Fair Use During the COVID-19 Quarantine

Sara Benson, Copyright Librarian

Welcome to a COVID 19 edition of copyright chat. I’m Sara Benson and today I don’t have a guest. It’s a little hard to have guests nowadays when we’re all standing six feet apart. But today I’m going to expound on fair use in the age of COVID 19 and I hope you’ll join me and maybe even learn a few things today. So what has brought us here, obviously the world is in a disaster right now. I mean it’s a pandemic. It’s a global nightmare. I was supposed to travel to the American library association meeting. I was supposed to travel to the digital symposium in San Diego. All of my travel has been canceled and I am currently under quarantine by the governor’s order. But what does this mean for copyright? Of course, we’re in an age where copyright is really easy to gain and it’s lasts for a very long time.

And as I like to tell my students and other professors and even other copyright librarians because we’ve struck that balance in terms of long copyright and easy to obtain copyright. We also have the public benefit weighing on the other side with multiple copyright exceptions including section 108 including fair use section 107 well which is a limitation, not an exception but and also the exception for face to face teaching and distance learning under the TEACH Act. I want to say one note about the Teach Act. I wrote a medium article, I’ll link to it from this podcast post criticizing the copyright office blog. They recently asked a lawyer to vocalize support for using the TEACH Act section 110(2). In these times of uncertainty when moving your courses online rapidly, I think that that recommendation is laughable at best.

Why? Because most copyright librarians know that the TEACH Act is not a useful act. It is so burdensome on the copyright user, on the person who is trying to teach online that most of the requirements render it meaningless. For instance, you are supposed to immediately take down any copyrighted works that you use, say in a PowerPoint as you’re teaching. But at the university of Illinois, at the school of information science for instance, we record all of our online teaching sessions and we leave them available for students who couldn’t attend class, which is even more important today in the age of COVID 19 where many students are moving to their homes, away from their college dorm or college apartment. Maybe they’re ill, maybe they have COVID 19, maybe they are mentally not handling things very well. Maybe they have a high level of anxiety which is interfering with their ability to concentrate.

Whatever the reason our students may not be able to attend class during the regularly scheduled time and having those resources, those class sessions recorded available online for them to watch later is really important. Especially important right now during the era of social distancing. And so the teach act does not allow for that. It says that we have to, you know, delete anything we’ve made. We can’t allow the students to access that material after class. The class session and there are a host of other requirements such as using anti-circumvention technology and also instructing students and professors about copyright and having a university copyright policy. A lot of these things are just not in place. And so I would say that it is not helpful to suggest that people scramble to try to use that the teach act in these times. Instead, what we should really be focusing on is empowering people to use what they already have their fair use rights.

And that is what a group of copyright librarians nationwide and myself included have advocated. So we’ve written a statement in favor of a broader use of fair use in this time for teaching and learning and research and scholarship purposes. And the rationale is fairly simple, right? It’s that we can’t use our normal practices. I’ve never in my life experienced something so different and so abnormal as this quarantine. And in this time of the quarantine, my library services are physically at least shut down. So you cannot go into the library to check out a physical book, which would of course, um, invoke the right of first sale where the library would be able to lend you the book and you wouldn’t need to make a copy of it. Unfortunately, we don’t have that available. What we also don’t have available right now is interlibrary loan because we don’t have faculty or staff in the library making those copies.

So this is a time when for the health and safety of the public, we need to exercise fair use because we cannot exercise our section 108 rights for instance, or exercise our first sale rights, some of the things that we already had. And I’ll give you an example where I feel that we’re really not harming the marketplace. Here’s one example. Let’s say, um, your students had to buy a course pack, uh, at the beginning of the semester. And right now we’re midpoint through the semester, right? So they bought the course pack, but they, in their haste for leaving campus on spring break, they didn’t bring it with them. They, of course have already paid the licensing fees for that course pack because they purchased it. Should we then require them to buy another version of the course pack, say an electronic version? Or should we be able to exercise fair use and scan that copy for them with digital management software so they can’t just download it and share it with other people because they’ve already paid the licensing fees.

Now I would argue that that’s a fair use. Others would say no, but this is, these are the kinds of questions we are having to face right now. Another example is say a student purchased a textbook and it was not a cheap textbook and they’re already three quarters of the way through the textbook. Should we require them to then purchase another textbook and have it shipped to their home or are we in a realm where somehow making that available to them electronically would be acceptable? We also don’t even necessarily have a way to make it accessible to them if we don’t have staff in the buildings making copies. So this is may even be a moot question. Um, but I will say that the internet archive has really been providing a service to libraries, particularly where I’ve heard the issue is with public, uh, high school librarians where students are about to, um, read some fiction for their senior English class for instance.

And the books have been purchased. They are sitting at the library in the school, but the students cannot go to school. I just received a memo from our, um, school district today that the school will not be physically back in session at least until April 30th and that may even be extended so they cannot get to those books. So now what? Well, what the internet archive has been doing is allowing access to in copyright works through digital lending. And in the past they had been lending just one copy of the book. So if they had a physical copy of the book, they would lend one copy of the book, especially in the last 20 years of copyright protection. Those books would be available and they’ve opened that up to allowing more than just one to one ratio of the books being available. And of course it has put them in the crossfires of publishers and authors who are upset that their book is available for purchase and now is being lent.

So of course they will respond to author, take down notices, but for folks who are trying to get access to learning for their students, for instance, I’ll give a great example, which is the great Gatsby. It’s in its very last copyright year, the last year it’s going to be in the public domain so soon. And yet a lot of students in school are reading that book and so the internet archive can lend it out at no charge. It’s really probably not harming the marketplace very much because it’s almost out of copyright anyway. So we have a lot of those really great examples where that seems like a no brainer. Like please allow people to use the Great Gatsby for learning. We have other examples that are less clear, right? Where something is, is available. It’s newly copyrighted, it’s not as old. It is available for purchase.

So these, these, these issues are not black and white. They are definitely and a shade of gray. And I think unfortunately when making these quick decisions and making things available, they’ve had to make broad swaths of things available because they don’t know who needs what and what their purpose is. So I think the internet archive, at least from the copyright librarian perspective, I think is doing a great service. But I do see where I think they’re going to have to respond to a lot of take down notices and time will tell if that is enough to um, appease the authors who are kind of a little bit upset, I think for good reason with some of these practices. Another example of what has been happening is the HathiTrust digital library is making, um, some of the works that are in copyright that have been digitized from individual libraries available to those libraries.

So the book physically is in our library. We scanned it and gave it HathiTrust, but we didn’t have access to that scan. And so I think this is a really great exercise, a fair use, and it’s not really broad. It’s right, it’s giving us access to what we already would have had access to. We just can’t get to the physical books because they’re in our library and we can’t go into it. So that’s less I would say risky move and I really appreciate it. So those are a couple things that are happening in addition to, as I said, the statement that was made by copyright librarians. So what do I think this will all lead to? I actually think that after this calamity is over, we will have a broader sense of people being willing to assert, fair use, right?

Because I think until now a lot of folks have been very reticent to, to use fair use. They’ve been afraid of getting sued. They’ve been afraid of exercising that. Right. But I think now folks don’t really have a choice often. Right? Especially if you’re teaching online like I am. You kind of have to do it. If you don’t have a, the TEACH Act exception applying, which I don’t, um, cause my institution doesn’t really comply, then you’re, you’re going to have to find yourself in fair use, uh, waters and get more comfortable with it. And so I’m hoping, I’m really hoping that one of the outcomes of this whole mess that we’re in right now is that folks will continue to use fair use in a more, um, productive way and be a little bit less risk averse. That’s what I’m hopeful. I don’t know, time will tell if that’s a true thing because I know some people feel more comfortable exercising fair use right now because of the emergency nature of the exercise of the right.

But I do think if they’re willing to use it then they maybe are feeling more confident with it and more an understanding it a bit better and hopefully they’ll feel a little bit more empowered going forward. So those are just some of my thoughts as I am locked in my home. Like all of you, I’m thinking through copyright issues on a daily basis, answering questions, um, from all sorts of different parts of campus. And, I really hope that this left you with a little bit of information. I will definitely share links to all of the things that I’ve mentioned. And, the last thing I want to do, last thing I’ll say is that I really am so happy to be a part of the copyright librarian community because they’ve really come together and put together zoom consult hours for anyone nationwide and an academic or research library who has copyright questions. And I know they’ve been super valuable to people. And so, um, I hope that you take the time to, um, look at that schedule and, and talk to the folks that are available to answer questions. In addition to looking at the kind of best practices documents that I’ll link from this podcast episode, so be well, stay safe. And, hopefully I will have another guest on copyright chat soon. Bye. Bye.

Resources

Fair Use in the Age of COVID-19: https://medium.com/@srbenson/fair-use-in-the-age-of-covid-19-6ffc84d4c690

Virtual Copyright Office Hours: https://tinyurl.com/wf9gzu6

Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research: https://tinyurl.com/tvnty3a

Reading Aloud:  Fair Use Enables Translating Classroom Practice to Online Learning: https://tinyurl.com/read-aloud-online

Chapter 3 of Copyright Conversations: Rights Literacy in a Digital World (ACRL 2019), Fear and Fair Use:  Addressing the Affective Domain by Sara R. Benson, https://www.ideals.illinois.edu/handle/2142/105485

Vendor COVID-19 Related Donations and Pro Bono Access: https://tinyurl.com/vendorsupportedaccess

Chapter 10 of Copyright Conversations: Rights Literacy in a Digital World (ACRL 2019), Online Classrooms: Is the TEACH Act Enough? by Carla S. Myers, https://sc.lib.miamioh.edu/handle/2374.MIA/6550

LSU’s TEACH Act Toolkit: https://www.lib.lsu.edu/services/copyright/teach/index

A guide to Copyright Issues when Rapidly Shifting a Course Online, available at:  https://go.illinois.edu/rapidshift

Sara Benson, The Copyright Implications for Teaching with Videos on CopyrightLaws.com, available at:  https://www.copyrightlaws.com/copyright-implications-teaching-with-videos/