Also check out the ALA Policy Corps as well as the ALA Advocacy website
Sara: Welcome to another episode of Copyright Chat. It’s been a hot minute sorry about that everybody but today we have a very special guest. We have Jim, Neil. Hi, Jim!
Jim: Hi! How are you?
Sara: Great! And Jim is the University library in emeritus at Columbia University. He also served as ALA President, and he received 2 awards from the ALA, the highest award on as an honorary member in 2022, as well as the L. Ray Patterson copyright award. Congratulations Jim!
Jim: Thanks, Sara.
Sara: So, Jim, I just wanted to get started. How did you get involved in copyright, as you’re not a lawyer by training. But you’ve been such an advocate in the copyright field and I’m just curious how you got involved in in the beginning.
Jim: Well, it it actually goes way back to the early 1970s. I graduated from Columbia School of Library Service at the end of 1972 and began working as a librarian the following year, and you’ll recall this is when a lot of the discussion and debate began to revolve around the updating and modification of the US Copyright Law. And so my early professional career was advanced during this period of time, and I participated in many of the early discussions that led up to the 1976 copyright law.
And so I was born in the context of fair use and the context of the exceptions, the limitations that define the ability of libraries to serve their communities.
I hung out with copyright in a pretty low level way until the late 1980s, and it was at that time when so much of our work had become automated, and we’re beginning to see the early publication of the things that we had historically acquired in print were now becoming available electronically, and of course that would explode in the 1990s.
It was also the time that two other things happened. one in the mid-1980s, I’d become very interested in national information policy and my initial plunge into that was in the area of government information: Making sure that the information the Government produced was widely and openly available and accessible.
But, in 1990s I also became Dean of University Libraries at Indiana University, and that was at that time that I recognized how important it was for up or major research libraries, and by extension all academic libraries, to play a significant role as new thinking about copyright began to evolve.
I worked with the Association of College and Research Libraries. I worked with the Board of ARL, of which I was then a member, to really position us as associations that were part of the national debate around copyright.
I also worked with Indiana University to create what I think was the first University library-based copyright advisory office at Indiana University based in Indianapolis and we hired Kenny Crews at that time to run that office. And so I began to meet with groups of librarians around the country, with different boards to develop strategic direction and actions around copyright.
And when I made to move from Indiana to Johns Hopkins where we created a similar copyright office. I got a call from Washington asking me if I would be willing to join the US delegation that was going to go off to Geneva to participate in the World Intellectual Property Organization, a diplomatic conference negotiations on copyright, the basic objective being to update the international copyright law to reflect the digital and network environment in which we were operating.
So I went off for 3 weeks to Geneva, was an advisor to the US delegation.
I tried to get exceptions, limitations, and fair use into the discussion and the debate and that ultimately, of course, led to the adoption of the Digital Millennium Copyright Act in the United States.
So that sort of explains the early involvement in participation.
Sara: Sounds like it was an adventure beginning with the change to the Copyright Act in 1976 all the way through the Digital Millienium Copyright Act, which, of course, is still debated today.
And the library exceptions which we’re still trying to get at an international level today, so it’s still ongoing. This work never ends, Jim, when is it going to end?
Jim: I think it’s perpetual.
You know we play a lot of defense in the area of copyright not wanting to open up discussions about aspects of the copyright law that really benefit us and enable us to support our communities, but there’s been so much effort to strengthen copyright on behalf of the copyright creators, and therefore we’ve been active in Washington for the last 20 years, trying to prevent unnecessary, inappropriate, and difficult to work with copyright changes coming out of Washington. We’ve also had to deal with several important initiatives at the State level during that period as well. And I think we generally have been have done okay. We tried to work with the creator community to update section 108 of the copyright law, which is that section which specifically provides the exceptions and limitations for libraries and artists enabling us to do things like inter library loan, and make preservation copies, and copies for users, and so forth.
But we did not come out of that 3-year process. I was on the 108 study group.
We did not come out of that process with an acceptable plan of action that would enable all interested parties to reopen 108 and make the necessary changes.
And so that was an interesting process. and I learned a lot about how copyright works. And who is involved, and what the relationship is between the publishing industry ,the creator industry, and the copyright office in Washington. So we’ve done, I think, modestly well representing libraries, but there’s so much more work to do.
Sara: You mentioned the section 108 study, and I do assign that discussion document from the US Copyright office that came out of that study to my students and often they say to me, Professor Benson, why hasn’t this happened? What’s going on? There’s a model law at the end. Why has this not happened? My perspective, and I wonder what your perspective is, is that potentially opening up section 108 could be problematic. Given what happened with some other portions of the Copyright Act, such as the TEACH Act that went South.
I mean the TEACH Act is good in theory. If you’re, unfamiliar with the TEACH Act it provides online opportunities for educational uses of certain works it’s supposed to mirror the face-to-face teaching exception under Section 110(1). It’s in section 110(2) of the Act, but unfortunately it became so cumbersome to apply that most universities, including mine, don’t really exercise it.
And I wonder what your perspective is about opening up section if we were to do that today?
Jim: I think it would be very difficult and challenging, and we would put our ability to serve our communities at risk.
One of the real important debates within the 3 years of the 108 study group was are digital works covered by exceptions and limitations in copyright?
And what is the role and purpose of contracts, licenses that libraries sign with publishers and other creator companies.
What rules govern the use of those materials? And I think it’s clear from litigation and from legislation that there are really two streams of guidance. One is if it’s in print, you’re probably going to be able to apply the exceptions and limitations in section 108.
If it’s in digital form, you’re probably going to be mandated to use the provisions of the contract, the license agreement that you sign. The public law of copyright versus the private law of contract. And the problems that I have with that are that it means that I put this in the area of social justice. I always have. If you have good lawyers, if you have a lot of money. If you have influence you have good connections, you’re probably going to be able to negotiate a better contract, a more favorable contract, then the smaller instructions that don’t have good legal counsel don’t have a lot of money, and are gonna just defer to the contract that they sign.
To me, that is an issue of social justice and it’s on that basis that I fought this from the very beginning. I think we don’t want to open one way. It could really create a real risk to our ability to serve our communities.
We have seen other initiatives coming out of Washington besides the TEACH Act.
We recently went through the crazy CASE Act deliberations, and worked very hard in this provision of creating a small claims court capacity for people to get sued for supposed violations of copyright and making sure that libraries and library staff were exempt from those lawsuits. So I think it’s going to be a constant battle, and I think, with a new Congress coming on board in the fall—and we’re not quite sure what the political makeup will be of the Congress at this point, but we have we have some thinking about that, will there be new initiatives to upset the balance that we’ve enjoyed in the copyright arena.
We’re also seeing more what I would call legal court cases around copyright, than historically, we experienced. And I think what we don’t want to happen is that judicial decisions begin to define what copyright is in this country, and I think that’s going to be a real challenge going forward. Copyright for most of the American population has been one of those “MEGO” topics—my eyes glaze over. People don’t really know what it is or care about it, or know that they should care about it, and we’ve seen over the last decade or so copyright appearing on the front pages of newspapers and hitting the popular press in the areas of music and film, and art. And so people, I think, are a little bit more aware of copyright.
But too often, I think they assume that they’re protected because they hear the words fair use, and they think if they’re not out there trying to make money and copying stuff willy nilly that somehow they’re not subject to the provisions and the protections of copyright. So I think I think court cases could become more important going forward.
Sara: Yeah, that’s a really good point and one of those court cases was in Maryland recently, with the e-book legislation, where they attempted to impose reasonable terms for libraries on e-book licensing at the state law level, and it was deemed by the court to be in violation of copyright preemption.
And I wonder what your views are on that. I mean. You mentioned licensing earlier, and it really is becoming one of these issues, especially for public libraries.
It’s a place where you know in order to serve their patrons public libraries really need to have access to these e-books, and yet the licensing terms can be quite expensive and limiting. Where do you see this going?
Jim: Well, I think there’s a whole series of issues that are bundled up in digital content and copyright, and we’ve mentioned two of them. The one you reference of which Maryland is probably the most celebrated. I use that word carefully, celebrated case, but it also has progressed in several other States, not successfully. And it’s as you educate it’s largely a public library issue because they want to provide a maximum access to their to their communities for the books that people want to read and material that people want to listen to. But if they can’t, even buy this stuff if they can’t even license the stuff under any terms, then I think it’s a real problem.
And so the first issue is, will libraries be able to license this stuff and can publishers block libraries from getting these materials? The second is the terms under which they license and onerous terms.
A single reader at a time. Issues of cost.
I could buy the book for $20 but to license, a copy, $80. Those are onerous financial and use terms.
So that’s one stream of concern.
The second stream of concern is that we over many decades under section 108, have learned what we can do to in terms of supporting our community through inter library loan and preservation and copies for users under an analog, print-based environment.
But when the contracts begin to limit what we can do.
For example, we had, about 15 years ago, a major hassle when these licenses from major scholarly publishers said we could not loan things on inter-library loan internationally: we could only loan them to people or institutions in the United States. That was a shock and a signal that these license terms would continue to deteriorate and close up. And so, we fought that battle and several of the major publishers backed off. So I think we need to always be vigilant and we need to understand that contract is where we’re playing ball today.
And therefore we have to negotiate effectively and play hardball in order to get the best terms we can because of those uses of digital materials probably will not be covered under the exceptions of limitations and copyright.
Sara: So where do you see opportunities? I mean, there is a really amazing law in Singapore, for instance, that says that you cannot contract away your copyright exceptions and limitations. Could we get that in the United States at least for libraries and archives?
Jim: Well, that was our hope. About 2 years ago I convened a meeting in Washington at the ALA Washington Office, and this was the subject of our discussion is what is achievable. What are the domestic—t hat is national—opportunities and limitations, and what is happening internationally.
And we had a representative there from the international federation of library associations who updated us on the Singapore Bill and the work that was going on in other countries around the world.
It’s very difficult. This was an issue that came up under 108. We tried to get a provision that said a contract could never undermine copyright.
We could not give away the exceptions. of limitations under copyright and the publishers and the other members of the contact community wouldn’t even talk about it. And so, therefore it’s going to be not only a process challenge but it’s going to be a very difficult political challenge, because, many of the leading legislators in Washington one don’t understand the issue and two very often get financial support from the large media and publisher companies.
So it’s it’s gonna be a tough battle.
Sara: Just to point out a counterpoint to that I would point to the fact that with physical books we’ve been successfully using interlibrary Loan for years and years and we have not depleted the publishing market, and I understand the concern of publishers there, right, saying,wWell, now, interlibrary loan is baked into every contract. Fair use would be baked in if you’re a really good negotiator. You should have in regardless. That gets to the social justice issue you mentioned earlier. But if everyone had it by default through libraries and archives in my opinion, publishers would still be making profits, and the reason is that inter library loan can never substitute for a subscription to an item right, and we do keep track, and we have to by law keep track of our inter library loan agreements and our lending and pay licensing fees.
When we have hit a certain mark where, if we had otherwise just purchased the item we would not be able to loan it. So we could have similar things right in place for digital objects that we do for physical objects. And maybe this all could still operate with everyone on a fair level.
I think the issue for me personally is that we like libraries are really not a fair level right, especially public libraries, where you have the demand of the public, and you’re trying to serve your population who pays the taxes that puts the books in their hands right? And they have this expectation that not only are physical books available, e-books are going to be available, and with the pandemic and mobility issues, we have more and more instances where folks cannot come into the library in person, and we really should be providing those e-books to our communities.
And so I I think we’re at a real disadvantage.
And this is where we’re gonna need some strong advocacy right?
And I think this is where you, Jim, have been so much at the forefront here, creating the ALA Policy Corps for that purpose.
So I wanted to kind of switch gears and talk about you know why.
Why did you create the ALA Policy Corps? What are the goals of that group?
Jim: Let me let me make one other statement about digital lending? We I think, from a published perspective it’s a slippery slope, I think, by having to negotiate those terms in a contract it does give publishers some leverage in terms of a price. So I think I think, there’s a real interest in preserving that control within the publisher community. We saw we had some recent experience with that under control digital lending where we have tried to build some responsible approaches to digital lending interlock very loan and tried to extend that under the impact of Covid and have to hold back already. if you will post Covid. But we have seen the library community through the Internet Archive end up in court of that issue. So I think libraries and universities and communities are fearful of litigation. And are going to probably take a more conservative approach.
Not go out there and fight the battle, which I think has to happen and big basically give in to the publishers on this.
But I think court cases hopefully will come along that might help us in this area.
As I mentioned, I started my work, and national information policy in the in the area of government information.
In the mid 1990s several universities, including the one where I was, Penn State, was experiencing FBI increase about materials being requested by international students who were studying at our universities.
This was my introduction to issues around privacy. And then, after 911 of the U.S.A. Patriot Act introduce a set of controls interventions by legal authorities that, we’re severely problematic and difficult for libraries, and I became very active on that issue.
Advising libraries, giving workshops, going public, with my opposition, and at that same time I became very involved in the work of the freedom to read Foundation, where I’ve sort of served on that board for many years and have become involved in national intellectual freedom debates.
And so all of this experience, including my work, with copyright demonstrated to me how important it is for the library community to have authoritative expert voices at the table. And historically we’ve had a few individuals who have been willing to keep up on a particular policy issue, who have been willing to get at the table and fight the battle by testifying before committees at the state the national level developing, op-ed pieces, editorial pieces for publication in the press sitting down with partners to develop political strategies, and any of those individuals have been retiring over the last decade, and so I felt we really need to develop an ongoing cohort of individuals are truly committed to working on behalf of the library communities developing information policy areas. And so we agreed to begin it on an experimental basis, and we recruited, I think, 12 individuals that first year on a competitive basis, and they’ve been working over the last 3 to 4 years developing their knowledge of their policy interest area. But more importantly, developing the skills and understanding to be an effective advocate. And we have now have 4 more cohorts of Policy Corps people.
Next year we’ll be looking at how we proceed with the fifth cohort. Covid was a challenging time for us with the policy corps because of the inability to bring people together. we’re now beginning to do that again. and so I’m hopeful that we can continue to develop a very strong representation for library leaders in the information policy area.
The other thing we worked on in parallel was what I call the National Advocacy Network, to try to get a representative, at least one representative for the library community in each of the 435 Congressional districts.
So when something came up in Washington, where we really needed advocacy at the local level, so convince our members of Congress Representatives and our Senators that they needed to support our interests in these debates, we would have be on the ground if you will grassroots capacity to influence their thinking. so I’m hoping that over time, and as we break out from Covid, the combination of the policy core and the national advocacy network will provide benefits to the library community it’s wonderful program, and I think we’ve seen quite a bit of movement there.
Sara: Can you talk about some of the successes we’ve had through the Policy Corps? I’m a member of the third cohort and I’ve done quite a few webinars and published updates about the CASE Act. What are some of the other things that we’ve seen come out of the policy core?
Jim: Well, I think many of the members of the policy core have been very active, educating their colleagues at the local and national level, either through, as you said, webinars, writing for the field, and so forth. But as importantly, if not more importantly, some of the policy corps members have been very active with their with their local Congress people.
Their representatives and their senators that’s very important. A few have been going to Washington to meet with various groups and committees to try to influence funding and influence legislation that we care about. Several of them very active in writing op-ed pieces for their local newspapers. Several have been testified at the State level before State legislatures.
Another area that we have seen a real challenge over the last several years, and I think it’s gonna get very difficult going forward is the whole area around banning books in libraries.
It’s perhaps most active in schools, but also is now beginning to play out in public libraries. And I think that’s been another area where the policy corps has been very active and trying to influence understanding and to have impact on some of these really egregious actions on the part of local politicians. So overall I think the policy corps has been successful. We’ve developed our skills. And now that has to translate into real action at the State and Federal level.
Sara: Yeah, it’s a great point. We really have to do more than talk about things. We have to take some action and meet with our representatives. What advice do you have for folks listening to this podcast maybe they’re not members of the ALA Policy Corps but they want to take action as well, what could they do?
Jim: Well, I think it’s very important to become aware of, and to understand the information policy issues that we’re dealing with and the ALA office. That website is a great source of information there are lots of webinars. There’s this podcast. There are great sources of information to educate oneself. There’s literature, books, and articles that’s half the story.
The other half is being confident. Knowing what type of actions have impact. How do you influence people’s understanding and actions and that’s very important.
I think, at state level of ALA—the American Library Association—and the library community in general is really strengthened by State chapters.
There are, I think, 56 regional chapters. Most of them state-based that provide lots of legislative training. Lots of policy updating, and I think that’s a great place for people to begin that work to get involved at the State level to join their committees on legislation to go to their State legislative days and hopefully in the future to go to the national legislative days.
But to keep, continue to be educated and open to training, which I think is critical to success.
Sara: I agree, and also not to feel that some of these calls for action are not for you. The ALA is often saying, you know, respond to this.
Talk to your legislators about this issue, and sometimes people think well someone else will do it right.
But getting on the phone, and you know calling up your local congressperson’s office, and and saying, you know I work at this library. And this matters to me because of this those kinds of those kinds of outreach efforts do make a difference, and the more you do it the more they’re going to be familiar with who you are, and you’re gonna create those relationships.
So, not being afraid to pick up the phone, write an email message.
Write a handwritten letter, you know, whatever the whatever it may be, or sign a petition.
Jim: All of those things can really help and add up yeah there’s a couple other things that I really think it’s important to do. I think each library should know who the staff people are, in these Congressional offices, both the staff person in Washington and the Staff office at the local level.
Know those people. They’re the ones who influence the actions of their of their Senators at their representatives. So, get to know the staff. Secondly, invite the Congressperson to the library.
Get them there have an event where they can be visible.
They can be seen in a very favorable light by the voters in that community, and they can begin to identify with you library.
That’s really, really critical and I think those are those are steps that most libraries can take pretty easily, and I would encourage all libraries to leverage staff to do that.
Sara: Those are great points. And actually the point about staff is so crucial. When I went to the ALA day on the hill, we were speaking with a Congressperson’s staff member. And one thing we learned when speaking with this delightful young woman was that she worked in a library in college, and immediately it changed the tone of the conversation because she had firsthand knowledge of how important libraries are, how much we do for our community, and what a wonderful place it is to work right. And so she didn’t take much convincing when we’re asking for this funding. It’s so important to kind of get those stories from people because most folks have connections to libraries.
It’s not a hard sell when you ask them you know what’s, your experience with libraries, because they either went to a local library. I can’t tell you, how many times, I take my daughter to the library, and we come home with bushels of books because she’s such an avid reader, but as a mom that is an important thing for me and so people have those connections either through, you know, working in a library, going to the library, their university library, all of those different things.
So getting to know those making those personal connections is so important.
Jim: Yes, we’ve talked a lot about policy, issues, but when it really comes down to it. the overriding of legislative matter that most libraries deal with both at the local and State and Federal level is funding And so, having a good understanding of what finding bills are being considered.
What the history has been of your representatives support for library funding.
Have success stories available. How has you Library made a difference in the quality of research in the University? The quality of education in the school people be able to get jobs in the by working with the public library. All those examples and success stories can be very, very influential, because most Representatives and senators care about the economy.
And the degree to which people help, at which the library helps people find jobs helps people connect I think, can be really really powerful. so never, never forget success stories, particularly as it impacts funding debates.
Sara: Great point. And I really have enjoyed this conversation with you today. I hope the listeners have enjoyed it well, and we really encourage you to check out the ALA Policy Information and information about the Policy Corps if you’re interested and want to get involved. We are always happy to chat about that some more.
But thanks so much for joining me today, Jim it’s been a very fun conversation.
Jim: Thanks, Sarah. It’s been a great opportunity to talk about things alright see you next time