{"id":316,"date":"2020-04-08T00:21:31","date_gmt":"2020-04-08T00:21:31","guid":{"rendered":"https:\/\/wordpress.library.illinois.edu\/scholarlycommunications\/?post_type=podcast&p=316"},"modified":"2026-01-29T16:28:57","modified_gmt":"2026-01-29T16:28:57","slug":"fair-use-during-the-covid-19-quarantine","status":"publish","type":"podcast","link":"https:\/\/wordpress.library.illinois.edu\/scholarlycommunications\/podcast\/fair-use-during-the-covid-19-quarantine\/","title":{"rendered":"Fair Use During the COVID-19 Quarantine"},"content":{"rendered":"

\"SaraTranscript:<\/strong><\/p>\n

Welcome to a COVID 19 edition of copyright chat. I\u2019m Sara Benson and today I don\u2019t have a guest. It\u2019s a little hard to have guests nowadays when we\u2019re all standing six feet apart. But today I\u2019m going to expound on fair use in the age of COVID 19 and I hope you\u2019ll 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\u2019s a pandemic. It\u2019s 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\u2019s order. But what does this mean for copyright? Of course, we\u2019re in an age where copyright is really easy to gain and it\u2019s lasts for a very long time.<\/p>\n

And as I like to tell my students and other professors and even other copyright librarians because we\u2019ve 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\u2019ll 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.<\/p>\n

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\u2019re 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\u2019t 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\u2019re 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.<\/p>\n

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\u2019ve made. We can\u2019t 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.<\/p>\n

And that is what a group of copyright librarians nationwide and myself included have advocated. So we\u2019ve 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\u2019s that we can\u2019t use our normal practices. I\u2019ve 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\u2019t need to make a copy of it. Unfortunately, we don\u2019t have that available. What we also don\u2019t have available right now is interlibrary loan because we don\u2019t have faculty or staff in the library making those copies.<\/p>\n

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\u2019ll give you an example where I feel that we\u2019re really not harming the marketplace. Here\u2019s one example. Let\u2019s say, um, your students had to buy a course pack, uh, at the beginning of the semester. And right now we\u2019re midpoint through the semester, right? So they bought the course pack, but they, in their haste for leaving campus on spring break, they didn\u2019t 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\u2019t just download it and share it with other people because they\u2019ve already paid the licensing fees.<\/p>\n

Now I would argue that that\u2019s 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\u2019re 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\u2019t even necessarily have a way to make it accessible to them if we don\u2019t 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\u2019ve 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.<\/p>\n

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\u2019ve 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.<\/p>\n

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\u2019ll give a great example, which is the great Gatsby. It\u2019s in its very last copyright year, the last year it\u2019s 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\u2019s really probably not harming the marketplace very much because it\u2019s 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\u2019s newly copyrighted, it\u2019s not as old. It is available for purchase.<\/p>\n

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\u2019ve had to make broad swaths of things available because they don\u2019t 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\u2019re 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.<\/p>\n

So the book physically is in our library. We scanned it and gave it HathiTrust, but we didn\u2019t have access to that scan. And so I think this is a really great exercise, a fair use, and it\u2019s not really broad. It\u2019s right, it\u2019s giving us access to what we already would have had access to. We just can\u2019t get to the physical books because they\u2019re in our library and we can\u2019t go into it. So that\u2019s 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?<\/p>\n

Because I think until now a lot of folks have been very reticent to, to use fair use. They\u2019ve been afraid of getting sued. They\u2019ve been afraid of exercising that. Right. But I think now folks don\u2019t really have a choice often. Right? Especially if you\u2019re teaching online like I am. You kind of have to do it. If you don\u2019t have a, the TEACH Act exception applying, which I don\u2019t, um, cause my institution doesn\u2019t really comply, then you\u2019re, you\u2019re going to have to find yourself in fair use, uh, waters and get more comfortable with it. And so I\u2019m hoping, I\u2019m really hoping that one of the outcomes of this whole mess that we\u2019re 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\u2019s what I\u2019m hopeful. I don\u2019t know, time will tell if that\u2019s 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.<\/p>\n

But I do think if they\u2019re willing to use it then they maybe are feeling more confident with it and more an understanding it a bit better and hopefully they\u2019ll 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\u2019m 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\u2019ve mentioned. And, the last thing I want to do, last thing I\u2019ll say is that I really am so happy to be a part of the copyright librarian community because they\u2019ve 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\u2019ve 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\u2019ll link from this podcast episode, so be well, stay safe. And, hopefully I will have another guest on copyright chat soon. Bye. Bye.<\/p>\n

Resources<\/b><\/p>\n

Fair Use in the Age of COVID-19<\/a><\/p>\n

Virtual Copyright Office Hours<\/a><\/p>\n

Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research<\/a><\/p>\n

Reading Aloud:\u00a0 Fair Use Enables Translating Classroom Practice to Online Learning<\/a><\/p>\n

Chapter 3 of Copyright Conversations: Rights Literacy in a Digital World (ACRL 2019), Fear and Fair Use:\u00a0 Addressing the Affective Domain by Sara R. Benson<\/a><\/p>\n

Vendor COVID-19 Related Donations and Pro Bono Access<\/a><\/p>\n

Chapter 10 of Copyright Conversations: Rights Literacy in a Digital World (ACRL 2019), Online Classrooms: Is the TEACH Act Enough? by Carla S. Myers<\/a><\/p>\n

LSU\u2019s TEACH Act Toolkit<\/a><\/p>\n

A Guide to Copyright Issues when Rapidly Shifting a Course Online<\/a><\/p>\n

Sara Benson, The Copyright Implications for Teaching with Videos on CopyrightLaws.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"Transcript: Welcome to a COVID 19 edition of copyright chat. I\u2019m Sara Benson and today I don\u2019t have a guest. It\u2019s a little hard to have guests nowadays when we\u2019re all standing six feet apart. But today I\u2019m going to expound on fair use in the age of COVID 19 and I hope you\u2019ll join […]","protected":false},"author":83,"featured_media":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_acf_changed":false,"episode_type":"audio","audio_file":"http:\/\/flash.atlas.illinois.edu\/media\/lib\/CopyrightChatPodcast\/CopyrightChatPodcast_BensonQuarantine.mp3","podmotor_file_id":"","podmotor_episode_id":"","cover_image":"","cover_image_id":"","duration":"","filesize":"21.14M","filesize_raw":"","date_recorded":"2020-04-08 00:21:31","explicit":"","block":""},"tags":[],"series":[11],"class_list":["post-316","podcast","type-podcast","status-publish","hentry","series-copyright-chat"],"acf":[],"episode_featured_image":false,"episode_player_image":"https:\/\/wordpress.library.illinois.edu\/scholarlycommunications\/wp-content\/uploads\/sites\/98\/2024\/02\/chat_orange_1400.png","download_link":"https:\/\/wordpress.library.illinois.edu\/scholarlycommunications\/podcast-download\/316\/fair-use-during-the-covid-19-quarantine.mp3","player_link":"https:\/\/wordpress.library.illinois.edu\/scholarlycommunications\/podcast-player\/316\/fair-use-during-the-covid-19-quarantine.mp3","audio_player":null,"episode_data":{"playerMode":"dark","subscribeUrls":{"apple_podcasts":{"key":"apple_podcasts","url":"","label":"Apple Podcasts","class":"apple_podcasts","icon":"apple-podcasts.png"},"stitcher":{"key":"stitcher","url":"","label":"Stitcher","class":"stitcher","icon":"stitcher.png"},"google_podcasts":{"key":"google_podcasts","url":"","label":"Google Podcasts","class":"google_podcasts","icon":"google-podcasts.png"},"spotify":{"key":"spotify","url":"","label":"Spotify","class":"spotify","icon":"spotify.png"}},"rssFeedUrl":"https:\/\/wordpress.library.illinois.edu\/scholarlycommunications\/feed\/podcast\/copyright-chat","embedCode":"

Fair Use During the COVID-19 Quarantine<\/a><\/blockquote>