Elizabeth Townsend Gard Measures Copyright with the Durationator

Elizabeth Townsend Gard Measures Copyright with the Durationator



Durationator: https://www.durationator.com

“Just Wanna Quilt”: https://itunes.apple.com/us/podcast/id1341376118


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.

Music credit: http://www.bensound.com/royalty-free-music