SC&P podcasts include Copyright Chat, a podcast dedicated to discussing important copyright matters. Sara Benson converses with experts from across the globe to engage the public with rights issues relevant to their daily lives.
Miami University Copyright Conference Episode
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 and unique episode of Copyright Chat. Today, I am here at the Copyright Conference at Miami University, live, creating an episode of Copyright Chat along with Will Cross. We've been talking about the Scholarly Communication Notebook and my podcast’s involvement in it, in teaching and learning. And our audience has live, live polled, decided that what we're going to talk about today is potential liability under the CASE Act and sovereign immunity, which is a very timely topic. So I'm very excited to talk about this. There's a lot going on at the Copyright Office with the CASE Act and their proposed rules. So I would love to see if a member of our audience has a question they'd like to start us off with, about either sovereign immunity or the CASE Act. Yeah, someone just posted that the October 4th deadline is weighing heavily on them. It's September 29th and we have until October 4th to respond to the call for comment. Will, have you made any comment to the Copyright Office in response to that call?
Will: That's a great question, Sara, and I wonder if it would be useful to give a very quick, like 30-second overview of the topic just so people know what they're thinking about. I see several hands raised as well. So I’ll, I'll say that, that very quickly, yes, I've been involved with several, several groups including the EUIPO that I know you are part of as well, and Sara, you released a really nice ALA-sponsored resource in this area. So yeah, we've been thinking about this issue a lot. We did a webinar last week talking to a bunch of different librarians as well. So I see several hands raised.
Sara: Yeah, I think Alvin, would you like to ask a question?
Alvin: I work at a land-grant, and we should, should, enjoy sovereign immunity. Does that immunity extend to librarians and the scope of their job?
Sara: That's a really good question. And, so, sovereign immunity generally would protect individuals who work there in the scope of their employment, at least protecting them from large damages. So I'll use an example. I think most of us on this call are aware of the Georgia State University case, right, where Georgia State was sued for their E-reserves policy, where they said that a flat percentage could be copied from a textbook for E-reserves use. And of course, we know that there's no flat percentage that equals a fair use. And the court actually said that at one point in the case, which was helpful to us copyright librarians. So, that doesn't mean that they're immune from suit. It does mean that they would be immune from the large damages, because that's what sovereign immunity protects, right, from copyright damages. So what they could obtain, in that instance, is an injunction, telling folks to stop doing whatever they're doing that is potentially violating the law. And that's what the plaintiffs, Oxford University Press was one of them in that case, sought. The word of caution about that case is, it lasted a really long time. So even though in the end there were no damages at stake, the case kind of went on and on, and of course, during that time, you incur attorney's fees and other things. So, and I would add as an aside, and someone posted in the chat also, under the CASE Act, state and federal governments are also immune from liability under the CASE Act, presumably following sovereign immunity. However, and one of the things that is a little unclear is, does that extend to employees? And it really should. But if you read the last US Copyright Office proposed rule, they made some really weird claims about agency law, whi
Our Take on the Copyright Office Sovereign Immunity Roundtables
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
Controlled Digital Lending in the Era of COVID 19
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 and Fair Use
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
Mike Furlough Explains the HathiTrust Emergency Temporary Access Service
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
Fair Use During the COVID-19 Quarantine
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
This show has helped me learn a lot more about the rules of copyright in the US. Very useful for artists, lawyers, and creatives in general!