any way. But all I’m saying is—one needs to, I mean, the point of my peace was, you need to come up with—CDL should make sure that it fits into this new box rather than this old box and maybe it does. I don’t know, but I at least one needs to do the analysis and think about it. The argument that was used previously—again, even though I think it’s the right are going to agree with it I created it I made it up even though even though I think it’s the right argument, I agree with it, I created it, I made it up—even though that argument I think is still right, at least until The Supreme Court or another circuit court agrees, you need, one would be well advised, to make sure you fit into, the other rubric and it could very well be you could do it but you would need to go through the process of applying this argument. You need to make it fall into this transformative use category at least as defined by Judge Leval.
Benson: Yeah, I think that argument that you raise is a really good one. Obviously you’ve thought it through. I wonder, now going forward do we still have this kind of two-pronged analysis of, you know, plain old fair use—the four factor test versus, you know, transformative fair use? You know, a slightly different cast, or are we now collapsing them into one thing?
Band: Well, I think it’s certainly…to the extent that—even Leval says you have to do all four factors, right? Even though the obviously gives more weight to transformative-ness than anything else, and he does say, “Well you need to look at the other factors and you need to weigh all the factors together to the extent that they serve the purpose of copyright and so forth.” But what I would say is that by suggesting that Betamax is a transformative use case then he is certainly putting a lot of weight on the notion that the use has to be transformative to meet that first fair use factor. Now, again, to some extent you can say, “Well is this throwing the dart on the wall, then drawing the circuit, the target around it, right?” I mean, if you’re going to say that Betamax is transformative—well boy, gee, you know—what isn’t, you know? You can start to sweep in all kinds of things into “transformative” in that vein. So I think that it’s this might be the way to look at this is that’s certainly transformative. Transformative use has been eating up the first factor or swallowing the first factor, and this this sort of like, completes the swallow. If it almost seems that the first factor has been completely subsumed by transformative use notion to the extent that even Betamax is seen as transformative.
Benson: Well then one last question for you, as I recently was talking to Laura Burtle about that Georgia State University case and E-Reserves—does this negatively impact (this focus on transformative use for factor one) negatively impact that case, because in that case it does seem like just pure copying, that kind of non-transformative use, or can we now make it—
Band: –Right, right, that’s the question is can you—how does it apply? How does this revised Betamax interpretation apply? And so is it efficiency enhancing? And I think to some extent one of the things the court did look at is—is a digital license available? And certainly if a digital license is not available, then I guess you can say, “Well it does enhance efficiency,” whereas if a digital license is available, they will really use doesn’t really enhance efficiency of access and then the other part is the harm to the to the rights holder and I think that would sort of the depend on the work. And again, you know, whether a license is available or not. You definitely want to—If you’re in the Eleventh Circuit you’re going to definitely want to fit yourself into both whatever the Eleventh Circuit said, as well as what Judge Leval said, and you might be able to. I mean, it’s entirely possible that you know there would be a set of works where you’d be able to make it work comfortably, but remember in the in the Georgia State case, the Eleventh Circuit said that educational purpose is a purpose that is given weight under the first factor even if it—you know—whether or not it’s transformative and the end of… It certainly seems that the Eleventh Circuit has a narrower definition of transformative, arguably, than the Second Circuit, I mean, but again, the way Leval would look at it is, “Oh! If it’s an educational use, then it is almost inherently transformative.” Unless, you know, you’re dealing with a textbook, or unless, you know, you’re dealing with something that is specifically created for this market. And certainly textbooks are, but then you could even, to the extent with monographs, or you can say, “Well if the chapter from a monograph, is the monograph really created for, you know, undergraduate courses?” and using it in a different way and so forth. At some level, you know, you can—this might get into a bit of a semantic argument or, you know, like, “when is a wall a wall,” right?
Benson: Right. Well in the seventh circuit it seems like they don’t like transformative fair use at all.
Band: Right well, I guess, to some extent it’s also… One of the problems with this notion of transformative use is the word, right? The word, “transformative.” If you’re not transforming the work, then how could it be transformative, right? And so then Leval gets to say, “Oh, well it’s transformative if it has a transformative—that, you know, you’re not transforming the way the work looks, but you’re transforming the work’s purpose.” So it’s… So is there a better word to use than transform/transformative? And so that’s why I was trying to stay away from “transformative,” because people say, “Well, no, that’s not transformative, because, you know, the work looks the same, it’s not, you know or interesting one operator using it in a different way for different purposes or recontextualized.”
Benson: It does seem like the HathiTrust case fits more into the recontextualized scenario than a “transforming the work” as they are simply digitizing the entire work.
Band: Right, right. Except, except—
Benson: But I mean obviously not for the same purpose, not for the same thing.
Band: Well, yes, except, right, so, but remember HathiTrust—you have the main purpose of the HathiTrust, the main issue there was digitizing the works for the purposes of search, and so now you say, “Well, that’s clearly transformative, right, because you’re using—you’re recontextualizing it and repurposing it and you’re not serving up—you’re using it in a non-expressive way, you’re not displaying any of the text. But part of HathiTrust, remember, was providing full text access to people with Print Disabilities and that was seen as transformative and it was transformative to some extent, because it’s a different market, and again that seems to me to be sort of an interesting definition of transformative, or a broadening of the notion of transformative. But, you know, my recollection is that in HathiTrust they considered that to be a transformative use.
Benson: Oh yes, and I also think that strengthened the old argument about kind of reading it—reading the first factor along with other exceptions to copyright the CDL was trying to make, but unfortunately, as you noted, it didn’t get addressed in this ReDigi decision.
Band: Well, right, it could very well be, you know, that that that they intentionally—they saw that there was this dispute between the libraries and the publishers and Judge Leval said, “I’m not getting into that.” You know, that’s a story for a different day. I don’t need to get into that, I can decide this case on these grounds, and so, you know, you could always say, “Well ultimately this decision doesn’t tell you one thing, doesn’t tell you anything about CDL.” You know because it’s talking about something totally different, and you know, and it could be that if Judge Leval ever looks at CDL, at that point he might buy into the you know the argument, the sort of like this “first sale using fair use to create a for sale analogy.” For so analog. Maybe? With that case he’ll do it? But he just didn’t want to, you know, so you can certainly interpret it saying, “I just don’t want to touch it and so…” You can’t draw any inference from the fact that he ignored this argument.
Benson: That’s—that’s a possibility, but I like your other argument better.
Band: Yeah.
Benson: Well it’s been it’s been such a pleasure talking to you today! I love geeking out about copyright issues and I learned a lot, so I thank you for joining me today and Happy New Year.
Band: Thank you very much and Happy New Year to year too.
Sara: Copyright chat is a podcast dedicated to discussing important copyright matters. Host, 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.
Kathleen Fitzpatrick is director of digital humanities and professor of English at Michigan State University. Prior to assuming this role in 2017 she served as the associate executive director and director of scholarly communication of the Modern Language Association. Fitzpatrick is author of Planned Obsolescence: Publishing Technology and the Future of the Academy by N.Y.U. Press in 2011. She is project director of Humanities Commons, an open access, open source network serving more than ten thousand scholars and practitioners in the humanities. She is also co-founder of the digital scholarly network media commons where she led a number of experiments in open peer review and other innovations in scholarly publishing. We’re very happy to have her with us today on a copyright chat. Welcome to an episode of copyright chat where I have Kathleen Fitzpatrick with me in the studio live. Welcome Kathleen thanks.
Kathleen: Thanks for having me.
Sara: Kathleen is here as a part of a big data summit, so I was really lucky to snag some time with her, and I’m really excited because you have a lot of really great projects around open access so I thought I would just start by asking you, how did you get involved in the open access movement. Kathleen: That is a really good question. I…my first memories of having gotten involved in anything related to open access came about the time I was trying to get my first book published and I was running into some challenges finding a press, this was right after the dot com bubble had burst back in 2001, and so you know, it was just scholarly publishing was in a bit of turmoil at the time. And at the same time that that was going on I had a blog, and I was you know posting there frequently, I was writing with friends I was having lots of really open discussions, and I started thinking well what would it be like if scholarly publishing looked more like blogging? What if that kind of energy and that kind of open communication were a part of what we did with journal articles or with books or with other kinds of serious research outputs and that thought process sort of led me a little at a time into recognizing that there were all of these other folks who were working on thinking about some of the problems in scholarly communication and particularly around open access around finding ways to make sure that the products of scholarly research are more openly available to more people.
Sara: That’s fascinating because I think of this podcast as one of those types of outputs where it’s scholarly and yet openly accessible. The only differences folks can’t really communicate back with us, and I do occasionally get the e-mail or two from fans saying this is great, but one of the projects that I was really fascinated with is that you’ve been involved in the open peer review process, and I think that’s a really cutting edge issue can you talk a little bit about your experience with that and why you thought it was useful?
Kathleen: Yeah absolutely so coming out of that experience with my blog and recognizing that there were all of these people that I’d been in communication with who had really contributed to the development of the ideas that went into my second book, Planned Obsolescence, I realized that–you know—the book needed to go through a peer review process, but those were the people that I wanted to hear from. I really wanted their input and I recognize that there were a lot more people out there that I could get really important feedback from then just, you know two or three anonymous reviewers who would submit traditional reports so I had a conversation with my editor Eric Zinner or at N.Y.U. And said, you know I would really like to be able to open the manuscript up online and to get comment and feedback from a wide range of people. And I think the press at first thought that this was a crazy idea. This doesn’t make sense, why would you want to do this, you know, I don’t know if this really counts as peer review, so the, alongside the open process, submitted the manuscript to traditional reviewers, and I opened up the manuscript in comment press online so that anybody could comment, you know at a paragraph by paragraph level on what was going on in the text. And I ended up with forty some-odd readers who left hundreds of comments in total, and who most interestingly, really engaged with one another in the comments, right. You know, I would see people disagreeing about a particular point, or amplifying one another’s points, and that really helped me understand what it was I actually needed to do in the revision process so the conclusion to Planned Obsolescence, which I hadn’t written at that point, focuses some on comparing that open review process with the traditional reviews and thinking about what the strengths of each of them were and how we might work toward developing more open peer review processes that allow for that kind of feedback in a more dynamic way.
Sara: So was the publisher concerned also that folks would be reading the manuscript before it was published, that it would be less valuable, so to speak, in their—you know—output?
Kathleen: Yeah absolutely, I mean they were they were quite concerned, and I think to a certain extent with reason that the open version of the manuscript online would wind up cannibalizing sales, right? That people would say that that was enough and that they didn’t need to go buy the book. In fact, what it did is, you know, a lot of people got brought to the book by the open review process or, you know, they Google it and my manuscript, the online version comes up they read some of it and then they think, you know what, I actually want to sit down with this in a quiet place. I want the print version—they go off and buy the book. So the open manuscript online actually wound up driving sales rather than cannibalizing them.
Sara: And I think that’s a similar argument that I’ve heard within our institutional repositories where a PhD student is kind of afraid of putting their work in the institutional repository, but that actually can serve as a marketing tool to get people interested and especially since their PhD dissertation is not going to be the exact same output as their book.
Kathleen: Absolutely. Most editors will say that there’s a great distance in terms revision and rethinking and really transformation of what was a dissertation into the thing that becomes the book, but they also note I mean a lot of editors that they find material online that they think, oh we want to develop this into a book, so we want to work with this author, and so it does become a sort of a means of promoting one’s work to have those early versions available online.
Sara: Did you feel as an author that there was any less, I guess, strenuous review going on in the open review process? Because I know that one of the qualms with it is that it’s not as serious as an anonymous review.
Kathleen: You know I don’t find that. I’ve now opened my third book online again and so I have two different book projects that I’ve done this with and in both cases the online reviews have been very serious and they’ve been very…I’m not sure what the word I want to go for is… it’s not pointed in a negative sense, but really quite critical. I mean they have really pushed me on making sure that the points that I’m making are really the points that I intend to make they’ve directed me to places where I’ve missed things and they’ve I mean they’ve been really quite helpful. What they haven’t done is been dismissive or undercutting, which anonymity allows for, right, in ways that having signed reviews—and I mean in both cases, with both books, I didn’t ask reviewers to sign their names, they could have given a pseudonym, they could have done anything they wanted to, but they chose to sign the reviews, they chose to be who they were in this, because they were in dialogue with me. And there’s something about the fact of that direct dialogue that I think makes the critique that is contained in those evaluations more… trustworthy, more… I understand how to take it, right? I know how to interpret the comments that are coming to me. That having been said, what I did find in the reviews of Planned Obsolescence—when we had the open process and then we had the two traditional reviews as well—was that the traditional reviews, they do something structurally different, right? Those reviewers are asked by the press to look at the entirety of a manuscript, to think about it structure, to make sure the chapters are in the right order, that the arc of the argument makes sense. And there’s a way in which the open review process focuses readers on the local point more, so that they’re responding to what they’re reading right at that moment—it becomes harder to get that holistic view of the manuscript. So it’s more a different function that they serve, rather than a different level of critique, I think.
Sara: I wonder if that could be solved though, if they were also asked those similar questions at the end.
Kathleen: Absolutely.
Sara: So I’ve also, in serving as a peer reviewer, been given a different view based on the questions that I’m asked.
Kathleen: Yes, absolutely.
Sara: That’s a big driver—driving force for the reviewer is, “What do you want to know?”
Kathleen: Right! Exactly, exactly we did… We, being Mike, my colleagues at Media Commons and I, did a study of best practices for open review processes for a range of different kinds of publications and scholarly communication communities and what we finally determined was: there is no one specific set of best practices that we can recommend, except that the community has got to sit down and decide what they want out of the review process, and how to create a process that fits what they want as the outcome. So yeah, asking those questions is the key to the whole enterprise.
Sara: But I do like the idea. It sounds like there are a couple things going on there. One is, you’re getting more of the line by line/I don’t understand this particular point, which you miss a lot in peer review, and also you’re getting the opportunity for a dialogue among the reviewers which you completely miss in peer review, which if you look at the Association of College Research Libraries, one of their most recent information literacy guideposts is, “scholarship is a conversation.” Right, it’s not just me telling you something and enlightening you and going off and doing my own thing. I mean, the whole thing is that we’re conversing among scholars, and peer review that’s open seems to be at the core of that.
Kathleen: Absolutely and that dialogue is really the key component for me of the open review process it was great having more readings and more perspectives and getting a sense from more comments of how I should move forward with the revision but it was really, really important to see commenters talking with one another about particular points, backing one another up or disagreeing about a point, to really—you know, instead of getting two utterly isolated readings that might say completely orthogonal things about the manuscript, instead seeing that they were in dialogue really made a huge difference.
Sara: And I love your point about the, I guess, “respect” that was shown with having to—not having to sign your name, but knowing—first of all, they know who you are, often in peer review, you don’t know who the author is because they’re double blind, but they’re also willing to say, “I did this review.” And I think that that does lend some credibility to what they say, and also some just professional-ness. I feel like sometimes the reviewers can just get unnecessarily harsh. Maybe they’ve suffered from a bad review, or who knows exactly what their motivation is, but I don’t think it’s really useful to get, or to receive, or to give such a review. And, you know, to keep some of that kindness in in the review, I think it’s better for everyone.
Kathleen: Absolutely, I mean to recognize that we are in a community, and that as a community what we’re trying to do is produce more, better work, right, rather than to tear one another down seems really crucial. Yeah and I do think as well that that ability to represent the comments as having come from a particular reviewer actually matters, that it’s not just a matter of knowing that this particular reviewer who I trust said something that was important but also that I as the author am now able to give them credit for that idea that they brought me to. So in the revision of Planned Obsolescence and with the new book as well, I’ve made a point of really gesturing toward those reviewers who gave me ideas out of their own spirit of generosity that really changed the way that I think about the argument that I’m making.
Sara: That’s a really interesting point and it just got me thinking about the copyright of all of this, because in double blind peer review you really can’t give anyone credit for their points because you don’t know who they are. There is no way to cite that peer review. Anonymous peer review number one! Right? You can write that, but then their open response, they have—they own that response, they have given you that content and now you are able to give back and cite that, and it’s just the symbiotic relationship. I think that’s a beautiful thing too.
Kathleen: It really is, and the thing that I would love to see scholarly communication working toward is a system in which that kind of work of reviewing not only is credited in my citations in the revised version, but is actually credited as part of your original scholarship—that you as a commenter have really contributed to these projects in ways that are just as important as your own original articles and manuscripts.
Sara: Well speaking of that, and this brings me back to the Elsevier lawsuit that just came out, Elsevier has recently sued Research Gate, and I have a longstanding (kind of) dispute, I guess with Elsevier in my own heart and mind, but you’re talking about giving credit for that review. So often the work that we do as board members of journals, as peer reviewers of journals as authors of journal articles, is completely without payment, without compensation, and without credit now. As an author we can put it on our C. V., but we’re not getting paid by that. The people who are getting paid are the big corporations and so, is this one way that we can kind of take ownership back our work?
Kathleen: Absolutely! And to say that, I as a reviewer, I’m going to put my effort, my labor into work that is open, that is part of this community. I am working on building this community rather than contributing to a journal that is taking labor out of the community.
Sara: And it’s hard though. I’m a board member on a board of a journal that is open access—completely open and everything is cited “cc-by,” The Journal of Copyright in Education and Librarianship—and it’s a wonderful journal, but it also has funding needs, and there are no subscriptions. So one of the really big issues driving the open access movement is funding. How do we continue to support this type of work when we do have big publishers out there and they are subscription driven?
Kathleen: This is an enormous question and I think it’s one that’s going to get a lot of attention in the next year plus as more and more folks who have been working on open access are now starting to think about sustainability questions and how we build scholarly communities that can be self-sustaining. There are lots of projects that have come at this through community supported architecture that are really attempting to think about how the academy can come together and support itself in producing this kind of work. So you see something like Open Library of the Humanities, where all of the journals are open access, but also do not require author payments in order to publish. They’re supported by the libraries that make contributions, that support the network as a whole, recognizing that it’s a shared common good. I think we’re going to see more and more projects like that. There is an initiative that is in development right now that’s really looking at the ways that libraries are contributing to open access and getting libraries to think in a really conscious way about how they’re supporting the kinds of publications that they really want to see take root in the world. So there’s a lot of work to be done around this, but I’m hoping that the next couple of years will bear some fruit.
Sara: I hope so too, because I do see the struggle even in my own work, where I’m trying to get—you know, I’m asking for people to give money towards this worthwhile journal and the response is often, “But there are other open access journals and they too want funding, so how do we decide? And we also have all the subscriptions we have to pay, and so the money’s tight.” And I guess in my ideal world if I were dreaming, and I could just wake up and say, “Ah-ha! The libraries now own all the journals, and they’re all open access!” That would be my dream world where we just shift the dynamic, and we just say, “We’re done Elsevier. We’re just done Springer Nature. We’re just done. We’re not giving you our money, we have created these other worthwhile goods that we are—we’ve produced the labor.” It’s almost like a cooperative grocery store kicked out the corporation and we own our own show, but getting there is not easy.
Kathleen: No, it’s not, and it’s going to be a process of transition but I think there’s some really great folks who are working on thinking about how libraries can support that transition and thinking about how we can work with scholars to get them to recognize that it is in their interests to think differently about how they’re making choices about where to publish, how they’re making choices about where to review and how they’re contributing their labor to the process of scholarly communication.
Sara: And I’d really like to see promotion and tenure dossiers value open access publication and value, like you said, peer reviews. I mean we do—right, we’ve done a peer review, but it’s usually pretty low on the totem pole of what we have done, it’s a service item, and it’s like a line that gets just moved over very quickly. I think raising the profile of that work is really something that is a novel way of thinking about it, and I also think of—you know—who’s doing the work as I think of service and I think a lot of women who are professionals and professors end up doing a lot of service. I know I do a lot of service. I don’t know if I’m talking about other women or just myself, but—and I enjoy doing it, but a lot of times it’s just thankless work, right? And so to have that and say, “This is not—this is the service of scholarship, but it’s really important.” I’d love to see that, the profile get raised.
Kathleen: I completely agree and I think that we have to really approach promotion and tenure standards in a way that encourages us to think about contributions to the community and that can be the community of scholars, that can be the community of students, that can be the community surrounding our campus, but that all of the work that we’re doing—the things that we now separate out into research and teaching and service—are all in their ways contributions to community building, and understanding that as being the root from which everything else grows can help us transform those processes from ones that value exclusivity and prestige into ones that value connection and communication.
Sara: Wow that’s a really powerful message I just I hope our dreams come true.
Kathleen: Me too!
Sara: Because that would be a world that I could get behind, I would feel like, “This is my thing.” You know academics are our caring for each other and we’re community and we’re propping each other up instead of trying to shove each other down to get into Springer Nature or what with our firstborn child. So I definitely think that’s a good goal. Well thanks so much for visiting with me today, I know you have a busy schedule and I look forward to hearing more from you, more about what you’re working on, and I hope that we’re able to make this impact in the future, and if folks are interested in other work that you have I’m going to put some links on the bottom or at the top maybe on this blog. So, I hope that you all tune in and get in touch with Kathleen if you want to be more involved in open peer review.
Hello, and welcome to a very special ALA edition of copyright chat, recorded directly from the ALA annual conference in New Orleans Louisiana. Kyle Courtney is our guest today, and he is the copyright advisor for Harvard University, working out of the Office for Scholarly Communication. He works closely with Harvard Libraries to establish a culture of shared understanding of copyright issues among Harvard staff, faculty, and students. His work at Harvard also includes a role as the copyright and information policy advisor for HarvardX. His Copyright First Responders (CFRs) initiative was profiled in Library Journal in 2013 and he was named a National Academic Library Mover and Shaker in 2015.
Sara: Welcome! Today, I have Kyle Courtney with me in the beautiful New Orleans, Louisiana. We are here for the American Library Association annual conference and I was able to get a few minutes of his time. Amazingly, I’ve been chasing him around for quite some time trying to get him on the show so welcome, Kyle.
Kyle: Thank you, that’s not true by the way.
Sara: We do like to heckle each other so it will continue. So, Kyle I wanted to hear a little bit about your fair use evaluator project. I know I had signed up and I was getting text messages of fair use scenarios and giving some opinions, “Is this a fair use? Yes/no.” And I wonder what has happened with that and what’s it all about so please tell us.
Kyle: Sure, absolutely. So the whole foundation of the project is that we want to expand fair use knowledge further afield than just the experts that are in libraries and lawyers currently. The idea is that more knowledge about fair use is a benefit to society in general, are to scholarship etc. A citizen should know what rights they have especially in this day and age when they’re engaging with technology much more than usual so the concept was could we create a decentralized network of experts that could receive questions from the public at large and get answers about fair use so in order to do that we had a pilot at least of the program and the Knight Foundation generously granted us as part of their library news challenge to create a system (a pilot system, so to speak) that would send out every day fair use hypotheticals that we had gathered over the years and get votes on them, basically forcing the narrative to “yes or no.” A lot of the times lawyers and experts will answer, “It depends.” I mean you’ve done it, I’ve done it, so conceptually how they felt, even if they’re sixty, forty, you know that you’re more than likely to be fair use—something along those lines. So the idea was to measure this in the pilot and also play with the technology for the first time.
Sara: So, that’s interesting, because I thought (now this is a misunderstanding, I suppose on my part as a participant) that the idea was maybe we get a consensus of experts, and then you can kind of map out like on a spectrum you know “these things generally are fair use,” “these things aren’t,” but your goal is to actually have, you know, every day folks be able to reach a bunch of experts to get a consensus. Is that the idea, or?
Kyle: That’s the end goal. So what you talked about there, first, was the result of some of the data that we didn’t anticipate getting, but that was very helpful. So the first few days we sent out some real obvious “yes” or “no’s” to kind of get a parameter, and then we went into more explicit kind of fair use scenarios that are taken from the news, or case law, or actual questions from the Copyright First Responders network and those were harder, but it’s still gave us a measurement which I think was interesting, so the outcome of the data was just a bonus for this and we’re actually doing this with— So that the Knight Found. Grant was won by myself, Jack Cushman at the Library Innovation Lab and at Harvard Law School, and Katie Ott who’s now a reference librarian at Stanford Law. And we got all this data, and so we want to do something with the data too, because we had all these experts that were agreeing, so every day they got a scenario and they voted “yes” or “no,” and we’ve never done that before, and I think—amongst our group, amongst our experts—and so we got some data, but ultimately again that idea behind here too and thanks to the Knight Foundation kind of extending this pilot we learned a little bit about how we might make a public facing version of this. We’re certainly going to expand it to a larger audience. We had to (for technical reasons) keep it to approximately thirty, some were picked by me some were picked by other folks on the project, and the idea is—could we scale this up in some capacity, because the technology that we had on the back end that sent texts every day, we learned about that. In fact some of the first couple days were a little rocky, because when you send the same exact scenario out over from one text number, it sets off every one’s spam detection. And you know, we were looking like text spam at some point, so we had to then get individual numbers. We had to learn about the technology in doing effective crowdsourcing. Now, crowdsourcing a law is relatively new, but we thought fair use would be a good test-case. I think all of copyright would be interesting, but certainly fair use because of those factors as hypotheticals, the factual nature of this, but more often than not, we did get some good results from this which we’re turning to, but then again at the same time we’ve got some typical results. Whether or not fanfiction is fair use based on the hypothetical we laid out was almost split fifty-fifty. Same thing with some of the cases we had for online learning and usage of film and stuff so it was interesting to see that the hard ones still remain hard even amongst experts, but remember we’re not necessarily looking for legal answers for crowdsourcing this, so the public gets educated about this, so that if we have a question that could be in the form of a drop down box or something—they give us as much factual information as they could and then ask, “Hey you think a court would find this fair use or not” or “Do you think that you, personally would advise somebody that’s fair use?” And I think that would help them, and then if we—if it’s a “no” by 1% or 2%, we actually want to build in some educational links, so places where they can go and learn about why it’s more gray—you know—than the simple “yes” or “no,” but also for those ones that were nearly 100% “yes” or nearly 100% “no,” there’s learning there too to be had and to build in some kind of analysis in the—in the thing that says “why,” would be interesting—point to a case, point to a statue, or have a page that serves in the texting area so again we’re experimenting with that. Ideally the public types in the question, a random group of thirty to sixty experts get it, they vote, it takes them—you know—five seconds to vote, most of them did it in the morning, some of the afternoon, and within twenty four hours, you get some sort of result. We think that would be helpful to help “myth-bust” anything about fair use that’s out there, and maybe if that expert felt like it, they could add a sentence or two if they had the time. You know the texting format as a device of sharing knowledge—you know—we make you know emoji’s and “I’ll meet you there” and all that, but what if we could—you know—reach people that way in learning about fair use that would be interesting.
Sara: I think the ability to add a sentence or two is kind of key, because in those, a lot of times, people don’t ask the easy questions right, I mean folks.. folks know that they can do this, that, or the other for teaching, or you know “make one copy of this,” but when they get into those tougher questions, those are—that’s when they’re wanting the help and that’s when it’s harder to say “yes” or “no” and you want to be able to explain yourself right.
Kyle: Yeah, yeah absolutely and one of our experts was, Nancy Sims who—you know—she tweets just blocks of stuff, and I don’t think it’s a secret, because she tweeted out you know “O. M. G. this ‘Yes/No’ format is so hard!” I would consider her, you know, an expert in our field of about spotting fair use. But again I think again, forcing that analysis, putting our thumb on the scale so to speak, and saying, “Look if it really came down to it do you really think it’s a fair use or not. I know it’s against the ethical norms right? Or at least the practice that we all do or no we’re never going to tell them “yes or no” unless it’s an absolute slam dunk. But there’s learning in the fact that you can say—hmm, more often than not…the extra—We didn’t want to add the extra right away, because I didn’t want people to start to, you know, put a small appendices on their “yes or no,” you know, that you know—lawyers can text all day, couldn’t we—you know, we used to be paid by the word, but now we write—you know—a lot all the time, so that ideas that I didn’t want to give them room (this includes yourself because—because you were an expert that joined us) that idea that like, however—you know—“yes, but there are,” “however,” or you know, “it depends,” but I said, “yes, here.” I didn’t want that. I wanted the real, honest, “yes or no,” and I think the public would understand that better.
Sara: Well also that that leaves you know the question of where we’re going to have a pretty big disclaimer, right? Because I’m happy to say, “Yes this is a fair use,” all day long, but in my day job as a copyright librarian, I am not allowed to do that.
Kyle: You know we had a you know we had a great clause, we had made up for the future (obviously this is not publicly accessible quite yet), but that idea of like “this is an information site, this is information only, this is not legal advice—you know—seek your own legal advice, seek your own counsel.” A number of websites in our field have that, right? That’s kind of standard language. So if we ever do have this public facing dream, certainly that would be part of it, and that this is information service only. But again, much like a lot of law librarian practitioners, you know, and you and I have both worked with many law libraries in the past, they can provide information without practicing law—right, you know—they’re walking the line. I remember learning that in my reference class. You know, that idea that you could work in a law library, and provide people with what the law, is the information, etc., and that’s why the anonymity (which we didn’t get to) was a critical component of this. So, no one was identifiable, it was all—you know—it was names of animals you know.
Sara: I had a hard time even identifying my own answers, ‘cause I got some—I got some animal name, they said, “This is your name” and I forgot. So I was looking at the results and saying, “I wonder what I said to this?”
Kyle: Yeah, Yeah I think I was, “A. Aardvark,” because I was the first one, but that idea is that we didn’t know who was what and that was critically important, in fact that’s why a lot of people agreed to sign up and not be named. Certainly they could say I participated, but they did not—we could not track their answers, and we didn’t have their phone number aligned with their name, so we’re very careful about that obviously. So the anonymity allowed these experts to then really weigh in (as you said) as they wouldn’t in their day job, and I think that gives us another leg up on this thing actually maybe working in some capacity. You know anonymous legal counsel is kind of an interesting thing, but this is anonymous myth-busting of fair use, and you know tying what a artist, or a comic book writer, or web developer might do to the fact that they don’t know enough, and could they have this pool of experts instead of—you know—paying three hundred an hour—you know—up front, maybe they learn it on their own and do this. You see this on You Tube and everywhere else all the time; people are learning and asserting fair use.
Sara: That brought me to a thought about, when you were talking about saying “yes, but” or “it depends” and all of the hemming and hawing that we like to do as lawyers. I thought about that and I thought, at the end of the day the judge has to decide a clear “yes” or a clear “no.” They don’t get to say, “it depends,” and so I think what we’re doing is predictive analysis, right, of “what would a judge do?” And a judge doesn’t get to—you know—sometimes they get to kick it back to the lower court, right, and they say, “well it’s a fact question blah blah blah,” but you know assuming that they’re making a decision on fair itself, they don’t get that—you know—that hemming and hawing ability so…
Kyle: No, no, and that’s you know how the system works, right? So it’s a decision has to be rendered at some point, you know. Again, I like that idea of predictive analysis, or we’re getting ahead of the court case. Of course, I wish no one has to go to court for fair use ever, right? I honestly do. I wish, you know, we could have fair use to be used as it’s intended to be used—X. Y. Z. and not battle over it—however, those battles have helped us determine the scope, especially in the modern technology century that we’re living in to be able to do more than we had in the past. But again, yeah, there is no true yes or no from attorneys, but there is true “yes or no” from the courts and those decisions allowed us to lay a litmus test for what we think can be done. So if anything, the experts were drawing on their capacity as information professionals about copyright to then risk mitigate for the question, determine the “yes or no,” and then share that anonymously. I think it works well and at least we had a very high response rate we had very few dropouts. Even people were doing on vacation (which I would never ask, obviously), but the fact that it was very simple, a “yes or no,” usually in the morning—you know—via phone (which they’re already on anyway) added to the success rate. I remember Jack, which was like really like, “We had an eighty-something percent response rate every time.” And that’s kind of amazing that we had that. And I think that could carry over into the next version that we’re doing, which we’re trying to expand upon, hopefully, you know. It’s well into summer here, and we’re—you know—it’s one of those things where time slips away, certainly fast for both of us and Serena. But, I think this has enormous value, and so that’s why I think the Knight folks have no problem with extending it. Plus we’re pretty cheap, everyone—you know—was a friend or colleague and volunteered their “yes or no” for thirty days straight—you know—was just all of August, right (if you recall, was only for thirty days) and additionally the software wasn’t really that expensive, and Jack and his team and Katie did a great job in coding and making it work and get over the technical barriers, so I think it’s cost efficient too, so we get a high value for—you know—learning and understanding fair use for a relatively low bar for time and cost
Sara: I think it’s fabulous project. I was really excited to be involved in it and I’m excited to see where it goes. What I’d love to see, and maybe you already are considering this, is after the project continues with actual patrons or users, asking questions or the public in general, that at some point we have kind of or an article written up about a synopsis of like, “here’s what we’re finding,” right, with all these questions and answers, like here’s some summaries of all of that what experts think about fair use.
Kyle: Yes… So, you know once we start getting the data then we look at it we’re like—wow, this is, we should harness this in some capacity or do something with it! Yes there is a woefully neglected draft that we’ve shared amongst ourselves from the previous time and we revisited it a little bit this year during the fair use week symposium at which the Knight foundation also let us talk about this project and sponsored some of that regard. So we were excited to kind of reintroduce ourselves to the project like, “This was good! Why did we write this up?” So the plan is to write it up, and to kind of forecast on where we see this thing going, and then actually the article would be the road map to trying out this thing which might be public facing. Although, I think at first, we will do much like we test it with the experts will do a “test public” so to speak, and it will select—you know—a dozen or so people to do this. The interface is what’s critical there. So, certainly the thirty days of fair use scenarios we did, we chose for reasons that are pedagogical (if you will)—you know—easy ones at first, then harder ones, and thematic then we actually by the experts submit some. And we made them so that they could be answered “yes or no,” right (so we had to, but to cull them and edit them a little bit), but it worked—it worked well. If we got just a straight text from the public at large—you know—that would be tougher because—you know—like the reference interview you wait to the last question to really know what they’re asking, so, we were thinking at the time period of—oh, maybe a drop down menu and they select a type of medium, type of use, type of thing, and then they put in the facts necessary and they put in the data or something. Something where we could then craft that or maybe could be automatically crafted (we’re not sure) into that tight little hypothetical that we had for you every day during those thirty days in August.
Sara: You know, I’m thinking you’re going to involve some crafting there, yeah probably not automatic, because also, I’ve had that experience, with a kind of copyright reference interviewer where you know, they have a question and they don’t even realize maybe it the copyright question, someone else identifies it as a copyright question it gets to me, and then I have to identify exactly what they’re trying to do, what they’re—you know—what their real question is so it’s a lot of culling.
Kyle: So that’s why we thought the—with the—when we first pitched this with the Knight foundation would the libraries be the medium interactor between the public and the experts? So it comes into a library, because—you know—that’s the whole idea behind this was that—jeeze, libraries—if they don’t have experts like us on campus—you know—or are still getting copyright questions at the front desk, or the circulation desk, interlibrary loan, you know the reference, to special collections, technical services, so what if they could take in some of the public’s questions (cull it maybe, because they’re information professionals, often language professionals), and then dump it into our system and then they can get a direct response. So maybe that culling is done by librarians and information professionals that are receiving his questions—that would be helpful, because we—they’d be more likely (especially if they’re trained on the system) to know what quick facts, what quick summary, and what information would be needed to make a successful “yes or no” hypothetical.
Sara: I think that’s right, and I think that might be the way to go, but it will be interesting to see how this develops going forward. And speaking of the reference desk, ILL services—copyright is everywhere. You and I know this, and I think more and more libraries are realizing this, because they’re hiring more copyright specialists, but not everyone has the funding to hire someone specifically to do copyright, and so I’m really impressed with your Copyright First Responders program. I wanted to give you a chance to kind of talk about that for a minute. What is that about? What’s the goal? Tell us all about that..
Kyle: The goal is to put myself out of business. That’s the goal—that idea that my brain gets shared with the world over time drastically. But, no, for real the same problem that I just outlined like libraries are getting copyright questions, it doesn’t matter what type, where they are, or what department. We, five years ago, did the first cohort of the Copyright First Responders, which again was decentralized expertise across the libraries at Harvard for answering frontline copyright questions—again finding the absolute green lights in some area, understanding better about public domain and copyright and fair use and section 108 libraries and archives exceptions, you know specialized training, because we think the librarians that are at the front lines are in the best position to answer questions from their community. So I’m not an art librarian, I’m not a photo librarian, I’m not an archivist; those folks know their communities best, they know the publishers, they know the databases, they know licenses, they know the practices, often they know the materials, or what the questions are going to be asked about the materials. So they’re in the best position, and half of them have masters or PhD’s in these topics, so why not just layer on copyright expertise on top of all the expertise they already have, and they’ll be in the best position to answer that and that’s that frontline. The triage is the next level—you know—folks like you and I, that are there to kind of answer the harder ones, but the harder ones also serve as a methodology of teaching, and it seemed to work at Harvard well. And then I was invited to—you know, kind of the “Johnny Appleseed” of Copyright First Responders—go to other places in the United States. Now what was interesting was I didn’t foresee it working elsewhere other than in this school with—you know—most libraries. However, I just returned from the Pacific Northwest, where we did bootcamp-style Copyright First Responder sessions and the Orbis Cascade Alliance (which is a consortia group of libraries across multiple states in that region) won a grant to bring me out to do this. And so they founded the Copyright First Responders Pacific Northwest. They have a logo and everything, just like we have a logo and graduation and patches and all the fun stuff that comes along with completing this. They have set up a regional version of this, which is very exciting. And so, much like the Copyright First Responders Harvard, they have a tiered structure, they have a closed list serve in which they can talk about stuff and they can learn, but what’s really interesting about the difference between having a single school—a single school can have a policy, right, and so we can come up—you know—five years Copyright First Responders, we know where the good green lights are, we know what our community feels like. However, Orbis Cascade Alliance and the Copyright First Responders Pacific Northwest are all at separate institutions, so they’re sharing what they’re doing at their separate institutions and they may not be the same, but certainly that’s a great learning and valued experience and in that they’re working this particular topic—copyright and that they’re sharing. Oh, “here’s how we do our stickers on our printers. Here’s how we handle certain pages request. Here’s how our digitization,“ you know “search for the public domain.” Some are more like, “Oh, now we finally can talk about fair use in some capacity.” So they’ve all had gains and so far it’s going very well. So shout out to the Copyright First Responders Pacific Northwest, other schools, and consortia who have had interest. I did one here last year in New Orleans, they wanted to do a citywide copyright first responders, and I mean I’m actually here talking about that with people now that I’m back in town so that would be interesting because that was a collaboration of museums archives and libraries in New Orleans that needed the same help as everyone else. So I think the model works: decentralized expertise across a series of places, and I think the tear model helps, and I think the closed network of sharing information helps, and it all helps the learning. Again, this is what it’s all about—teaching, learning, and then making those communities myth-busters so to speak on—you know—they’re still out there—yeah, every place has the same questions—you know—thirty seconds, automatically fair use; thirty-one seconds, automatically infringement. Yeah, “where does that come from?” You know, I would try to track that myth, but that idea is that just some of those basic things and “have you talked about this recently?” You know, sometimes you still need the basics—the 101’s are as critical as anything, because that sets the tone for the more advanced questions. So again, this Copyright First Responders network, I believe is working so far and will continue to spread, so coming soon to a place near you, maybe.
Sara: You have—do you have like online repository too?
Kyle: So what.. we don’t yet, but because we have so many starting up in so many different regions, and people are talking, I am booking in 2019, already well enough to come and do this. Emily Kilcer, who was project coordinator at the O. S. C. where I work, and myself have written a “best practices to forming a copyright first responders group” up it’s very informal, but it’s just like stuff we’ve seen and run into. And now that I’ve done this regional one, I’ve gone back to edit, because of course I was assuming, “Oh, at a school only, or a place with multiple libraries in the district” but now I want to—you know—put in pointers for those that want to do it in a region. Most recently, the State of Rhode Island had been to a similar boot camp down there and wouldn’t it be interesting, we were talking, about having a statewide copyright first responders? And again, these are things I had not considered before and that’s why I think—I think the model works, because it’s adaptable—you know—everyone’s going to choose their own. So we’re hoping to release this best practices guide by the end of the summer and make a place where all this can live and people can cooperate and collaborate, maybe. Wouldn’t it be amazing if all of these regions and schools collaborate on a really big…some kind of mega-listserv or website? Now, it’s down the road a bit, but certainly I don’t think it can harm anyone. If anything, it could serve as a source of more education in our reach. As you know, we can never get enough, right? I think every time you and I go to a place, and we lecture, if it’s a small class or a large conference, there’s a gain for our community in that.
Sara: Well I’ve seen at least part of the Copyright First Responders program first hand. Kyle came to the University of Illinois and talked about fair use, and I couldn’t get the librarians stop raving about it. I said, “I’m here, let me talk next time!” They said, “We want Kyle back.”
Kyle: But, you know what, however you have saved me, because the data you pulled from that actually proves that I can teach people, because the curve went up, right? They actually learned.
Sara: Exactly. Yep. Everybody learned.
Kyle: Yes, yes.
Sara: ….and it was—and it was very empowering for people, so you know I highly recommend Kyle’s program. If anyone has questions, you can reach out to him. He’s a very friendly guy, he’s very busy (very, very busy).
Kyle: Not too busy though to talk the good stuff
Sara: Yes that’s right, that’s right. So, Kyle thank you so much for talking with me. I really always enjoy talking about copyright with you, of course, and I look forward to your projects now and in the future.
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 another episode of copyright chat. Today I have with me Carla Meyers. She is the assistant librarian and coordinator of scholarly communications at Miami University Libraries. Welcome Carla.
Carla: Thanks Sara. I’m so excited to be here.
Sara: Carla –I really wanted to have you on the show because I know that you are the mastermind behind some wonderful conferences on copyright including the Kraemer copyright conference and I know you also have developed another conference at your home institution of Miami University Libraries. We’re talking about Miami Ohio not Miami Florida for those of you who are wanting to get to the sun. There are some sunny days in Ohio, too. And I know that you are planning a music copyright conference which I’m really excited about so I wanted you to talk about the reason you developed these interesting conference opportunities.
Carla: Sure, so I think the primary reason is to help get good quality copyright information out to the library and educational community. When I first started working with copyright about fifteen years ago I was told go and learn about this—to make sure the library practices are in compliance with copyright law. So, I started looking around online and I started looking in books and it took me a while to realize how much bad copyright information is out there. And one of the places where I first found myself engaging with really great copyright information and really great presenters was the Ball State copyright conference that Dr. Fritz Dolak coordinated for Ball State University for about twelve years I think.
So when I went to Colorado to take a librarian job there realizing that it was hard to get back to Indiana to attend that conference or that other people in the West might not be likely to travel there I asked my dean at the time Terry Switzer if we could create something similar for people in the West and she supported that idea and it took off. So it was a combination of wanting to make sure people could get connected with good copyright information, but that we could also connect them with the presenters who are putting out this good information or with other people who are struggling with those frontline issues and dealing with copyright.
Sara: That is really a wonderful idea because copyright literacy is so key to information literacy especially in the digital age and I really appreciate that myself teaching and iSchool course to young enthusiastic librarians and information professionals So, what do you see as what are the challenges with providing this information at these conferences.
Carla: So I think one of the challenges can be people getting there. We all know that librarians tend to have very limited travel budgets. Kraemer is established in the West it’s off and running I hope it continues to go on for a long time. Coming back to Ohio, unfortunately Fritz Bolak retired, which I’m very happy for him, but unfortunately that meant that they discontinued the conference there for the time being. So that’s why we looked to resurrect a conference or to start a conference here at Miami University to help fill that void for people on this side of the Mississippi. So hopefully they could afford to travel here. But I think also something too is just connecting with the information the valuable opportunity to hear directly from the presenters and to ask questions of them. For both conferences we do try to share as much of the presentation materials online as we possibly can, but I think there is a very special value added in sitting in the audience asking questions as they come up and sharing the situations that we’re dealing with at our institutions and getting that presenter expert feedback on that or again just even the value of connecting with other people who are doing this and starting to develop a network of people who are knowledgeable about copyright who are struggling with the same issues who that these librarians and educators can reach out to to get information or advice on what to do when they have a copyright issue.
Sara: I think that’s so important—that live feedback that you mention—I also really appreciated that the Journal of Copyright in Education and Librarianship made a special issue of the Kraemer conference last year. I was fortunate enough to be able to be a recorder for one of those events and I think that also provided a huge service to those who could not attend because they could still get a lot of the information. So, have you considered video recording or audio recording of the presentations at these conferences?
Carla: Yes, we have considered it for both conferences. I think the problem we run into is unfortunately finances. So, one of the hallmarks of the Kraemer copyright conference in Colorado is that there is no registration fee—again trying to make it as affordable as possible—we have wonderful sponsors who help us cover operating expenses so participants have to just get themselves there. We did look into what it might cost to audio record or video record the sessions and unfortunately that cost too much money to get it done professionally in order to help support accessibility and get it transcribed that it’s something we just couldn’t work into our budget. At Kraemer we continue to offer the conference for free which is one of the reasons we decided to do a conference issue of JCEL last year so that we could have those write ups of each session and our contributed papers so that people could access the information that way. It’s the same situation with Miami University. We’ve had requests to record. We’re very interested in doing it. We’re just in our second year right now and as we slowly grow this conference we are looking at ways that we can integrate that into the process.
Sara: Well I appreciate that you have taken that into consideration and I know having been there at Kraemer what a wonderful experience it is to really be there and engage with all of these important people doing this work and also with educators in the K through twelve and college levels who are just looking to learn more about copyright. I think it’s so important to bring copyright literacy to the masses so to speak and that’s part of the reason I have this podcast is to be able to reach people far and wide and I’m so glad to have you on the show so that we could highlight some of these opportunities for learning and literacy that you are bringing to the public. But, also, I wanted to switch gears a bit and I know that you are one of the copyright librarians that I know that is not a lawyer as well many of us are. And I wanted to see if you would talk a little bit about that and what challenges you’ve faced and what you bring to copyright librarianship and how you would tell others to follow in your footsteps because I was on a panel at Kraemer last year where we decidedly said no you don’t have to have a law degree to be in this field. So, could you share your wisdom with other folks who are maybe considering this as a field?
Carla: Sure, and I agree completely with the conclusion of the panel there are many benefits to having a law degree but this job can certainly be done by not having one. And I think the most important recommendation I would have for people who do not have a legal background but are interested or find themselves kind of forced by nature for a boss to start working with copyright is a look around identify what are the reputable sources—who are the knowledgeable experts—and read everything you can to engage with quality information in every way you can and get yourself to any type of session or opportunity where you can learn more from these experts.
As I mentioned earlier, when I first started working with copyright I was reading everything I could find online and one of the first key resources for me was Dr. Kenneth D. Crews’ book Copyright for Librarians and Educators. I remember getting that buggy and not only is it very, very readable but Dr. Crews is one of the top experts in this field one of the top experts when it comes to library copyright law in the world. And so I knew it was a quality resource and it was written in a way that was very understandable and it really targeted the issues that had to do with libraries and educational institutions.
So I started following the work that he did when I attended the Ball State copyright conference I met other experts like Dwayne Butler or Kevin Smith and Donna Ferullo. So getting things they had written and following up on resources they had recommended. So using those people who are true experts in the field to learn about the law to identify what are other quality resources.
And then I think any copyright librarian whether they have a law degree or not will tell you that you never ever stop learning. Copyright law is so huge that there’s always some new part of the law to investigate or to learn about and there are also specialty areas like music copyright law—which is why Miami is that conference this year—which are so in-depth a large into itself that you’re constantly learning about it. And then there are always case law decisions that influence what we do as well.
So if you’re not an attorney or even if you’re an attorney who is new to the field of intellectual property or copyright I would recommend that you identify who are the quality reputable resources again all the access and information to them that you can. And then, especially if these responsibilities have been foisted upon you, I would encourage librarians to say to their administrators—I am willing to learn more about this, but I need the support from you in order to be able to do this effectively. Copyright X is another great thing that copyright librarians can participate in. It’s put out from Harvard I think it’s about a fifteen week commitment so saying to the supervisor I would like to do Copyright X. I need support from you to be able to prioritize time to actively participate in this. I’m willing to learn about copyright, but if you really want me to do this can we find funding to send me to the Kraemer copyright conference or one of the other copyright conferences that are out there so making sure that they are supporting you in that mission if they are foisting that mission upon you.
Sara: That’s a really great point. I think a lot of folks are kind of put in this position there are other folks who find out that they just love copyright. And even for lawyers—I have a law degree and a Masters a law degree but I knew very little, if nothing, about intellectual property law until I got into this position. And I had to learn on the ground from the experts just like you are describing. Just don’t be afraid to reach out to people. Don’t be afraid to ask questions. What I have found is that the copyright librarian community is so welcoming and so friendly and really helpful and not judgy at all. And so if you have questions you can always reach out to any of us, myself included, and just send usan e-mail and ask what are some sources I should be looking at or I have this question. We have a lot of forums like this there’s a forum through the ALA where you can ask a copyright question and many of us including myself and Carla respond to those questions. So it’s a great place if you want to ask in a less formal way, but you can reach out to people individually as well and I think people are really friendly has that been your experience, too Carla?
Carla: Absolutely I remember hearing Kenneth Crews and Kevin Smith speaking at Ball State and going back and processing all the information they shared and then reaching out to them and they were both so gracious and so willing to spend time with me to help answer my questions. And I would say that anybody who has been a copyright librarian has been where people new to this field once we’re starting off trying to learn about the law and trying to identify the quality information. And I feel very lucky to be a copyright librarian because the people I work with love what they do and to a person I think the vast majority of copyright librarians if somebody reached out to them and said, “Can you recommend some resources; can you help me work through this question; can I take some time to ask you about policy development?” I would be shocked if you got the answer “no.”
Sara: I would, too. And I just want to plug another resource that will be coming out soon—I’m editing a book called “Copyright Conversations” and one of my chapter authors Alison Estell is writing an entire chapter about how you can self-learn about copyright and what some reputable resources might be and how she did it and how she would recommend others do it. So there are there are a lot of resources out there including including Kenny’s book. A lot of friendly librarians. So, I really encourage you to get into this field it’s a really thought field and it changes all the time and so it’s never boring. Any other words of final advice for someone looking to get into copyright library and Carla.
Carla: Sure, I think be bold and remember our mission. I say be bold because I remember when I first started working with copyright I was scared to death that I was going to do something that would get the library sued. And you know as with any type of legal situation you can put yourself at risk but being bold in saying let’s step let’s use these exceptions in a law like fair use and the TEACH Act where they’re relevant. Let’s recognize there’s times when we need to get a license and let’s make sure that we’re remembering our mission. Let’s not say, “Oh we’re not going to offer a research service because we make it and Stead think about our mission is to connect our students and faculty our patrons with information how can we do that within the scope of the law smartly and you can find out that smartly part by reading the law in reading those resources out there by experts to help you understand how to apply to your institution.
Sara: That’s a great point and I agree completely about not being so risk averse that you are actually shutting down resources to your population because the mission of the library is to open up as many resources as we possibly can. And of course we want to do that within the bounds of the law, but a lot of times the law is misunderstood and that’s why copyright librarians are such advocates for open access and we have those tools that allow us to help others to be open.
I just personally wanted to thank you Carla because I have so much enjoyed the Kraemer copyright conference and I know that you are really the mastermind behind it and I know it takes you so much work to put that together. So just thank you from the community because I know you’re doing such good things for copyright librarians and those librarians who are new to copyright I think that it’s really important that we connect with the public and we actually disseminate this information not just among ourselves so I thank you from the bottom of my heart for that service.
Carla: Thank you and I will say it’s my absolute pleasure and it’s a little bit of a labor of love and part of it is because there are so many wonderful people who helped me when I was first getting started and so many copyright librarians like you Sara are some of the other ones that we know they continue to help me to this day. I see it as a way that I can give back to our community by helping provide these educational opportunities and helping people make those connections.
Sara: And I hope to see some of you listeners at Kraemer or at another conference maybe at Miami of Ohio. Or just reach out to us on email we’re always happy to chat about copyright and the name of this podcast thanks for being here Carla.
Peter Murray-Rust Explains ContentMine and the Open Access Universe
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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.
Welcome to Copyright Chat. Today we have Peter Murray-Rust, a researcher from Cambridge University. He’s visiting me live today in my office. Welcome, Peter.
Murray-Rust: Hi there. Thanks very much, Sara.
Benson: Thank you for coming. So you’ve done some really interesting work with open access. You’re kind of, I would designate you an open access champion.
And I think one of your most interesting projects, at least to me, has been your content mining project, and I thought maybe you could talk a little bit about that, what the impetus for it was, and what kinds of projects people can do with it.
Murray-Rust: Right. So more general than open access. I’m an open advocate on many fronts: open source for code, open data for experiments and other types of data that’s collected, open access for access to the literature, and always of reducing the friction from going from one place to another when we’re transmitting knowledge and creating value as people receive knowledge and aggregate it and filter it and so on.
Benson: And you are very passionate about this. I saw you speak at IFLA, and I remember distinctly you saying to folks, you know, who’s a student in the room, you’re the future of open access, and I thought that was really inspirational. So your content mining software, it’s an open source software, is that right?
Murray-Rust: That’s right, yes.
Benson: And what can people use it for, and what what led you to develop it?
Murray-Rust: Ok, so the software is developed for a technical purpose, and it’s developed for a political purpose. So the political purpose is that all published scientific knowledge should be available to everybody on the planet. So I call it liberation software, software whose job is to liberate knowledge, and make it to widely available, and the technical purpose is to be able to read any paper in the literature, and turn it into what we call semantic form. Semantic means that machines can understand it. That means that the words in the paper, they know how to process. If you put in something like Anopheles, it translates it into a tropical mosquito, for example.
Benson: Oh, ok. So what kinds of projects have your software been used for to date, and what do you see the future of your software use being, I guess?
Murray-Rust: Well, our vision is we want to give every reader in the world software which can help them read the scientific literature. There’s about probably five papers published each minute in science, so no way can humans keep up with it without using machines. So the first job of the machines is to find this, the papers that people want to read. So it searches repositories. It usually comes back with far more papers than people want to read. So the next part of that is to filter it so that they find the papers which are most interesting to them for whatever reason, and each reader is different, so that each reader will have a different set of filters that they apply so they find the papers of interest to them. So shall I give an example?
Benson: Sure.
Murray-Rust: Ok. Well, our current example is malarial mosquitoes, right? People are interested in this for many reasons. They want to find out where the mosquitoes are, what they feed on, how they spread disease, how people can control them, how successful it is, what the politics of malaria are, and so forth. So every reader will have a different view on this, and one person would want to look at the mating of mosquitoes, another would want to look at insecticide resistance, another would want to look at the eradication programs and how successful they had been and so forth. So we’re trying to create an environment where people can essentially just dial in on a graphical interface those things they’re interested in and so forth. Now, when we get to that stage, if it’s widespread, the readers themselves will start coming up with new ideas and say, well, we would like to do this with the information, we would like to link it here, we would like to translate it into Cambodian. It doesn’t matter what, you know, we want to do something with it that the original authors hadn’t thought of and that’s where the power comes, that it’s all open source so people can do whatever they like, and we do our best to make it easy for people to build on top of that and to create new ideas.
Benson: And so have you had some of these new creations emanate from it as of yet, and what are some of those things?
Murray-Rust: Well, a good example then is our youngest reader is from the Netherlands, and he’s fifteen. He’s still at school, but he’s doing research on conifers and the chemicals that they produce. So a lot of the chemicals that we use all the time come from conifers. They’ve got names like pinene from pine trees and so forth, and they’re used because they’ve got interesting aromas or whatever. He’s been studying that from the literature, so he built a resource where he could compare the chemicals which come out of these with the species that produce them. So that’s a simple example.
Benson: And I also remember from your presentation at IFLA that you mentioned us librarians who are managing repositories. We could use your content mining software to mine our own repositories. Could you talk a little bit about that?
Murray-Rust: Absolutely. So over the last fifteen years, most universities in the world have created something called an institutional repository, and in that go a mixture of things of digital artifacts. Some of them are research papers. A large
important part of them is theses, Masters and Ph.D. theses which are deposited in that, but there can also be other digital artifacts, you know, such as field studies or videos or whatever. No, we believe that a valid approach is for those repositories to be used for preservation, but preservation is only a part of it. We want them to be used as well, and in the electronic era, we can reuse repository information just as easily without destroying the function of them as archives. So, for example, we might want to look at studies on mosquitoes. Now I would imagine that in UIUC, there are many theses which talk about mosquitoes. There are many theses which talk about insecticides, and many […] papers which talk about tropical disease, and I don’t know whether that information has ever all been published, because when you have a student doing a Ph.D., often towards the end, they write it up in the thesis, and there isn’t time or resources to get everything in the thesis out into scholarly publications, but the thesis probably contains it in more detail, and obviously, it’s been peer reviewed, because it’s been examined by experts, right? So and the student puts in a lot of effort to make sure it’s high quality because they want to get their Ph.D.
Benson: I can say that having just published a thesis last semester, I know that process well. It was a Master’s thesis, but I do think that those are highly vetted, whether they are published in an academic journal or not.
Murray-Rust: So I would say that we could get a huge amount of information if we join together all of the repositories in the world. No, different countries do it in different ways. In U.K., every university has its own repository, and that is useful if you’re having an inward-looking approach. You know, this is what the university is, this is what its captured, but it’s quite difficult to share it with other people, because there’s a different login approach to each university, […] different API, and different metadata.
In some countries, like the Netherlands, they’re in the central repository or fronts. In the US, it tends to be that they’re all per university. So again, you would have some thousand institutions that you would have to crawl to get this out. I know it would be a huge value in being able to link to those universities and say how to use their APIs and to collect it all in one place.
Benson: That would be an amazing undertaking, but it seems like it would also require quite a bit of collaboration among the librarians and among the institution.
Murray-Rust: Yes, and part of the dichotomy in the universities is that universities are individual organizations, and they have to survive, and in many cases, they have to compete for limited resources, like getting the best students, getting the best grants, perhaps protecting things through various ways to earn money and so on. So often […] universities see other universities as competitors rather than collaborators, and I don’t know how to solve that problem.
As I said, some countries, the national interest trumps the universities. Here, I think it’s the other way around.
I actually think that universities would all benefit by pulling this type of information, because you would create a resource which everybody used, and it would be a resource which the citizens of the country and the world could use in a way that they don’t at the moment. So they would discover new things by having all of this information available.
Benson: Yeah, and I also think there’s an interesting copyright question there, right, because I think Melissa Levine has published a paper about whether or not we can mine data from older dissertations and theses, and I think her conclusion was that we can, under current copyright law or even with copyright law at the time. And so I think that that’s a good thing, right? So if we can, legally, I agree with you, we should, I also think that there are some barriers involved, and it seems like that’s a lot of information to mine, right? So how fast and how comprehensive could say, a database, be if we could get all that content fed into it?
Murray-Rust: So the first question is copyright. Copyright actually was started in the UK by Queen Anne. It’s called the Statute of Anne, and it was to promote the creation of, you know, of creative works, and it had a limited period of about twelve to fifteen years, and unfortunately, that has been lost, and we’re ending up now in this century with copyright as a way of mega corporations owning knowledge, and that’s everything from scholarly publishers like Elsevier, Nature, Wiley, to Disney, to Time Warner, to all of the people who quote own digital content. Copyright is incredibly restrictive because all creative works by their nature are copyright as soon as they’re created. You don’t have to register them or whatever, and the user has to somehow or other satisfy themselves that they can use this, and copyright is vested in huge number of things you wouldn’t think, and I won’t go into the absurdities, but this is probably the most complex legislation on the planet, and so forth. So, the advantage that you have in the case you mention is that the copyright of the theses rest with the students, and if you talk to the students and say, would you like your theses to be read and used and so on, most students will say yes. Some will be a little bit frightened, and but they won’t in science and medicine certainly say, I don’t want people to read my theses because it’s my intellectual property. I appreciate that in some disciplines a thesis is the precursor of a book or whatever, and I’m not going to comment on that. I’m going to talk about fact-rich disciplines where these facts are valuable for the world. So the negotiation is with the student of the university and not with some mega-corporation.
Benson: Except if they have published that thesis then sometimes they are allowed to put it into the repository, and sometimes they’re not, and sometimes they’re forced to embargo it and all sorts of other things. So again, comes in the publisher where, as you mention copyright resides with the author of it. Quite often, we’re asked to transfer it away, if we want to do things with and disseminate it, which is the beauty of the repository, right, in that we have control over that until and unless we sign away our contract.
Murray-Rust: Indeed. So we’ve got an incredibly dysfunctional system which was never designed. If somebody said, let’s spend twenty billion, with a “b,” dollars a year paying mega-corporations to stop us having access to our scholarly knowledge, you wouldn’t get many votes for that, but that is the position at the moment, and we’ve got to get ourselves out of it. So universities have got to realize that this is their material, and it is not the publisher’s material. If the publisher provides a valid service, fine. It needs to be a service which is judged in the public arena for value for money, which it isn’t at the moment, but at the moment, it’s simply vanity publishing where you’re paying, it cost five thousand dollars, I was told today, to publish a scientific communication with Nature Springer, and that is simply for the glory of having the Nature label on the publication. So the cycle has got to be broken.
Benson: Well, the most vicious part of the cycle, as it’s been explained to me, is that I’m the one doing the labor, right, I’m the one doing the hard work of the research and the writing and and editing and then the folks who are involved later on are my peer editors, who are also often unpaid.
Murray-Rust: Yep.
Benson: And doing that hard labor, and then you might have someone getting paid, the chief editor of the journal, but they’re quite often not paid a lot, and you know, maybe in the sciences, they’re paid a lot more, but in humanities, in library science, they are often paid very little, and then you have the publisher, who is just making all the money and off of the sweat and labor of our work, and then guess what? They’re selling it back to me. They’re selling my work back to me through my library who’s paying for the subscription. It just seems ridiculous when you think of it that way. When you break it down in that way, you’re paying someone for the things that you’re doing for free? It doesn’t make any sense. It’s completely illogical.
Murray-Rust: Absolutely. You’ve given a brilliant exposition of this dystopia. The question is, so nobody designed it. We’ve fallen into this by, you know, no point in working out how we fell into it, but it was mainly through inaction and people not thinking ahead, coupled with what I would call twenty-first century corporate electronic greed, you know, to control resources, because it’s incredibly cheap and easy to control electronic knowledge and it is very difficult to get out of this system.
So universities have got to wake up to the fact that this is the wrong way to doing things, and it’s unjust. Then they’ve got to work out how they get out of it. I’ve got some ideas how you get out of it, but they’re not, you know, they’re not guaranteed to work, but until the universities recognize this, it’s going to be incredibly difficult for people outside the system to change.
Benson: Well, I’m very open to your ideas, and, you know, there have been some protests where journal editors have resigned en masse, from Elsevier, for instance, and said, we’re just, we’re done with this system, it’s corrupt. What suggestions do you have for open access advocates?
Murray-Rust: So the first thing, I think, is that we should take this discussion outside the walls of academia. Every time somebody graduates in a university and goes into the outside world, as it were, they realize what they’re losing. They’re losing access to all this knowledge, and they don’t deserve this loss. We have educated them to be modern citizens who use knowledge for their occupations, who want to improve the world and so forth, and we’re saying to them, after you’ve left university, we don’t care about your access to knowledge. So I think we need to take it out to citizens to say, you are paying this huge amount of money. So actually, the world spends five hundred billion, with a “b,” dollars on publicly funded research, and most of this is not actually used properly. About eighty five percent is wasted, according to Lancet, because it’s not distributed properly. It’s duplicated. It’s poorly done, and so forth, and so we’ve, you know, we’re spending taxpayers’ money in an irresponsible manner for research. There’s a small and even more obvious case where we’re spending this twenty billion dollars to pay publishers for things that are dysfunctional and so on. So if we are able to find citizens who care about it, then, we should be able to get them to come in and start a political process of claiming back our knowledge. These are people, like people who are patients, you are suffering from a disease or your family member is, you should be able to read the papers about your disease. You may very well be volunteered to be in a clinical trial to look at this disease, to have new drug treatments or other types of therapy, and you are not allowed to read the papers about the trial that you have participated in. So that’s a particularly clear a clear example of injustice. In the world, we are threatened by or sorts of possible problems in the future, which are primarily due to climate change, but they’re also due to other things, like exhaustion of resources and so on, and we probably have solutions to these, right? To create new materials, to create new types of society, and so on, and the solutions to those may very well be in the scientific literature at the moment, but I run a small scientific startup in the U.K., Content Mine, to mine the literature, and as far as content mining is concerned, it cannot read the scientific literature unless it is open access, and in chemistry, ninety-five percent of the chemistry is forbidden by the publishers who publish that and so on. So I talked to a company last week who’s coming up with software which will predict better drugs, how would the drugs metabolize so you can come up with different therapies for different people suffering from different diseases, and they need that data in the literature, and they can’t get it, because if they have to pay forty dollars for a paper, and then on top of it, an unknown and arbitrary charge to extract the data out of the literature, so they could be looking at doubling that figure at least, and so let’s say one hundred dollars per paper and they have to read ten thousand papers, and you did a sum, that is a million dollars for being able to access the literature, to read the papers they want, ninety percent of which are actually then false positives. They’re not what they wanted, because the search engines are so inefficient and that is simply not fair to the planet.
Benson: I agree, and I think that to me, that’s one of the biggest reasons we need open access is because we need to solve the world’s problems.
Murray-Rust: Yeah.
Benson: And in order to solve the world’s problems, these are not minor problems, you know, climate change, to me, climate change is the most pressing problem that faces everyone, rich, poor, American, not American, it doesn’t matter who you are, your children and your children’s children are going to face this crisis, and it’s in large part man-created, and we need to solve it, and so to me, the only way we can solve it, is through collaboration and through knowledge sharing, and the more we shut down knowledge and and its corporate ties, and it’s too expensive to reach, the more we’re harming our own selves. I mean, we’re just harming society so.
But again, the solutions are hard. I do know open access has flourished a lot in South America because they don’t have the right under their copyright laws for interlibrary loan so they’ve created so much open access to get that knowledge shared among different libraries, and that has created societal benefits, but in America, we have the right to interlibrary loan, and so everyone, I think, gets a little complacent, right, because a lot of our libraries are so strong. University of Illinois Library is one of the strongest libraries in the world in terms of content collection and numbers, but at the same time, you know, like you said, as soon as our students graduate, they’re cut off from that collection, and so it’s great if you’re here and you’re a researcher, it’s not so great if you move away. Even if you’re a community member ,you can come in and access our collections, but if you are distant and you move away, then you’ve been shut off from those resources. So it’s a problem, and I don’t have a great solution. I mean, I think there are many possible paths, but I think you’re right, it’s going to need the general public to get involved, not just well meaning librarians such as myself.
Murray-Rust: Absolutely agree with that, and thanks for bringing up South America, my codirector, Cesar, is from Chile, and we are actually really looking at South America to see, and in Latin America more generally, to see if there are things that we can do which are different from what the rich West is doing. The problem, you know, with Latin America is that there’s an increasing tendency for them to adopt the western model, you know, in publishing, in western glamour journals, rather than building a Latin American approach to this, which would be fairer because there is a culture in Latin America that you do research no necessarily for your glory, but for the benefit of the community, and I think that’s stronger there than it often is in parts of the West.
So if, you know, the technology is there to support this, but the politics isn’t near it there.
Benson: Well, my father is actually a doctor, and I asked him once why he got into the specialty that he’s in because he’s an ontological urologist. He does cancer. He’s a cancer researcher, and he told me specifically that he wanted to help people and cure the disease, and that has been the driving force behind his research, and he’s discovered new genes that are cancer-causing genes and things like that, but he has always been motivated by helping society, and I think that is what I think doctors should be motivated by.
Murray-Rust: Agreed.
Benson: But I also agree that even in library science I am motivated by helping the general public understand copyright law, which is part of the reason I do this podcast. It’s not aimed only at experts. It’s aimed at anyone who’s interested, because I think we all need to understand the system that often is corrupt, and I think that, I hope that more and more individuals who are just trying to gain information and are being shut off and cut off from these sources of information will understand that this is this is very much an issue. This is a problem. This is a world-wide problem, and we really need to solve this or else, you know, the only people who are going to suffer are the masses. We ourselves as a society are going to suffer.
Murray-Rust: Agreed.
Benson: So unfortunately, you know, getting a mouthpiece for that particular issue is sometimes hard. It’s a little harder to get, get it really to be understood by people, but I think, you know, open educational resources, I think we’re making some headway there. I think students are getting fed up with having to choose between eating and reading their books and paying those exorbitant prices, and I think more and more faculty members are seeing the plight that their students are suffering and are understanding that this is an issue. So I think that’s one area where we might be able to get students who are younger and more vibrant and more politically active to get involved, and maybe it can spiral out from there to a more global movement.
Murray-Rust: I completely agree, and, you know, one of my privileges has been to be funded by the Shuttleworth Foundation, I’m a fellow Shuttleworth, and some of my colleagues are involved in open educational resources, particularly David Wiley and Kathy Fletcher, and they are developing books at cost price, you know, which are, you know, twenty fifty times cheaper than the commercial alternatives, and that’s is the way that I think that we start to engage students at an early stage, where you say, look, we want your education to be cost effective, and one way of doing this is to bring in resources which are high quality, which are sharable, and you as a student are actually part of this process. Open education is not us giving you that, but here you are as a student, I’m part of your education is to learn how we can change the future by carrying collaborative operations of this sort. So I think if we start this sort of process at the undergraduate level, make people aware that this is an issue which they, at least in part, have inherited and own and very probably have solutions to that we haven’t thought of.
Benson: Yeah, I think that really, when they say that children are our future, it’s so true. I’ve been really impressed, for instance, lately, with the motivation of the students in combat and gun violence in the U.S.
Murray-Rust: Exactly.
Benson: I have seen they are just so articulate, and they’re so passionate, and they are just wonderful future leaders, and I think that if we can get those same voices on board with challenging the current scholarship system, then maybe we can make some headway, but you know, it’s harder to get them involved and to get them aware of the issue, it seems, than something that hits them really close to home. I think educational resources does hit them close to home.
Murray-Rust: Agreed.
Benson: So I think that’s one of the ways in, so I’m hoping that this movement takes off, and I know we just got some funding from Congress, five million dollars for open educational resources in the U.S. Which five million dollars sounds like a lot, but I’m sure it’s not in the realm of what we really need in terms of support, but it’s a good step in the right direction, and I’m really heartened by that, and I hope that that can further this movement and really get more and more young voices involved so.
Well, it is been so much fun talking to you, and you have so many different experiences to share, and I hope that people will check out your website. I’ll link to it, and you know, go to see your talks. I’ve seen you talk at IFLA, and it was really wonderful, and I know you’re constantly lecturing around the world so.
Murray-Rust: Well, no, occasionally, it’s really valuable to me because this allows me to talk naturally, and I come up with ideas even during the last half hour, which I only get because I’m talking, and I’m relaxed, and thinking of, you know, how we take things forward so, it’s wonderful to have this, and to capture it, you know, so efficiently on podcast and so on, and I look forward to being able to share this with the world.
Benson: Yes, and I hope you do. Definitely tweet it out, and we’ll hopefully get some new listeners, so thanks for being with me today. I hope you enjoy the rest of your stay in chilly Champaign-Urbana. It’s April, and it’s really cold, but thank you so much for visiting today
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 life.
Welcome to another episode of Copyright Chat. Today, we have with us Elizabeth Townsend Gard, who’s a faculty member at Tulane University Law School. She specializes in copyright law and is co-inventor of the Durationator Copyright Experiment, a software program that aims to determine the worldwide copyright status of every kind of cultural work. She also co-owns the Tulane spinout company, Limited Times, which is commercializing the Durationator software and services. She co-directs and co-founds the Law/Culture/Innovation Initiative, housed at the Social Innovation Social Entrepreneurship program and is director of the Copyright Research Lab at Tulane Law School. Welcome, Elizabeth.
Townsend Gard: Thanks, thanks for having me here, Sara. It’s fun to be here.
Benson: And you are here remotely from your hometown where I hear Mardi Gras is heating up.
Townsend Gard: We’re in deep at the moment. It’s the Friday before Mardi Gras, so yeah we’re either, you’re either at the parades or you’re staying home because it’s crazy out there.
Benson: I would recommend avoiding them altogether but I’m a little bit of a curmudgeon myself.
Townsend Gard: Yeah, me too. I think it’s like four days of staying home days.
Benson: So I’m very interested in this concept of the Durationator, and I wonder if you can explain it a little bit. I understand that it is difficult to research the copyright status of certain works due to the transfer of ownership and copyright information not being readily available online through the copyright office, but maybe you can explain a little bit more how you came up with this concept.
Townsend Gard: Sure. So the project’s ten years old. It’s hard to believe we’ve been working on it that long. It came out of my doctoral work. I was a grad student in European history, and I wanted to use a ton of resources from what we now know is sort of the key orphan work period which is, you know, nineteen twenties thirties forties. Nobody could tell me how to do this, and so I came from a family of lawyers, and I went to law school, and then after that, at law school I still didn’t get the answers, so I started working on trying to figure out how to figure out the answer, and then be able to help others as well. So it’s a system. It’s thinking through sort of what’s the status of a work, and it does it for every country in the world. And we’re trying to now think through the next step. So we’ve done a lot of the research, and now we’re on the kind of entrepreneurial side of getting it out to, we really think libraries are a key component to it. It was the librarian that I asked if I could use, or the archivist, that I could ask if I could use a particular work, but so we see like archivists and librarians as sort of on the front line, and so thinking of ways to get this tool into their hands and also providing support. So that’s another thing we saw. It’s not a software tool. It’s really a support system for determining the copyright status of a work.
Benson: So is there some backend research that goes on? I noticed on the website describing it, that you have law students who work with you behind the scenes, but, you know, so the Durationator itself seems like a software-type program, but is there some backend work that goes into this as well?
Townsend Gard: A huge amount. So we’ve had eighty students on the project. I spent pretty much a full decade, just every single second of my life working on it. There was just a ton of research. Each country was a lot of work, but also the U.S. Determining the copyright status in the U.S. is really awful. So it turned out there’s a lot of problems and a lot of issues that arose, and so our system takes all of that and puts it into a manageable format so that you don’t have to know a huge amount of copyright law or any copyright law to do it. So, yes, it’s a software system, because we have it all coded into a system, and some people can just use the system and put their data in, and it will match the law, and it will give you an answer, whether that’s like a single thing for a library, like in the public domain or not, or a forty page document for an attorney. But we also see that we have a lot of shortcut tools so you don’t have to put in every single. . . So I’ll just back up. So I went to an archive to try it, and I really didn’t want to spend a bazillion hours putting every single piece of information in, so now we have all these shortcut tools, and so we’re really trying to work with libraries to figure out what’s the fastest easiest way to get you through a system to determine three things: whether it’s under copyright or not, if it is under copyright, how long the term is, and then also if any Section 108 exceptions apply. So that’s what you get by putting in a bit of data. We don’t have data. We have laws. You put the data in like a MARC record, and then it spits out in an answer.
Benson: So I find this really interesting in terms of how libraries could use the tool. Are you considering licensing it to libraries, or what is the kind of business model there?
Townsend Gard: That’s a really good question. So, sorry to put my entrepreneurial hat on. We’ve kind of struggled over the years to sort of figure out like what’s the best way to help people and use our tool. So we’re now thinking like, it’s like libraries subscribe, since libraries like to subscribe to things, they would have access to the tool itself, other tools we develop, but also I think, what’s really important is a human. So that’s why I said we were not a copyright, we’re not a software tool, we’re really a support system, and because of that, we’ve got to think through like the. . . That then takes manpower in, you know, like people have to actually answer questions and things like that, but I feel like copyright’s really hard, and sometimes you just need someone to say, it’s going to be OK. And so that’s kind of what we’re at, where we’re at now, and then I think for the next couple years we’ll do subscriptions to libraries, if they want to subscribe, and keep them very reasonable priced and all of that, but then I think in the end, my goal is really for the project is, I think it should be a lot like electricity? Copyright? That you shouldn’t really have to know where it comes from or how it works, it just appears, and so that’s the next step of this project is to think through, if you’re using a library catalogue that if you can just see the copyright status of that particular work. That’s going to take more work and more partnering with people and thinking through what that model looks like, but we’ve got the law done so it’s not about the law part. Now it’s about logistics, but like kind of like Grammarly, you know where you can add an app to your. . . And, you know, figure out how to get that all up and running. So that’s the next step, I think, and I don’t know. We’ll see if anybody’s interested but right now, we’re starting to take subscribers. We’re being super cautious about it. And we’re going to put a limit on how many we have, again, because what kind of testing and making sure all of it works. That’s kind of where we’re at. We’re kind of like the-anti entrepreneurial group.
Benson: Ok, so yeah, and I think that’s a really interesting kind of approach, and I like the idea of an overlay on top of, for instance, a database, a library database, where it would just automatically kind of provide rights data. I think there’s a lot of interesting, there are a lot of interested parties here, in particular, metadata librarians, who are asked quite often to put rights statements into the metadata, and they don’t understand copyright necessarily, and then they’re a little bit, they just don’t know what to do.
Townsend Gard: Well why should they, right? I mean that’s the thing. We’ve been working with that with metadata and looking at all the sort of where, what field it goes into and all that and what fields are used and not used in MARC record and all that, and what we really want is to work with catalogers and metadata specialists to really think this through because it should be that they just take the data, you run it through a system, you spit out the answer. No human should be involved, and it should just happen. But we’re not quite there yet, you know. It’s really. . .
Benson: Right.
Townsend Gard: You know, so yeah, we’ve been working with a bunch of institutions on thinking that question through, and if anyone’s listening and interested in that, definitely contact me, because that’s what we’ll be doing this summer is thinking, we do big projects every summer, and our last one was with Internet Archive on 108H, and the last twenty project, which was about using a work in the last twenty years of its copyright. This coming summer, we’re doing photographs and audio-visual works, but we’re also still working at this metadata. I really, I’m really interested in this question of metadata, and how do we get it into our system, get it back out.
Benson: Right, and I think there’s a real issue with standardization, though, of inputting the data, because if every institution seems to do it slightly in a different way, and so if every record is different then.
Townsend Gard: Not even just every institution. Every department in an institution seems to be doing it a different way. So that becomes really problematic because you’ve got to figure out, Ok, well, what is it for this one, right, so we’ve been doing a lot of work on it with my law students, and we’re still not there yet, but you can kind of see why that electricity model, it’s a few years down the road because there does need to be standardization. At least our system has to be able to take in a bunch of different versions of the same thing to make sense of it, you know.
Benson: Right. Well, I wonder if you start with somewhere like OCLC where they aggregate all the data and kind of start at that end, instead of starting at the. . .
Townsend Gard: We’ve had some conversations with them. The thing I’m most interested in is, the Library of Congress and their release of the MARC records, the twenty five million or whatever it is, I think that data, that would be really interesting, too. We need a dataset that we can like start with that doesn’t have. . . So here’s the other problem we have. Catalogers and the library community haven’t traditionally included whether the work was the original work or a derivative work. So, you know, you get something like Sister Carrie that’s published in 1900, and then you get another version 1920, 1924, you know, on and on and on and on. Our system needs to know if that 1900 publication, right, that that’s the first one, and then anything else is a derivative work, and so we’re seeing in the records that sometimes you know that from the record and sometimes you don’t. And again, you know, that’s because the libraries weren’t looking at copyright when they were doing the records, so that’s a bit of a problem, right, because you don’t want someone thinking that Sister Carrie was first published in 1974, you’re going to get the wrong answer. So that’s a problem. It’s all about problems like that. I always say, like is this problem impossible or just really hard? It turns out, usually they’re just really hard and take like a entire year to figure out that one stupid problem. We haven’t come across yet an impossible question.
Benson: And I wonder if that if the database that you begin with is broad enough that maybe you could program it to like look at the earliest version and designate that, I guess, the original.
Townsend Gard: Yeah, that’s kind of what we’re thinking, and the question is to make sure it’s the same work, right. So it’s just every, I mean, you can think of like, when the human is involved, it’s so easy, right, because you go, oh, you can just figure it out. But then you’ve got a million records, and then the human is. . . It’s impossible. So it’s just thinking through these questions and all the different scenarios of what might happen, so that the system programming it to deal with that problem when it comes up.
Benson: And that leads me to another question. Who is programming this? Do you have students who know code, or do you use an outsider or?
Townsend Gard: Yeah, so we use a program called, there’s a company called Logic Nets who has been insanely lovely to us, and what they do is they build us a framework and then I can do, they have a really good interactive system, so I can do the coding and my students can, so we can. The problem is when we just had an outside coder, we’d have to explain the law. So now we can really think through the law and code it ourselves but that takes time, and then sometimes I get stuck, and it’s very frustrating because I’m a law professor. So then we’ve got to kind of work it all out. So it’s kind of inefficient, but I think what’s happened by doing it that way, we’re really aware of what, I mean, what variables need to go in, is it, you know, a table, what do we need exactly, and I think now we can translate it to the next system in a much more efficient way, but we built it all. I think there’s maybe, I don’t know, three or four thousand paths in the system and tons of data. I mean, it’s this gargantuan beast. But it helped us to think through the problem, and we’ve gotten really good at sort of understanding code in law. And what that means, and it’s really different than just. . . You have to figure out how to get people in the system, asking the least amount of questions and taking any of those hard questions like publication and pushing them aside. So that’s been fun, but it’s really hard. It makes your head hurt, and it really does. Sometimes it’s fun but sometimes it’s really not fun.
Benson: Yeah, I mean that leads me to one of my questions which is I noticed that your system deals with international laws, and I wonder, are you taking the perspective of someone situated in the US trying to use an international work, or could someone in, say Finland, say well, I’m physically in Finland, what are my rights?
Townsend Gard: Yeah, both. So we did it for all of it. It turns out we needed to know the laws of other countries to figure out the status of a foreign work here in the U.S. in certain instances. So we were already looking at Finland and then, of course. I’m way overly ambitious and I say just ridiculous things that turn out to just take a lot of time. So we also did, we coded every country. So, you can know the copyright status of a Finnish work in Finland or a Finnish work in South Africa. It’s super global, and also because I didn’t want to be imperialist or elitist, we did every country. I mean, every single country, every island, every dependency. We did it all.
Benson: How did you do that because I understand that a lot of these laws have been translated, but some of them, did you have people looking at them in their original language, or you were looking at translations?
Townsend Gard: Yeah so we did both because Tulane really focuses on international comparative law because we’re Louisiana, and we have civil law. So we get a ton of foreign students in our LLM program, so I kind of pick off the list to see who has come this year, and so there’s a friendly like, hey, want to come by my office, and they do, and I’m like I know you do commercial law, but could you read this Copyright Act for me for a few minutes? So yeah, we’ve had a lot of various people with various language skills involved in our program which is fun.
Benson: So how many years has it taken you to get this up and running? This sounds like a huge endeavor.
Townsend Gard: Ten years. This is our tenth year. We’re having a birthday party in a few months. Ten years, and it’s. . . I’m just really sick of it. So I mean I like it, and I really want people to use it, but I just want more partners, more people. I want it to graduate and go off to college. It’s just a lot, you know. I mean, the system’s really good, and it’s been a great experience, and people are great. I get to meet people like you, but you know, I feel the weight of the Copyright Act on my shoulders pretty much every day, you know.
Benson: Right, and then how do you deal with, in your system, I know you talk about fair use in there, do you try to deal with all the new cases coming out or do you kind of summarize what has been happening? How do you deal with a new case law?
Townsend Gard: Yeah, so we do have a fair use tool. We also have termination of transfer and library exceptions and all kinds of other tools that are related to duration in there. For the fair use tool we’ve been using standard checklists that are already out there, and we do look at the new developments of the law each summer, but what we’re doing is really just giving a list, and then it’s not saying yes, you can use fair use and the fair use case. It’s really saying, well this is how you answered it, and now that will help you make a determination. So we’ve been kind of cautious on that, but it’s pretty obvious, I mean, especially in a library use or, you know, an academic use. Once you see like where you fall, it’s pretty obvious that when it is fair use and when it isn’t, you know. That’s kind of what I’m going to believe. I probably am. . . I don’t know if I’m in the minority or not.
Benson: No, I hear you.
Townsend Gard: Do you agree? Do you think fair use. . . I just feel like fair use is getting more and more standardized, and that there’s just most situations, it’s kind of clear when it is and when it isn’t. I mean, there’s fringe cases, but I don’t know. It seems like it’s gotten better over time.
Benson: I mean, especially, I work at a public university, so the majority of what folks are trying to do at this institution, they’re doing for educational research purposes, and so yes, I agree that most of the time, it’s pretty clear, but every once in while, you’ll come up with a strange case, and you know, people have to make their own determinations.
Townsend Gard: Exactly, and one of the things that’s really important is, we see this as a research tool. It’s legal information. We’re not giving advice, so we’re not replacing attorneys, and we’re not replacing experts like you. We’re really just making your job easier and faster. That’s why we really want librarians and archivists and copyright specialists to use it, not necessarily the general public yet, because we feel like they really need to understand what things mean and not just handing them, you know, it’s not like, you know, we want to get it to be like Turbo Tax for copyright, but we’re not there yet. We’re really still in this like, we need intermediaries to explain.
Benson: Yeah, that makes sense. I mean, for instance, we’ve got a listserv where sometimes, we deal with tricky copyright issues, and one was an issue in China where someone was trying to determine if a work in China was in the public domain as of January 1st, 1996, for obvious reasons related to the U.S. law and how it applies to foreign works, and to answer that question, someone on the list had to know quite a bit about Chinese law, copyright law, and luckily someone did.
Townsend Gard: Right, at a certain time, not just like new Chinese law. That’s like, that’s why it’s so messed up, right. So that’s why we ended up doing all these countries is because it’s the law at a specific time. I’m sure I can’t remember what it is for China, but if it’s 1996 that you were looking at it, you’d have to look to see if the law as of 1994 or 1996, depending on a certain situation. That’s the law, not now law, and those laws were weren’t online for us. So we had to like go look for all these old laws that nobody seems to think are important to figure out the answer you were looking at. So insane.
Benson: Exactly. I understand the need for copyright specialists to have that tool because when people ask me questions about how the US law applies when we’re looking at a work that originated from somewhere else, they don’t understand that I also have to understand the law from that somewhere else place, and they also don’t understand that that law from somewhere else may be fluid and may have changed over time and does not apply retroactively, and so I think that these issues really are of concern for even very expert people. I mean I don’t consider myself to be the most expert. I think there are many more people who’ve been doing this job much longer than me, but I definitely have, you know, quite a thorough grounding in U.S. copyright law, but when it comes to every other country, often, that’s not the case. And so this tool could be really useful, especially in those instances.
Townsend Gard: Yeah, yeah, I mean, and I coded all these laws, and I can’t tell you. I mean, I was just saying, like I don’t remember China, and who can remember all of this? That’s why this law, that’s why copyright law is so ridiculous. Like really, you need ten years to code using eighty students and like thousands upon thousands of dollars. We spent two hundred thousand dollars building this thing, and it’s like, why? Like really? Like if that’s the only thing that comes out of it is that it takes this much to determine the copyright status of works. It is totally ridiculous, you know.
Benson: Yeah, well and you know, as copyright has become a little more standardized, post the Berne Convention and everything, I’m hoping this becomes less convoluted in the future, but then again, I met someone from Australia who told me that in Australia they have 91 copyright exceptions, and I just could not believe it. I just said, I can’t believe that.
Townsend Gard: And the exceptions are not standardized.
Benson: Yeah, yeah. She’s like, we just want fair use, because we have every single exception and they’re narrowly, you know, laid out because they don’t have kind of a broad exception like we do in the US, and I thought, oh my goodness, to remember all of those exceptions is a feat in and of itself.
Townsend Gard: I know. Well, it’s funny because this project started. . .
Benson: It’s a fascinating world out here.
Townsend Gard: It’s totally fascinating. And this project started because someone asked me about the woman that I studied for my dissertation and whether something was out of copyright or not, and it took me like two months to figure it out, and I was like, I don’t want to have to ever do that again, so let’s do a system so that we could figure it all out, but that took ten years. So I don’t know.
Benson: Well, I hear that you have your own podcast coming out. Can you tell me a little bit about that project?
Townsend Gard: Sure, of course. Well, because I feel like I’ve been in a cave
coding for ten years, and I don’t, you know, I don’t come out very often, I have a different project which is about quilting. It’s about quilting and copyright, and it’s got a podcast called, “Just Wanna Quilt.” So we’re interviewing all kinds of people from the industry, from quilting to regular quilters to other people to fancy people, and that launched this week. So it’s really fun. It’s like totally different. Like there is just like fun and trying to understand sort of the role of intellectual property within quilting is what the project’s about so if there’s any quilters out there, you know, contact me, listen to the show, but it’s a blast. We’ve been doing it for about six months, and it’s the complete opposite of the Durationator. It’s just goofy and silly.
Benson: It sounds like pure joy.
Townsend Gard: It is pure joy. It really is. Like, I keep saying like, I’m doing the
Durationator because, you know, I put in a lot of time, I believe in it, and I really want to help people, but the quilt project is, that’s kind of all I want to be doing. Hence the title, “Just Wanna Quilt” so.
Benson: Well, I will definitely link to your podcast, and I hope people do listen because it sounds. . . If you’re into quilting, and I know a lot of you are, especially librarians out there who may be listening, feel free to listen to that podcast as well. I think it’s going to be a fun one.
Townsend Gard: Cool. And we will be talking about copyright there, and we’ve also been having, you know, Mike Madison’s come on and Chris Bryggman and Brian Fry, and I’m leaving out others, so we’re having scholars come on to talk about what they know and putting into copyright. . . I mean, you know, quilting context, but it’s also just fun and ridiculous, too, so lot of silly things.
Benson: I’m looking forward to listening to some of those episodes myself, and I appreciate you taking the time to talk to me today about the Durationator, and I look forward to seeing more of it and hearing more about it in the future.
Townsend Gard: Cool, and I think just for your listeners, that if you do have copyright questions, we are going to start having subscribers and having institutional subscriptions, we’re calling them alpha subscriptions, I think we’re starting in March officially. We’ve got a few people that are already signed up, and we’re going to take, maybe, I would say ten people for the first year. So if you are interested in that and again, I’m not selling, I don’t, I’m like an anti-sell person, but if that’s something that interests you, just email me, and we can chat about it, but really just trying to figure out what libraries need and help you and cover our costs in doing it.
Benson: Sounds great.
Townsend Gard: That’s my story. So Durationator and quilting. It’s kind of all I do.
Oh, and foster kittens.
That’s the other side of our life.
Benson: Well, and you also teach law, right, as I understand it.
Townsend Gard: That’s true. You know, those law students, right, exactly, make them. . .
Benson: I also think you’re an honorary librarian. I’ve seen you at the American Library Association Conference.
Townsend Gard: Usually, and you guys are coming this way, right?
Benson: I think you’re an honorary librarian.
Townsend Gard: Are you guys coming here?
Benson: Yes.
Townsend Gard: You guys are coming here in New Orleans, right?
Benson: Oh exactly, are you going to be at the annual conference?
Townsend Gard: Totally. I loved it. I was in your little booth, the copyright help booth. It was awesome.
Benson: Yeah.
Townsend Gard: So I got to figure something fun.
Benson: I’ll be there again, so I’ll see you this summer for sure in person.
Townsend Gard: Awesome, love it. Well, let’s find time to play and anyone else coming, let’s play while you’re here. It’s a fun city.
Benson: All right, great, thanks for joining me today, and like I said, I will link to some of your other tools, and I hope people do contact you about the Durationator, because it sounds like a really exciting project.
Townsend Gard: Awesome, thank you so much, Sara. It’s really cool. This is a great show.
Sita Sings the Blues: http://www.sitasingstheblues.com
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 that are relevant to their daily lives.
Welcome to Copyright Chat. We have Nina Paley with us today in studio. Nina Paley is an American cartoonist and animator. She directed the animated feature film, Sita Sings the Blues. Because of obstacles in clearing the sync rights for the music recordings in Sita Sings the Blues, Paley took an active part in the free culture movement. She is an artist-in-residence at the QuestionCopyright.org nonprofit organization. In 2012, she was a special guest in the international conference CopyCamp in Warsaw, and she won the Public Knowledge Organization’s IP3 award in 2010 for her work in intellectual property. Welcome.
Paley: Thank you.
Benson: And great to have you here, and you are living in balmy Urbana.
Paley: It’s balmy now. It’s like 33 degrees today.
Benson: I know. This is balmy. It was negative 12 the other day. So welcome, and you have a really interesting story because you didn’t come into copyright the same way I did, from a fascination with copyright laws and all that. Why don’t you tell us how it came to be that you became a copyright advocate?
Paley: Well, I had always believed in copyright as a young person drawing things. When my stuff first got published, any well-meaning older person would tell me about how important copyright is and how valuable my intellectual property is and how I must protect it. Intellectual property, Intellectual property. And it was very exciting to think that I was making property. Some valuable thing that was worth big bucks, you know, that people would trade and fight over. I never really thought what intellectual property meant or how that word came into use. I just thought, ooh, this is my property, I’m making properties. So I was groomed into it like everybody else, and for years, I just thought copyright helps me, I’m a professional artist. Yay, copyright, and I didn’t question it until Sita Sings the Blues came along. It wasn’t when I released Sita Sings the Blues. It was when I started making Sita Sings the Blues because I knew that this historical music I was using was crucial. It was crucial to the point of the film, and when I talked to experts about it, they pretty much universally said, just don’t use that music, just don’t use old music, independent filmmakers can’t use old music, it’s a mess, just get new music, don’t bother. And I mean, at first, I was like, oh, I can’t use the music and tried some other way, but it was like, I was making a film based on what my muse was telling me to do, basically, and my muse doesn’t respect copyright. It was, I was not inspired by it. How can I be inspired by something that I have to make myself to simulate something. These were authentic songs from an authentic historical period that carried important meaning and made a point to the film. So I decided I was just going to use this music, and let the chips fall where they may. I did contact the Electronic Frontier Foundation, and they put me in touch with American University, the Samuelson Intellectual Property Law Clinic, and I worked with them, at least figuring out the provenance of the song, songs. They worked very hard to try to figure out who owns what, and, of course, every song was owned by multiple corporations, weird percentages depending on what territory you were in.
But I still, even then, making the film, I still thought, well, this is a pain, and it’s silly, and copyright lasts too long.
But I still didn’t question fundamentally copyright. I just thought it lasts too long, and then when I was trying to release the film and going through the process of clearing these licenses by contacting these corporations, then that horrible year really got me to deeply question how the system worked because the corporate owners are under no obligation to talk to you.
People say, oh, just ask for permission, as if they’ll respond to you. They don’t. I learned that the only way they will respond to you is if you have like a highly paid lawyer that they know, someone in the industry. So you have to pay to even begin the process. When I did begin the process, which was expensive, the first thing the corporate owners did was say, before we will even talk to you, have to pay us money for a festival license. It was like, you know, and then you have to sign this contract that says you won’t make any money from it, and you can only go to festivals for one year, and this is a condition of us talking to you, so I had to pay, I don’t know, like a thousand dollars per song to talk to them and sign something that says that I promise not to make any money, which was really weird, because they were trying to get money from me, so you would think if they wanted money, they would be allowing me to make money so that I could give them some money.
Anyway, I was doing the festival circuit and talking to other filmmakers and learning how many films just didn’t get made because of music copyright issues, all for stuff that should be in the public domain. Not all. But much of which should have in the public domain, which was an issue for the old Annette Hanshaw songs I was using.
And I had this film, and I was like, whether or not this film goes out in the world is at the mercy of these people who work for corporations that have zero obligation to make it legal. So I have an illegal film in a corrupt system, and it was clear that that system favored the corporations because everything alternately is owned by five media corporations, who also happen to own movie studios, you know. Sony, they release movies, and Sony’s movies have this old stuff in it. Like I remember Sita Sings the Blues came out around the same time as the movie Wall-E, and Wall-E had the song, “Hello Dolly,” and you know. It’s so sentimental. Oh, it’s such a good movie. Oh, look at that clever use of the music, and like you only get to do this if you’re in bed with, only corporations get to do this, right, like no individual artist gets to be all clever with their use of music legally. Anyway, that’s what got me into it.
Benson: Well, I found it interesting because, so I’ve read many stories about your story. I guess metastories, stories someone else wrote, and the way I understood it, was that you didn’t know about the copyright issues until you published the movie, and then, you got hit up with all these lawsuits.
Paley: There was never a lawsuit.
Benson: All right, interesting. So—
Paley: I was just trying to be a good girl and follow the rules. I was following the rules that were set out to me, that everyone told me benefited artists.
Benson: And then once you published Sita Sings the Blues, then what happened?
Paley: Well, I didn’t publish Sita Sings the Blues until I had actually cleared these rights. I thought about it a lot and decided I did, in the midst of this copyright nightmare, clearance nightmare, I decided that I would give the film away for free, but I wanted it to be legal to give away for free, and that cost me like fifty thousand dollars in licensing fees to make it legal to give away for free, and even that is contentious, right, I could still be sued over that because I am required to pay additional fees per number of copies sold, like for five thousand copies sold.
And way more copies have gone out in the world than copies sold, right. I distribute it for free, hoping, actually, that they won’t be copies sold because they have to be paid for. And in the movie industry, it is customary to not count promotional copies. So I was like, all right, it’s going to be promotional copies. Everyone’s downloading their promotional copy. I have paid additional fees for the D.V.D.’s that I have sold, and I have licensed it to distributors, who also have to pay for five thousand copies sold and on the Sita Sings the Blues website, there is a list of who owns what, how much you have to pay per copy, and where to send it to, and I even encourage people to, if they sell even one copy, to pay, you know, five cents to this corporation and twelve cents to that one according to the rules on the website, if they want to, you know, we called it total compliance. If you really want to comply with copyright law, this is how you do it. Every time you make a copy, or every time you sell a copy.
Anyway, what was the question?
Benson: Well—
Paley: What happens you publish it?
Benson: Right.
Paley: Right, so my year of Kafkaesque copyright nightmare made it clear to me that I would do better in the film, and the film would do better, if I freed it.
So that’s what I did.
Benson: So my other understanding, and again, I’m learning that these may not have been correct, and these were just understandings that I got from various websites, so you know fake news alert, but one of my other previous understandings was that the issues you were having stemmed from state laws covering musical recordings pre-1972. Is that, that’s not correct?
Paley: It was a kooky. . So there was this aspect of it where the recordings of the song were in the public domain everywhere, except New York State, because some weird precedent had been set in New York State about recordings, and it was weird thing where nobody bothered challenging it, right, like it seemed like, well, federal law should really take precedence over state law in this case, but nobody had challenged it, and I decided, well, ok, I’ll just do this, maybe, you know, if I get sued then this will be the case that challenges it but I didn’t get sued. And I think that the understanding of the rules has changed since then. I think I’ve come across some articles that say that this is outdated now, but this was in 2008.
Benson: I don’t think it’s outdated. So 1972 is when sound recordings were brought under the federal copyright laws and so pre-1972 people are in this weird thing where it’s state-by-state, and so I don’t think that’s incorrect. But I do think there been more there’s been more litigation more recently, and so what you were paying for was for synchronization rights in order to put the sound and sync it up with movement in the movie.
Paley: Right.
Benson: Okay, interesting.
Paley: There’s like four sets of rights associated with any song, and one of them was the recording, that again, the recordings were in the public domain everywhere, except possibly New York State. I was like, eh.
But yes, the sync rights were something else, and it was weird that like some of the parts can be in the public domain, while some of them are not in the public domain.
Benson: Yeah, and I think that this is what makes sound and music so complex because other parts of copyright, it’s pretty straightforward, but there are so many different musical rights. There’s public performance rights. There’s composition rights. There’s sound recording rights, and then there’s pre-1972 and post-1972, and then you’ve got sync rights. You’ve got mechanical licenses. You’ve got this and that. There’s so much going on that it boggles the mind.
Paley: Oh I paid mechanical licenses for the CD. The audio CD.
Benson: Because you have an audio CD that goes along with it.
Paley: Right.
Benson: Okay, interesting.
Paley: And that was funny because CD Baby was one of the only options at the time for distributing a CD.
They had no concept of public domain. So it was like, yes, we have mechanicals, but, you know, this and that is in the public domain, and they were like, what, no. And it required like a lot of correspondence with them, and Karl Fogel of QuestionCopyright.org was actually corresponding with them until finally they relented and let us, you know, and acknowledged there was pubic domain material on this CD.
Benson: So what I find most interesting from your story, I guess, is mostly what you’ve done after that experience, because it seems like that experience was kind of pivotal for you as an artist in terms of how you interact with the public and your own copyright rights. As you said pre-Sita Sings the Blues era, you view yourself as the author. You have these awesome rights, and you could make money, and now it seems like you give away most of your work for free. Is that right?
Paley: Yeah, but I’m absolutely the author. There’s just a difference between authorship and ownership. So you can only own property, and art just is not property. Objects are property. You know, when I pay a lot of money to have D.V.D.’s printed, those D.V.D.’s are my property, and I sell them, and if you, you know, take one from me that represents a certain amount of money that I spent that cannot be, like, I can’t get back. So yeah, property has certain limitations around it, such as limited number of atoms that it’s made from or some sort of physical component to it, but patterns are not property.
Benson: Well, I mean, the United States Supreme Court just had a case on that, and they kind of said it was.
Paley: No, they do, and they say all kinds of things, you know.
Benson: So yes, you’re taking issue with that, and I guess, explain to me what, how you came to this decision. I know you have a cartoon out “Mimi and Eunice,” and did you designate that CC0, and I’m not sure what the license is on that.
Paley: Okay, so, after Sita Sings the Blues, that was the dawn of a decade of copyright experimentation, that I’m still involved with, because once you become a copyright abolitionist, and you’re an artist, it’s like, well, how do I get my work out? And Creative Commons offer some alternatives, but it is not a panacea. There are problems with all Creative Commons licenses. There are problems with all licenses because all licenses are built on copyright. So copyright law is the bedrock of all of this, and if you fundamentally see copyright law as corrupt and dysfunctional, building more licenses on top of it doesn’t actually solve the problem. It does make it easier for me, in some ways, but Mimi and Eunice is, I think it’s, yeah, I think it’s CC0. I go between CC0 and CC share alike. So I like to share alike license. I originally released Sita under the share alike license because that seemed to, it was like an attempt to build a free ecosystem around it, right, like do whatever you want with this, remix it, fold it into something else, and then release the next thing under a free license.
That’s a nice idea, but then there’s this whole problem of well, what happens when somebody, people are so confused about licenses even if they really mean well, and they release it under something else. One of the most common things, one of the most common bits of fake news around Sita, just because people don’t understand copyright, was they said, all these articles said, Oh, when she releases it, as long as you don’t use it for any commercial purposes. And it’s like, no, go ahead, use it for commercial purposes. I am pro-commerce, use it as commerce, but people that remixed it would frequently release it with noncommercial restrictions, and it was like, do I have to, like, email every single person that does this, you know, every time I find an example of this of it being relicensed under some sort of restriction, do I have to bother the person, and what I really want to be doing is encouraging everybody to share it, and do I really want to be copyright police or free-license police to make sure everyone’s doing it perfectly? It was like, no, I don’t. I don’t care. I don’t want this to have to be my business. So that was when I decided CC0 was more appropriate for me, even though people can enclose, you know, they can put copyright around reuses or redistributions. There’s no perfect solution. What was I answering? I’ve gone off on a tangent.
Benson: I was asking if you were licensing “Mimi and Eunice” CC0, and I–
Paley: Oh, right, right, right. Oh, right. So for that, for Mimi and Eunice, because the Creative Commons licenses were causing all these problems, because there are so many Creative Commons licenses, and people don’t really know what the difference is. I thought, well, let me try something that’s not a Creative Commons license. I’ll just sort of make up something that’s not even a license, right, because I don’t want it to be based on copyright. I thought, just a message, and that was copy heart. It was a little heart that says, “Copying is an act of love. Please copy and share.” And I thought instead of a copyright symbol, I’ll put a heart on it. Other people have tried things like this, right. There are many idealists that keep trying to make some alternative to copyright, even if it’s not legally enforceable, and in fact, it shouldn’t be legally enforceable because the law should have nothing to do with this.
But yes, so “Mimi and Eunice,” it’s a copy heart. It was just a little heart.
And but it’s also, it’s also CC0, however, for people who want that. I don’t know, there’s not, you can’t really win this copyright regime. You can’t get out of it. It’s not that you can’t win, you just can’t escape.
Benson: So okay, here’s a question, and you say you’re not anti-commercial necessarily, and how are you making your money? I mean, I saw on your Sita Sings the Blues that you take donations to help cover the costs of all the licensing. What other projects are you engaged in, because obviously you have to live.
Paley: Yeah, so I did a couple of reports the first couple years Sita Sings the Blues was out in the world where I documented where my money was coming from, because Sita did like really well, much better than I expected it to.
And I documented, you know, how much D.V.D. sales of my own, of like the D.V.D.’s I distribute, how much money am I getting from downstream distributors people have licensed it to, how much in donations, how much in speaking fees, blah blah blah. It all, I’ve got so much more money from speaking fees and direct donations, so and it was a pretty successful D.V.D., too.
But it seems like the best way for me to get money is for people to simply give me money. It’s like a really simple system, right, you cut out the middleman because when you have other people distributing your stuff and all these deals, they take a huge cut, and, you know, they have downstream people taking a cut, and the cut that ends up going to the author is really small, and it’s almost laughably small. Whereas if somebody gives you a direct donation, you get all of it, except for, you know, whatever the cut PayPal or credit card company or whatever online service you use is.
Benson: I guess I’m trying to think broadly here about this model as a model for publishing, because we have the same issue in open access publishing. It’s like, yay, it’s great, but we have a lot of work going on behind the scenes, how do we make our money? And would this be akin to me setting up my own personal website and saying, hey, here’s some of my research, if you like it, give me money?
Paley: Yeah, I think so, I mean, I donate to, I mean, not much, because my income the last couple years has been extremely low, and the reason for that is that I’m working on a new movie, SederMasochism, and I’m putting like zero effort into fundraising, and I’m also at the moment, I’m like, I’m a war tax resister, and I’m on Medicaid, so my income is below a certain level which allows me to have health insurance for now. That may change. This has only been a couple of years because four years ago, I did a Hollywood gig that made a lot of money, and the idea was that I would live on it, if necessary, so I have stuff stashed away in savings.
Right. What was my point about that with the money?
Benson: Just, you know, as a model for other folks.
Paley: Oh, right, right. So the issue with any of this, like, if my work is out there, and people like my work and can see my work and know how to reach me or how to send me a donation, that works really well. The scarce resource in all of this is attention, and the problem for any artist or anyone that’s publishing anything is, how do you get attention?
There is no guarantee you will get the attention, so I am fortunate in that sometimes my work gets attention, and when that happens, it’s like great, you know, like I get more fans, more people know about me, and so when I do really something, there is some attention available for it.
I don’t know, you know, if I were completely unknown, what I would be doing. Most of my work, through my whole professional life, has come from commissions, so in terms of the work that I do that I care about for myself, very little. I mean this is over like a 25 year career. Not much of that comes from royalties, but a great deal comes from people just commissioning stuff. And that is, I think, how most artists make money.
But yeah, I don’t know, in publishing, if you can get the attention, that model works great.
Benson: Well, it seems to work for certain fiction writers who maybe self-published or Amazon and then become a bestseller on Amazon, and then they pick up a publisher, and then it turns into a movie or something like that, but again, that’s one in a million.
Paley: Well, that’s the copyright model, right, having it turned into a movie or getting a publisher.
Benson: Oh sure, yeah, that’s not having your personal web page and but it’s even that is, I mean, even the commercial model is pretty hard.
Paley: Well, the commercial model is much more lottery-like, I think, than the free-sharing model. A lot of artists and authors use Patreon right now and even some journalists.
And I think it does work for specialty things people that do really specialty writing for a particular niche. I do donate, that’s what I was qualifying with my low income this year, right, so I don’t donate a lot but I give donations to like the Internet Archive, right, using the Internet Archive, and here’s some money, you know, there’s somebody that will match it times three, and I think, Oh, I’ll send them some money right now.
There’s some free software that I use, like AdBlocker, right, AdBlocker requests a donation, and then I go, all right, I’ll do that, I don’t have tons of money, but that is quite reasonable. So I do think people do that, and I do think if you add like a little nag message, which I don’t, by the way, like I don’t have any nagging pop-ups when people download anything of mine, it’s completely free, but I imagine if I had some way of adding those, I would get more donations, and maybe when I released my next film, I will try that.
Benson: And so when do you expect your next film to come out?
Paley: Well, I was hoping it was going to come out like now, but I made a rough cut in December, and it just wasn’t quite there, so I am rebuilding a lot of it, and making some new scenes, and maybe in six months? And then I don’t know if it’ll be out, right, because I would like to be in film festivals first, and that means that I would like to at least premiere at a film festival prior to the release, and there’s the fact that I will never actually release the actual film because that would be illegal because the new film is more illegal than Sita Sings the Blues was, so the official version of Seder Masochism will be a very damaged and compromised product because all of the music that I’m using in order to comply with the law, I will remove it prior to any sort of official version that could be sold on a D.V.D. or something. So the real version of this film, with all the music intact, that will be illegal, and I certainly won’t release that.
Someone else might, illegally, it might, you know, someone might get ahold of an illegal copy, and then put it on, you know, a torrent site or something like that, but it is definitely not going to be me.
Benson: Fair enough. So do you have any parting advice for artists who haven’t had your experience with Sita Sings the Blues, and maybe are skeptical about the free culture movement. Do you have any anything to say about that?
Paley: Well, okay, so a selfish thing I can say is, if you’re into copyright, by all means, embrace copyright, because to some extent all artists are competing with each other for attention, and people who lock down their work of copyright are basically making more attention available for me, so I don’t, you know, if you’re into that model, great. You know, go crazy, hold on to it while I’m giving mine away for free.
But I mean, artists… Advice for artists…
I mean, if you’re an artist, you probably already learned not to listen to other people’s advice.
At least, I hope so, the less you listen to other people’s advice, the better an artist you’re likely to be.
I do recommend people read Civil Disobedience if they haven’t already.
I think many artists do think critically or differently about society and rules of society and laws and things like that. Civil Disobedience is a good read because I am not at all an advocate of flouting the law for its own sake.
But I do think that if you encounter something that is fundamentally unjust, you’ve got to decide what you’re going to do about it, and I consider the copyright, I consider the art that I’m doing actually, since what I’m making is technically illegal art, that is a form of civil disobedience. And when the law says that you cannot make this or that art, there is something wrong with the law, and I am in a position where I can take these risks, like I don’t own any property, back to my low income right, like I’m making an illegal film. And I could have chosen a few years ago to go a different direction and make a lot more money, and buy a house and have this property, but I really want to make this film, Seder Masochism, and one of the decisions I made prior to making it was, I was going to use any music I wanted, and that the film was going to be guided by what was best for the film, and I was going to be guided completely by my muse, and not by my fear or laws or anything like that. So that is the most important thing to me. The less property I own, the better.
Under these circumstances, there’s really not much to get if somebody sues me.
And the fact that I have made these choices puts me in a position where I can do this kind of activism, and everybody can decide what level of risk they’re willing to take. This is a level of risk I’m willing to take.
Benson: Well, I find that really inspirational, and I hope to see some version of your film when it’s out. I hope I see the undoctored version, but I guess I’ll have to go to a festival or something like that, if I want to see it or maybe come to your house watch it in your living room.
Paley: Yeah. We can talk about that.
Benson: We’ll figure it out. Well, it’s been great having you, and I wish you all the best as you work through your latest project and I’ll be sure to link to your blog and Sita Sings the Blues when I put this podcast episode out. Thanks for being here today.
Benson: Hello, and welcome to an edition of Copyright Chat. Today, I’m going to be here with Harriett Green, who is the Head of Scholarly Communication and Publishing at the University of Illinois Library, and we are going to chat about the Scholarly Communication Institute that we just attended in November. Hi, Harriet.
Green: Hi Sara, thanks for having me on here.
Benson: Thanks for being here. So for those of you who are not familiar with the Triangle Scholarly Communication Institute that occurs in November at the University of
Green: North Carolina at Chapel Hill.
Benson: Exactly
Green: And Duke.
Benson: And Duke. It is a wonderful kind of think-tank experience. Is that how you would describe it, Harriett?
Green: Yes, just a research retreat.
Benson: Yeah.
Green: That’s highly selective.
Benson: Yeah. So people submit, as teams of scholars, proposals about a research project that they really would like to dive into as a group, in-person, during this institute, and then we spend about three days eating enormous amounts of food.
Green: Yes.
Benson: There’s a lot of food involved and a lot of coffee, and we do some activities together in our group, and we also report out to the other groups, and kind of discuss as a whole. And so we just participated in this, and I’ll have Harriet describe our project to you a little bit.
Green: Great, so our project was focused, the title escapes me at the point, but we can put a link to the project [https://trianglesci.org/2017/07/21/a-new-digital-publishing-framework-for-exploring-and-reflecting-non-textual-cultural-narratives/], but we have a team of me, with my expertise in scholarly publishing, Sara and her expertise in copyright, Brad Tober, who’s a professor at Boston University in Art and Design, and Camee Maddox who’s a post-doctoral scholar at the University of Maryland-Baltimore County and in anthropology, and together, we came up with a research project to think through, what does it mean to do digital publications with works of cultural heritage, in particular, indigenous cultural heritage of communities who have particular cultural traditions that aren’t in the same way that we usually treat text, images, and other works of culture and art. There’s been a number of works addressing this issue, from Kim Christen and Mukurtu, and with, you know, different things with repatriation and cultural heritage, and so we wanted to take it a step further and think about how do we disseminate and create digital publications. So we spent the week of Triangle SCI exploring these questions. Camee Maddox was, essentially, our case study. So it us was centering around her work as a dance anthropologist studying cultural dance in Martinique, an island in the Caribbean that’s a French protectorate, and her work that involves the African Diaspora, colonialism, and post-colonialism, and again, cultural works. So this is what we started to focus on, we started to work on that project, and now we’re moving forward with it.
Benson: Yeah, and Camee’s work is really cool because she actually went to Martinique to study for her book that she’s writing about the Bele dance movement, and she became a part of the movement. I mean, she started dancing the dance, and there are videos that she has of her participating in the dance, and it almost looks like she was born to do this dance. I mean, she’s very much a part of the community, and through that trust with the community, she’s really been able to build partnerships, and so one of the questions that I am looking at is the co-option of work from indigenous and less-represented communities by the majority and using that work in ways maybe that aren’t necessarily what they wish would be done with the work, and how can we avoid that, right.
So I think with Camee’s participation in the dance and with the community, she’s really gained their trust, and that’s a good thing to be able to then use their own input to help shape the project going forward so that it looks and feels the way they would want it to look, and one of the things that we’ve been contemplating is having kind of different projects. So one would be a companion to her physical book, right, that would be like an online presence where you could actually find out more information and maybe see some dances online, but another project would be kind of a project led by and for the community itself where they could then input their own data and their own experiences into this repository which would maintain their culture for the future generations, and it would be less outward-focused and more inward-focused, and I think it’s along the lines of Mukurtu, and that might be a good fit for it, but we’re not really sure at this point what they, they meaning the community, would want it to look like. And so it’s kind of an exciting thing, in terms of the traditional cultural expressions and thinking about how to really engage with communities and not take over their property, which has been happening for so long and to help them kind of really have ownership and pride in their own culture, and that’s a really exciting part. I just love listening to Camee talk about the community because she really has a passion for the different expressions that they have in their dance and through the meaning that they attribute to the dance, in terms of using it in the streets when there’s a strike, for instance, and people ascribing spirituality to the movements that maybe wasn’t ever present before and really kind of taking back their original roots and going back to feeling at home in their own skin in a way that, since they’ve been really part of a culture that they feel like they don’t really fit into, so it’s a really interesting case study, but hopefully, it could be expanded a little further.
Green: Right, and that’s what makes the richness of Camee’s case study, will hopefully allow us to build a model of how do we work with traditional cultural expression, and for Brad Tober’s part, you know, how do we design these systems and platforms inner-activities and user interfaces for this digital platform or digital publication and whichever forms it takes, and then, yes, how do we work with other communities, how do we use the types of workflows, the types of community engagement that we see with Camee’s case study, and really, her exemplary work in connecting to that community with future projects, and one really wonderful thing at SCI as we talked with the other teams, they had a number of ideas of communities that we could reach out to, other Native American communities, and other indigenous communities around the world who are have done this work or who are really seeking to do this work and how our model that we build could potentially benefit and how we might connect to those communities. And so having the interactivity at SCI allowed us to not only delve deeper into Camee’s case study but also think through how can we start building this as a model to share with others.
Benson: Yeah, and I would encourage those who have interdisciplinary scholarly communication ideas and work flows that they really need the time to delve deeply into to consider the Triangle SCI conference. It’s really unique. I’ve never been to a conference quite like it, where you really have so much free time, and so much time away from your other obligations at work and meetings and all those other things to really think exclusively about a particular issue.
Green: And we should mention, it’s funded by the Andrew W. Mellon Foundation, who funds a number of wonderful projects and initiatives for especially, the humanities and social sciences, so having that space and having the support that allows them to bring people really from all over the world to interact in this way is a really valuable experience.
Benson: And it’s also a lot of fun.
Green: Yes.
Benson: We got to play some games at the bar. So that’s fun, and just meeting so many different people who are thinking about so many different things. This year’s topic was Storytelling through Scholarly Communications, and one of the groups was doing a project about food, and they really thought outside the box because they had the chef at the conference hotel come in and talk about a dish and talk about where the ingredients came from, and then they had other people talking about food, and they kind of wanted to develop more of a connection between people and the things that they’re eating, so that they understand the environmental impact and the health impact and the community impact of the food that they eat. So there are some really interesting conversations that happen there.
Green: And that highlights a key thing about the SCI is, you know, scholarly communication as a field, we often think it really is the domain of librarians and publishers and, you know, the traditional stakeholders, but SCI really tries to punch that box open, and the types of people that were coming, there were anthropologists, there were storytellers, there were technologists, people from the full gamut of scholarship and of community, of the arts, of culture in the arts, and really think through scholarly communication and not just journalism, monographs, although, you know, a lot of our work talked about, how do we disseminate scholarship, but really thinking through what are all the ways that we connect, that we engage, that we tell our stories, in this instance, and what can we do to really be innovative and experimental and completely creative, and how we do that, and, you know, one thing I took away from SCI, just from my day-to-day work, was really rethinking, how do I think about scholarly communication, how do I talk with faculty and students about this type of engaging with communities, and, you know, what can we do to really help people make use of all the different tools we have at our hands, both digitally and just our own talents and interests, to share our stories.
Benson: That’s a really great point. You really start thinking outside the box, and start thinking broadly about different issues, and you make some great friends.
Green: Yes.
Benson: I actually got some mail from Ruth’s Stotter. Shout out to Ruth. She sent me her children’s books because we had a conversation during lunch about how I have a daughter, and she wrote some children’s books, so that was really fun to get some mail from her.
Green: That’s so great.
Benson: And I feel like I’ve made some friends for life there, and it’s just going to be fun to kind of watch their scholarship grow over time and see where where it takes them. So I really encourage people to think about this as a possibility, as an unconference going forward, if you have a project that you think might benefit from a deep dive, and some time away from your daily work with other like-minded scholars, it’s just a magical place. So I really encourage people to think about it, to get involved, to follow what people are doing, and to just be a part of that community.
Green: Agreed.
Benson: All right, well thanks for joining me today, Harriett. This was a fun walk down memory lane, and hopefully, it inspires some other scholars to get involved in the Triangle SCI conference.
Sara: Welcome to an episode of copyright chat today we have a guest with us remotely—Kyra Folk-Farber. Kyra Folk-Farber is the head of the music library and chair of the library’s copyright advisory committee at the University of California Santa Barbara and she also serves as the chair of the Music Library Associations’ legislation committee. Welcome and thank you for joining us Kyra.
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 their daily lives.
Jonathan Band is an intellectual property law attorney for the Library Copyright Alliance. His website is www.policybandwidth.com.
The open review of Planned Obsolescence: 
Copyright First Responders Website
Referenced in this episode:
Blog: http://blog.ninapaley.com