Sara: Welcome to another episode of Copyright Chat. Today I have a special guest and member of the ALA Policy Core. I, too, am a member of policy core cohort three, and so is my guest today Timothy Vollmer welcome Timothy. Tim: Thanks for having me on. Sara: And so, I’ll call you Tim for […]

You are tuned in to Copyright Chat. 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. Sara: Welcome to a fun and exciting […]

Douglas Shontz from the Office of General Counsel at the University of Illinois and I participated in the Copyright Office's State Sovereign Immunity Study Roundtable Discussions.  You can find the materials for the Discussions at the United States Copyright Office. We submitted a comment and a reply comment to the Study.

 

 

 

 

 

Sara Benson: Welcome to another episode of Copyright Chat. Today I'm joined by Douglas Shontz who’s from our University Counsel at the University of Illinois and we are going to talk about our recent experience with the U.S. Copyright Office Sovereign Immunity Roundtables. Welcome to the show, Douglas.

Douglas Shontz: Thanks for having me, Sara, pleasure to be here.

Sara: So, last Friday we participated in hearings with the Copyright Office. It was a very long day. I sat through all of the hearings. They started at 9 a.m. and went until about 5 p.m. and let's give the listeners a little bit of background about what was going on there. Do you want to give some background Douglas?

Douglas: Sure, happy to. The precipitating event seems to really be the U.S. Supreme Court decision in Allen v. Cooper which was issued in March of this year and that decision found unconstitutional the federal law that had allowed private copyright holders to sue state governments for copyright infringement and it...resulting from that then two U.S. Senators sent a letter to the U.S. Copyright Office basically instructing them to study the extent of copyright infringement activity by state governments in the wake of the Supreme Court's decision in Allen v. Cooper.

Sara: Right and from what I gathered from the decision the Supreme Court did not rule out the subject of getting rid of sovereign immunity for government actors but for copyright infringement in particular but said that the underlying evidence used to pass the law that was at issue in Allen v. Cooper was not strong enough to support getting rid of sovereign immunity. Is that is that your understanding too?

Douglas: That’s a good characterization. Yeah, the Supreme Court’s decision focused in on a test that was actually developed in another decision after this law was passed in 1990 and that decision refers to congruence and proportionality and what it’s basically saying is that if Congress is going to take the fairly extreme step of abrogating part state sovereign immunity under the 11th Amendment of the Constitution, that they need to justify it in some way. They need that the measures that Congress takes to abrogate the state’s sovereign immunity rights needs to be both congruent to the to the acts that are being performed and that the measures that Congress is taking are proportional to the acts that the state governments are taking that are appear to be wrong, unlawful or or somehow damaging. The interesting thing in this Allen v. Cooper case is they spend a lot of time talking about the proportionality component but didn't spend a lot of time on the congruence component and it really is a two part test. So, it will be interesting to see as what is likely to be continued efforts in Congress to kind of revive some version of this law to to provide an avenue for private copyright holders to sue states if they remember that there's two parts to this test. Obviously, the proportionality part is is really the more important one that you know you're not providing this sweeping access to the courts, to the federal courts for private copyright holders to sue the states and that really seem to be the issue in the Allen v. Cooper case was that it is really open the door wide open for private copyright holders to sue state governments for infringement.

Sara: And I think the other thing that I took away from that line of cases was that in order to abrogate sovereign immunity the acts of infringement, the evidence that you need, I guess, needs to be shown to be intentional or reckless and widespread. So, that is w

To read more about Controlled Digital Lending, please see this White Paper by David R. Hansen and Kyle K. Courtney available at https://controlleddigitallending.org/whitepaper

You may also wish to listen to a previous episode of Copyright Chat, where I hosted Mike Furlough as he discussed the HathiTrust Emergency Temporary Access Service https://www.library.illinois.edu/scp/podcast/mike-furlough-explains-the-hathitrust-emergency-temporary-access-service/

 

 

 

 

 

Hello listeners, and welcome to another episode of Copyright Chat. In keeping with the themes of previous episodes during COVID-19, I am doing a solo produced episode, with just myself, Sara Benson, discussing a current, and necessary copyright topic.

So for today's episode, I actually took to Twitter to ask you, the public, what you wanted to hear about the most. And the two most pressing issues that arose were Controlled Digital Lending, and not far behind, E-Reserves in libraries in the time of COVID-19. So today, I am going to address the first issue, which came up with the most votes in my poll on Twitter: Controlled Digital Lending.

Now I did not come up with the term Controlled Digital Lending. In fact, my colleagues Kyle Courtney and David Hansen wrote a white paper all about Controlled Digital Lending, which I'm linking to from this episode. And based on their understanding of it, and their explanations in the white paper and my own understanding of it, I'm going to explain it to you. And of course, I take no credit for their white paper, of course, and any misunderstanding that I tell you in this podcast episode are my own, but I think I have a pretty good grasp on what they're arguing and what libraries are operating under when they are engaging in Controlled Digital Lending in the way that, for instance, the Emergency Access Library from HathiTrust is engaging in it. And so, without further ado, let me dive into Controlled Digital Lending from my own understanding.

So first of all, under the copyright act, we have a right of first sale under section 109 of the act. So that's Volume 17 of United States Code, Section 109. And under the right of first sale, anyone can sell, give away, do whatever they wish, with a book or other item that they purchase in physical format from a publisher or an author. And so when I publish a book, let's say I'm publishing a current book from the American Library Association, when the ALA sells my book to a reader, the reader then owns that particular copy of the book. And so the reader can lend that book out to friends, the reader could sell that book on Amazon, could put it on their front yard in a little free library, they could sell it in a garage sale, etcetera, etcetera. They own that particular copy of the book, and they have extinguished ownership right of the publisher upon the sale of the book. So the publisher can no longer garner any kind of compensation from lending of the book or the sale of the book, right? So when you sell in your garage sale, you don't need to offer any remuneration to the author or the publisher at that point. And so, that is what most library lending is occurring under, section 109 of the copyright act. When we purchase a physical book, we lend it out as many times as we would like, and we don't have to pay any fees for that lending. And that's the same type of thing that an individual can do in their home library, or little free library, for instance, or the public library, for that matter.

Now important aside is that this has to be from a work that is in print or in a physical format, such as a CD or a DVD. And another aside, or important fact, it does not allow you to make a copy of the work. It allows you to sell that particular work. And so, you don't own the copyright, right, you can't do all the things that a copyright owner can do, such as make reproductions, but you have the right to that specific piece of property, that speci

Reading Aloud: Fair Use Enables Translating Classroom Practices to Online Learning by Meredith Jacob et al is licensed under a Creative Commons Attribution 4.0 International License and is available at https://tinyurl.com/read-aloud-online

My book chapter from Copyright Conversations, published by ACRL, is available here: Fear and Fair Use:  Addressing the Affective Domain

 

 

 

 

Sara Benson: Hello and welcome to another episode of Copyright Chat. Today, I wanted to take a moment to discuss with you some questions about reading aloud in the era of COVID-19.

Lately, many folks have tried to engage with their students in an online forum. Why have we begun to do this? Usually, librarians in public libraries, school libraries, and even academic libraries will engage with their students in face-to-face classrooms on very frequent basis reading aloud sometimes in groups, sometimes with the librarian directing but usually without any fear of retribution and exercising their rights under the face-to-face teaching exception of copyright. When teaching in a face-to-face environment the copyright exception is rather clear. The Copyright Act provides that anyone may read aloud in the course of face-to-face teaching in a non-profit educational institution or library as long as they are performing or displaying a copy of a lawful work. So, this does not allow them to make a copy of the work but rather to read aloud, to watch an entire movie, to act out a play, to listen to music, all of those sorts of things that we do in the course of face-to-face teaching.

However, in the era of COVID-19, many folks have had to move their classrooms or their library’s classroom settings online and when doing so they’ve become concerned about licensing issues and the realm of possibility of being sued under the guise of Fair Use. Unfortunately, publishers have tried to clear this up but in a way that just made things more confusing. So, many popular publishers reached out on their websites granting libraries a “exception” to copyright allowing them under their purview of owners of the copyright to perform the works with certain guidelines. The guidelines varied from publisher to publisher. Often, they would include that they had to limit the number of users that they were displaying the work to or credit the publisher when they read the work, et cetera, et cetera. I know the publishers were attempting to do something good; to make an otherwise muddy area more clear for their users, their patrons, the librarians, other members of society who wish to read aloud. The problem is that we didn’t really need the publisher’s permission to do this in the first place. When we exercise Fair Use, we do not need to ask for permission to do so.

The problem is that many folks feel very uncertain when exercising Fair Use. They feel that the risk is too great, that they don’t want to be sued, and that they don’t feel comfortable making a good faith Fair Use determination. Unfortunately, the more that we give in to our fear of exercising Fair Use, the more that we allow publishers to overreach. Again, like I said, we didn’t need the publishers to give us permission to read aloud books. Especially, if we were doing so for educational and transformative purposes.

Let me give you a greater example here. Let’s say I am a school librarian and I’ve been forbidden from meeting with my students face-to-face because of the possibility that COVID-19 would be spread in those interactions. I wish to read from a book, a children’s book online and provide that streaming to my students in my classes. When I read aloud, I often pause for emphasis, I often explain the meaning behind certain phrases. I use it as an educational opportunity to get the students to think about the context in which the story takes place and I use it to explain the meanings of different words and maybe even grammar. So, I’m not just reading the book straight thro

Sara Benson: Welcome to another episode of Copyright Chat. Today, I am very pleased to be speaking remotely with Michael Furlough who is the Executive Director of the HathiTrust Digital Library. Welcome to the show.

Mike Furlough: Hey! Thank you very much for having me. I really appreciate the opportunity to talk with you all today.

Sara: Thanks so much for coming and virtually, at least, for spending some time with me to chat about this. So, I’m pretty familiar with the HathiTrust Digital Library but I know a lot of listeners may not be. Could you explain to the listeners who are unfamiliar with the library, what the HathiTrust Digital Library collects?

Mike: Sure, and I will give you a little bit of a history, too. So, our primary goal and mission is to collect, preserve, and make accessible materials of scholarly and cultural record. Mostly, that takes the form of books that have been digitized from research libraries. Right now, the collection has about 17.4 million digitized volumes. That is like a book on a shelf that has been put on a scanner and that corresponds to just under 9 million titles. So, that includes books, single authored books, but also, serials, journals, things like that. We got started—really the start of HathiTrust emerged from the moment when Google, when it was still a pretty young company, began working with libraries to scan collections at a really large scale. I mean, their plan had been to or was to simply scan everything in these libraries and one of those early partners with Google was the University of Michigan and soon it was followed by other colleagues from the Big Ten, including Illinois, and those libraries started to plan for large scale cooperatively funded infrastructure that would support preservation and support access and really focus on a researcher or student mode of access to the collection. They recognize that they work together they can do much more with their joint collections effectively in a way that they couldn’t in a grant landscape. So, they also started working with other universities and in 2008 the University of California joined on with the Big Ten to form HathiTrust. We now have about 150 members worldwide and we’ve launched a lot of major programs that help us take advantage of the corpus, take advantage of the collection in ways that you just couldn’t for a print collection, as well.

Sara: Wonderful. So, it sounds like the collection is fairly robust at this point especially. What is your role within the library?

Mike: So, I’m the Executive Director. My job is to lead the organization as a whole. And it really is an organization, as I said. So, I do things like on a day-to-day basis I’m working with my team of about 12 people to help monitor our uses, monitor our finance. On a larger scale, I’m looking at our strategy, helping to set and define policy. I am accountable to a Board, a board of governors that includes representatives from the memberships, so, I work with them regularly, monthly, in a—to give updates and talk about what we’re working on and to understand what direction we might—what course corrections, rather, we might want to be making.

So, we have— one thing I would let your listeners know is that we have services that are operated at different institutions. So, I am based at the University of Michigan, but some of our services are operated here, but others are operated at Indiana University, some at the University of Illinois. California Digital Library also operates some services. All of these are like contracted services. So, even though my team is about 12, really were relying on the distributed expertise of the membership and there are dozens of people that work on HathiTrust.

Sara: Wonderful, yeah. I’m very familiar with some of the work that goes on at the University of Illinois in collaboration with the iSchool, as well. Is—can you talk a little bit—I’ve heard a lot of buzz lately around the Emergency Digital Library. Can

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

Check out Professor Roberts' OER titled "Writing for Strategic Communication Industries."

Sara 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. Hello and welcome to another episode of copyright chat. Today I have with me live in studio, Dr. Jasmine Roberts. She's from the Ohio state university. She is a lecturer in communications and an OER champion. She actually did her master's degree here at the University of Illinois. So, welcome Jasmine.

 

Jasmine:  Thank you so much Sara. I'm really excited to be here.

 

Sara:  So for those listening, I just usee the term OER. A lot of folks don't exactly know what that is. Can you tell us a little bit more about it?

Jasmine:  Yeah, absolutely. So OER stands for open educational resources and essentially that means that these resources are free and available for the most part to the general public. That doesn't necessarily mean that they're free to create. I definitely want to say that because there are foundations and institutions that definitely provide the financial backing behind this. But they are free to the user and also they are openly licensed, due to creative comments. So creative commons is a nonprofit organization that helps to openly license one's work. And that's the really cool part about OER. They're not just free digital resources. A lot of times when I tell people about OER, and you know, they oftentimes think if they do know about OER, they oftentimes think, Oh, those are the free digital resources that I can just find online. But it's not just that, it's the permissions piece, right?

So you can customize the content, you can take out content and put it, you know, remix it with another OER if you wanted to, to make that content a little more relevant to your students or to the learner. Um, you can keep it for as long as you want. So unlike, um, some of the inclusive access, um, things that we're seeing from some of the major publishers. Um, I can have access to an OER for a very long time forever. Ideally, there is no paywall that prevents me from having access, you know, longterm. And it's really cool not only for the students, but also for educators again, because of the faculty autonomy. Again, one can make sure that the course materials are more in line in terms of what the instructor truly wants to get out of that classroom experience. So that's basically OER in a nutshell.

Sara:  That's awesome. That was a really thorough explanation. So one of the reasons that I'm interested in OER as a copyright person and copyright librarian is, is the licensing, right? What exactly does that allow people to do? And like, can you talk about the difference between something that is free versus licensed openly, a little bit more?

Jasmine:  Yeah. So, a really good example would be, for example, library resources, right? So to students that is free and I put that in quotes, because they don't have to pay to use a textbook that's on course reserves for instance. But that's not free to the library. That's not free to the university and what have you. And in terms of access and permissions piece, the students still can't, for example, customize the content if they want it to, to make it more relevant to them.  They can't remix it with another OER. I mean, it's still a copyright textbook. They're just able to access it. You know, more than you would if you would have to go out and buy it. Uh, but even then the access is limited if it is on, for example, in course reserves, usually it's, you know, you could have access to it for about, you know, minimum two hours to, you know, full day, depending upon, you know, the timeframe that the instructor puts on that. And so there's a still a little bit of restriction, right when i

Learn more about our guest Melissa Ocepek on her iSchool webpage.

Here is the link to our syllabus for the Copyright for Information Professionals.

Sara:  Hello, welcome to another episode of copyright chat with your host Sara Benson. Today I'm recording live in studio. Well, maybe not live since this is recorded, but we are in the studio at the undergraduate library of university of Illinois because today I have with me Melissa Ocepek an Assistant Professor from the School of Information sciences at the University of Illinois. Welcome to the show. Melissa.

Melissa:  Thank you so much for having me. I'm very excited to talk about copyright today.

Sara:  Well, that is what we're going to talk about. So Melissa and I, if some of you don't know for you listeners at home, we co-teach a class called copyright for information professionals at the school of information sciences and we are teaching it right now.  In fact, we taught today.

Melissa:  We did. We did. It was very fun. We had a fair use game show.

Sara:   So Melissa, my first question for you is you are not a librarian, you are not a copyright person necessarily by training. How did you get into copyright?

Melissa:  Well, I want to note in addition to teaching the class, we also designed it ourselves and put it together and that's sort of I would say is how I got into copyright, which is that I've always had an appreciation for the law. I've always been a bit of a law nerd, a bit of a Supreme court nerd. And so when I started teaching here at the high school at the University of Illinois I was teaching a unit on intellectual property within one of the required courses called libraries, information and society. And through that and through talking to the students, a lot of them got really excited about the content, but there wasn't another space that could tell them to learn more.

A lot of other topics I say, Oh, take this other class where you'll get a deep education in this particular topic. And since it did not exist for copyright, I talked to the administration about why that was and if there was an opportunity to create a course and it seemed that there was, and so it sort of started just as an idea. I then met luckily met Sara and together we sort of figured out what would be the best approach and making, not a law course, not a law school course, but a course about copyright, about making copyright accessible for a librarian information science student audience.

Sara:  Right. So we, we designed that course a few years ago we've taught, this is our fifth iteration is that right?

Melissa:  I think this is the fourth.

Sara:  Fourth, okay. Our fourth iteration, and this is the first time that we've taught a full semester length course.  It's been eight weeks up until now. Give me some perspective on, you know, your thoughts of the course as it has developed over time.

Melissa:  Well, what I think is great about the course is that we started out just with sort of some very basic ideas of what is copyright, what is section 108, how can we think about library librarians, education, fair use, sort of the, the real basic, what you'd want. Someone in an educational context understands copyright. And from there we've really expanded it and I think that's been driven not only from our interest in copyright but also a lot from the student's interest. So for example, for this semester I knew going in that one of our students, at least one of our students wanted to go into music librarian ship was really interested in music and copyright and I, we hadn't taught that previously.

And so by talking to my students in different classes and getting to know a lot of them through the required courses, I've really been able to with you work to expand the course in ways that are really useful. I think that's really one of the best parts about the course. I mean it's called copyright for information professionals and we really try to make it as applicab

 

Allison Nowicki Estell's CC-BY-NC-ND licensed chapter in the ACRL book Copyright Conversations is available here:  Copyright Self-Study: How to Know What You Know, What You Don’t Know, and How to Discover What You Need to Know Next.

Sara:                    Hello and welcome to another episode of Copyright Chat. Today I am visiting with Allison Estell, the associate director for access and organization from Wentworth Institute of Technology. Allison, welcome to the show.

Allison:               Hi Sara. Thank you so much for having me.

Sara:                    So I wanted to have you on the show because I am so interested in some of your research and I noticed that through your title you don't necessarily have a copyright related title or job description. How did you get interested in copyright?

Allison:               Well, that's true. It's not in my title. It hasn't really been in any of my titles, but it kind of creeps into my job descriptions because I have a law degree. Now that said, I did not actually study any intellectual property or copyright while I was in law school. But I think once I've gotten to my first library job, the credential itself was enough for people to say, "Okay, let's send these questions and projects Allison's way."

Allison:               So, and it's really interesting so that was a good thing then when I was tasked with it, I found it to be also interesting. So yeah, I found myself just thrown into a role that I didn't really have a background in or education in specifically, and I just took what I knew from law school and learning how to learn and I dug in and I did have some resources along the way. In my first library job, I was actually a library student as well in a library assistant role. And so I was able to take a copyright course from, actually not, I graduated from Simmons, but I took a course through our wise consortium was from San Jose State and it gave me some of the basics to get me started. But then a lot of the projects and questions that ensued, I had to kind of supplement on my own.

Sara:                    And you talk about supplementing on your own. And I know in the recent book that was edited by myself, Copyright Conversations, you wrote about kind of self learning copyright. And I found that chapter one of the most, I think useful chapters in the book because so many people are in that boat, right? They're just asked what's the answer to this question? And they have no background. So can you talk a little bit about developing that chapter?

Allison:               Oh absolutely. So as I mentioned, I'd been kind of thrown into doing some copyright here and there and I even had found that people in my other world, I'm also a musician and I would play in some orchestras and people would know, oh, this person is a librarian and also she has a law degree. I bet she can help me find legal information. And so in addition to questions I was getting in the course of my job, people outside of work were also asking me to help them with copyright questions, which again, I always phrase everything with this is not legal advice. I'm just providing legal information.

Allison:               But especially because I don't work in the music library and I'm not really up on either sound recording issues or a lot of the other things that are specific to music, I found myself not having a ton of time but wanting to help and really talking people through, okay, I would have to learn about this myself anyway right now. Let's learn it together or let me point you to the right resources where you can learn about this and where and give you some of the critical thinking and kind of mindset skills that you would need to make a decision. Because ultimately the copyright questions that people bring to us as librarians are ultimately going to be the decision is ultimately our patrons decision to make. We're just giving the information for other people to make their own