Benson: 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.  Today, we have Professor Guy Rub with us remotely. He works for the Ohio State University Moritz College of Law. Welcome.

Rub: Thank you. I am happy to be here, Sara, virtually.

Benson: So today, I wanted to talk to you about a recent paper that you wrote, but first, I wanted to ask you a question that I asked all of my participants on my podcast which is, how did you get interested in copyright law?

Rub: Well you see. It happened when I did my PhD at the University of Michigan, and I had various interests there, but at some point I got interested in copyright. It’s a very complex set of rules and standards and legal principles. I like the way that it interacted with so much other stuff, with so many other areas of the law, but also with so many things that has nothing to do with the law or supposedly, nothing to do with the law, like art and movies.  So it just happened, and I like it.

Benson: OK, and I agree with you that it’s fascinating how much art and law intertwine in copyright which is always fun. So I read with interest your most recent paper titled, “Copyright Survives: Rethinking the Copyright Contracts Conflict,” which is forthcoming in the Virginia Law Review. And I often tell folks that contract trumps copyright. Is that too simple a statement?

Rub: It’s likely. It’s almost. When they conflict, you’re mostly right. Wow, that was a difficult statement to make.  Yes. When I can write the contract, and if we enforce it, that contract can override what the arrangement that are said by copyright law. That is correct.

Benson: OK.

Rub: Let me give you an example. We have an arrangement, we have many arrangements like that, in other areas of the law, and the law sets sort of a baseline, and we can agree on something else. You know, I can, between me and my neighbor, you know, the law says what right I have and what right my neighbor has, but if we agree on something else, that something else can sort of change the underlying arrangement.

Benson: Right, and so where is this copyright contacts conflict that you’re addressing in your paper, in what realm does that exist?

Rub: Well, the reason that it exists is because there are many people, and we can talk why and where they’re coming from, who don’t think that contract should always trump copyright. They believe that, you know, we can’t contract about everything, right, there’s some stuff we’ve all agreed that we can write contracts about. The easier example is, you know, slavery. I can’t write the contract that I sell myself even if it’s agreed upon. So it’s possible, at least, that what some people suggest, that some arrangements with in our corporate system should not be subject to contract, cannot, basically, in that when those two are clashing, at least in some area, some people say, you know, copyright should actually triumph, and so, if I write an agreement, that’s the argument, right, if I write an agreement that suggests that I’m waiving my fair use rights, maybe the argument is, well that’s not true. We should not let the contract trump my fair use rights. They’re unwaivable. That’s the fault of the technical term, right. So that’s where the conflict is, the conflict is, if you accept the idea that, you know, it doesn’t work th

Benson:  Today’s episode of Copyright Chat features Lisa Hinchliffe, colleague of mine at the University of Illinois Library, coordinator of Information Literacy Service and Instruction, full professor, and chair of the IFLA Information Literacy Section. Thank you for being here, Lisa.

Hinchliffe: Thank you for having me.

Benson: So you recently co-organized an offsite meeting at IFLA 2017, titled “Models for Copyright Education and Information Literacy Programs.” Can you tell me a little bit about why you organized that program?

Hinchliffe: Sure. It was a really very successful program. I’m really proud of it I co-organized this with my colleagues Janice Pilch, who’s a faculty member at Rutgers library, and Tom Lipinski, who is the Dean of the iSchool at the University of Wisconsin at Milwaukee.

Collectively, we have an interest in making sure that everyone who’s using information understands the way that copyright impacts the work that they do, but then, a special angle of this particular program was to look at the ways that libraries educate users around copyright, through primarily, of course, our information literacy programs. So we are able to look at the question of, you know, how do we make sure through staff training and development that library workers are aware of copyright, fair-use related issues, but then also how are we passing those along to the people that we are responsible for educating, often undergraduate students, but also graduate students, post-docs, faculty, staff–there’s so many people who are seeking that kind of guidance on information literacy­­. They’re seeking that kind of guidance on copyright, and that we are able to serve them through our information literacy programs.

Benson: So when you originally proposed this conference, offsite session of IFLA, was this a natural connection between copyright and information literacy that others saw, or was this something that you had to kind of make apparent to others in terms of the connection that you saw between the two?

Hinchliffe: Sure, actually, we were quite pleased to see that it was not difficult to explain the importance of bringing these two issues together at all. The way IFLA works is a group will make a proposal that they want to hold such an offsite meeting, and as that proposal is reviewed, the review committee will often encourage them to participate and engage other groups in IFLA, and so the copyright and other legal matters committee of IFLA had wanted to do something around copyright education, and as that proposal was reviewed, they were encouraged to talk to the information literacy section. And it was no question at all within the information literacy section that we wanted to engage in this, because we know that libraries and librarians are engaging in the issues of copyright education as part of their information literacy programs, whether it’s the most sort of, if you will, sort of the routine of the importance of siting your sources, up to, of course, our more robust scholarly communications information literacy

Copyright Chat welcomes Professor David Nimmer to the show.  Professor Nimmer is of counsel to Irell & Manella LLP in Los Angeles, California. He also serves as Professor from Practice at UCLA School of Law and Distinguished Scholar at the Berkeley Center for Law and Technology. Nimmer has authored and updated Nimmer on Copyright since 1985.

Benson: 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.

Today, Copyright Chat is pleased to host Professor David Nimmer. David Nimmer is of counsel at Irell and Manella LLP in Los Angeles, California. He also serves as a Professor from Practice at UCLA School of Law and Distinguished Scholar at the Berkeley Center for Law and Technology. Since 1985, Professor Nimmer has authored and updated Nimmer on Copyright, the standard reference treatise in the field.

Today, I have Professor David Nimmer with me on Copyright Chat. He is here remotely. Thank you for joining me today.

Nimmer: It’s a pleasure to be here.

Benson: So Professor Nimmer, as I understand it, you’re working on an article about fair use as a jury issue. Can you talk a little bit about that?

Nimmer: Yes. Classically, fair use is one of the defining features of copyright law and in order to give a definition, we need to have judges tell us what the parameters are of fair use and ultimately, we need the U.S. Supreme Court to tell us, and fair use is the issue that has been most litigated at the Supreme Court level.

In fact, there have been four decisions that have talked about fair use. So those decisions are typically a pronouncement by district judges, and then they get reviewed by circuit court judges who typically reverse what the district court said, at least in the context of cases that have gone up to the U.S. Supreme Court. And then at the U.S. Supreme Court level, they are in turn reversed, so we’ve seen that at least three times, that district court says one way, court of appeals reverses, then the Supreme Court reverses that. So those are a bunch of judges giving us their determination of fair use, and once we have enough definitive pronouncements from precedential courts, we can say what fair use is.

But the irony in it though is that fair use unfolds in a copyright infringement trial, and classically, both sides are entitled to trial by jury, so one would think that this is really an issue that should be decided in the first issue, by the first impression, by jurors rather than by judges so I’m talking about that anomaly in the law.

Benson: That’s an interesting proposition, and are most fair use cases decided by judges because a bench trial is requested or because they are decided on summary judgment?

Nimmer: Well, they can be decided by a judge for one of several reasons. First of all, it could be that it’s a motion for a preliminary injunction. That gives rise to a lot of these decisions, and so that’s an early stage in the proceeding at which there’s only a judge, there’s no jury. Second, even if the case proceeds, it could be a motion for summary jud

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.

Welcome to copyright chat. Today I actually do not have a guest with me. Today I’d like to speak with you a bit about the recent Eleventh Circuit oral arguments in the case of Cambridge University Press versus Patton.

If you’re not familiar with the case it has been ongoing for around eleven years. It started when Georgia State University adopted a policy which according to a professor who testified at trial routinely allowed professors t

Sara: Welcome to the podcast! Today we have Gordon Speagle with us. Hi, Gordon!

Gordon: Hi, Sara! How are you doing today?

Sara: I’m doing great. Today we’re going to myth-bust. Specifically we’re going to bust some copyright myths. Are you ready for that, Gordon?

Gordon: I’m ready to bust away, Sara.

Sara: Great. Well, can you tell our listening public a little bit about yourself?

Gordon: My name is Gordon Speagle. I’m an academic advisor at the College of Engineering at the University of Illinois, and I stay away from revolving doors.

Sara: That’s a good idea. Now, do you know anything about copyright?

Gordon: I know you can run afoul with copyright rules if you’re not paying attention.

Sara: Okay, so you basically know nothing about copyright. This is what we’re trying to communicate. In this game, I tried to recruit someone who did not know too much about copyright in order to see what the general public might think so we can myth bust. How does that sound?

Gordon: Sounds great. You found a wonderful willing and ignorant individual to have on the podcast.

Sara: Perfect! So this game is called two copyright truths and a lie. I’m going to read three statements for you, and you need to decide which is the lie. Pretty simple, right?

Gordon: It is.

Sara: Well, let’s practice on something totally unrelated to copyright. Which one is the lie? The sky is blue. The night sky is rainbow-colored. The grass is green.

Gordon: Hm…cue the jeopardy music.

Sara: This one’s tricky.

Gordon: As much as I’d like it to be true, I’m going to go with the second option is the one that is not true.

Sara: Correct. So now that you know how to play, let’s try some copyright related statements. First, if I scribble on a piece of paper, that’s generally enough to create a copyright. Second, anything that is on the unrestricted World Wide Web is free to use because the owner has waived copyright. Or three, I have the option to put a copyright symbol on my work if I want to.

Gordon: Hm…I would say that number one is going to be false.

Sara: This is why I love you, Gordon, because you’re completely incorrect. But, but this is a common copyright myth. Actually copyright is really easy to obtain. All you need to do is fix something, which means write it down or record it, that is minimally creative. And minimally creative is at a really low bar, so some of your child’s artwork likely works, and I don’t mean scribbling by just creating a few lines, but anything resembling artwork is copyrightable. The thing that most people think is true is that anything on the unrestricted World Wide Web is free to use because the owner has waived copyright, but that’s just not true. And I do want to bust that myth. Even if it doesn’t look like it’s copyright protected, even if it’s easy to access and it’s open to access, it doesn’t mean that they have somehow waived copyright protection. So we’ll get more into the weeds on that one later. Let’s go to another round of “do you know the copyright myth.” So first, I have to put a copyright symbol on my work to have a copyright. Second, everything before 1923 that was published in the United States is in the public domain and free to