Moderator: Tom Hemnes, GTC Law Group LLP & Affiliates
Ruth Okediji, University of Minnesota Law School
Schools don’t play a central role in the last Copyright Act; the next shouldn’t take the same piecemeal/dismissive approach. Schools and students are changing, and digital tech is a big part of that. In the current Act, there are disconnected pieces—face to face teaching, TEACH Act (miserable failure), disability provisions, fair use. Often schools don’t have enough resources/knowledge to use all the pieces. Act takes a passive view of schools and static view of education, but schools are adapting and adopting new tech all the time, and we should be worried if they don’t.
The purpose of copyright: promoting learning. Other state preambles mentioned education.
Do we really want to regulate how students learn and how teachers teach in a rights-based approach? Ecosystem of license processes—no standard rates to fall back on. Educational institutions become overly cautious, and underfunded institutions can’t compete. Little incentive for publishers to negotiate with educational institutions. Need for translations; much of student body doesn’t speak English, but translation right is in the way. Teachers’ uncertainty interferes with access and use of digital content.
All this when skills in working with digital content are increasingly important as educational goals.
If fair use is just about transformation, that may not be helpful for schools; Congress does not want to look under the hood of that particular question. It’s not the lack of exceptions that is a problem, but we don’t have exceptions that work or serve our needs. Exceptions thicket: where does face to face teaching apply? where does the TEACH Act apply? Where does fair use apply? Our three tiered approach has no sense of how each kind of exception should interact.
Safe harbor solutions; open licensing solutions; but broader implications in need of solution. Richer schools may overpay for access and use. Underresourced: won’t access/use works. Teaching and learning should be frictionless for ordinary educational use; fair use should only be at the margins; Copyright Office guidelines may have a role to play; need a reform with no discrimination between schools—rich, poor, art, film, karate. Structure of Act could be improved: everything dealing with education, not just educational uses, should be one place. A blanket exception for schools and teachers as schools and teachers is her dream. Students are a different story. But if radio can be exempt, then schools can also be exempt.
Ivy Anderson, California Digital Library
Transformation of library collections in the digital age. Three overarching themes: urgency of digital imperative; need to operate at scale; and how well fair use has served libraries.
Largest libraries hold billions of works; many are still in copyright, and many rare volumes are orphans. Libraries spend $4-5 billion in content purchases/year. Over half of library users buy books by authors they first discovered in a library—the industry’s best advertisers. $50 billion that ARL members have spent on research material since 1923, equivalent amount in staff/operational costs—and they hold less than half of the 2.8 billion items held by libraries. $200 billion in stewardship investment at stake in the digital transition.
Can libraries self-regulate? They can and they do. Preservation planning. Sound recording preservation is just one instance of larger preservation challenge.
Three digital adjustments: preservation, access, and service reconfiguration.
Large scale digitization allows us to preemptively safeguard collections from manmade and natural disasters—Tulane lost 3 million items in the aftermath of Katrina. At UC these aren’t idle concerns; we’re seismically unstable. Concerns about collections are very real, so we embrace mass digitization—nearly four million volumes from our collections.
Supporting use of digital collections is no less an imperative as students and researchers seek more online access and researchers use data analysis. If it isn’t online, it doesn’t exist—not just a catchphrase. If we fail, much of the history of human endeavor will go into the dustbin.
In the US we’ve used fair use to move collections online. Four factors are remarkably trustworthy. Frontera collection at UCLA: largest repository of Mexican and Mexican-American vernacular performances. Rare and fragile recordings, gathered accessbility, allowing wide ranging research in Mexican/Mexican-American culture. But this is exactly the kind of content that we can’t collect today as it’s produced. Never received a takedown, only thanks (small excerpts available streaming online, full in the library). Other California collections: Calisphere—for use K-12 and for the public. Never received a takedown request from a copyright owner, one for privacy concerns.
Also great role of smaller public libraries/cultural heritage organizations in preservation. §108 study group considered whether only large libraries should be eligible, but small ones have unique collections and can stimulate civic activism. Law shouldn’t dictate who gets to do preservation; profession can develop appropriate preservation practices and law shouldn’t dictate those practices.
Archiving the web is increasingly common despite lack of clear exception. One archive has adopted §108 study group recommendations (clear labels, no public access, offer opt-out).
Collectively we hold more than 1 billion books and journals, and many are running out of space as circulation is declining. Work to reduce physical footprint; groups of libraries are sharing storage and consolidating collections. This goes hand in hand with digitization—books are more findable due to full text indexing of digitized copies. Obscurity isn’t in authors’ interests or readers’. HathiTrust is an important part of making this possible.
Rather than placing backward-looking tax on old books with no active commercial market, scarce library resources are better spent on new authors. Many of these copies are even properly thought of as replacement copies, given deaccessioning going on. New restriction on digital uses mimicking access restrictions on physical books would be a far better solution.
In the meantime, a HathiTrust project is helping open up works—Copyright Review Management System. Researches copyright status of books published between 1923 and 1967. 55% are not renewed. A few notable things: beyond that percentage, the project was only possible because of formalities and the existence of a registry; and only possible due to prior digitization, which made a distributed online workflow possible and couldn’t have been done across physical books over 100s of libraries. Involved hundreds of hours and still only touched 3% of the HathiTrust corpus. Metadata is available online. More cooperation with rightsholders there is desirable.
Also, copyright should prevail over contract, so we don’t have to keep fighting over licenses.
David Hansen, University of North Carolina Library
Many institutions and individuals responded to Copyright Office inquiry on orphan works. Report carefully collected the many perspectives. Problem: uncertainty even if there is no one who will actually claim the work; fear of large damages. Productive and beneficial uses forestalled, to no benefit of any author or rightsholder.
Digitization example: Thomas E. Watson collection—politician of late 19th/early 20th century. Typical special collection—books, speech drafts, letters, all thrown into one bucket (library collections may not follow copyright categories because they’re about a subject). Tracking down owners: over 8000 documents in the letter subset. After 80 hours of work, identified 3304 individual names as authors; of those, 2671 were presumably still in copyright. That investigation took 4 ½ months. They ultimately found 4 authors w/dependable contact info (you could have spotted these w/o investigation): William Randolph Hearst and 3 other prominent figures; all but Hearst granted permission, and Hearst didn’t respond—its contact info was “send a letter care of the San Francisco Chronicle.”
They felt comfortable relying on fair use once they’d done this level of investigation. But copyright isn’t always the primary obstacle. Watson wrote some spicier texts even in public; his personal correspondence could be even more exposed. Privacy is a question.
Other libraries are gaining comfort with fair use too. Orphan Works best practices in development to document what libraries and archives should do. Jennifer Urban’s great article on using fair use for orphan works. More comfort with relying on fair use since 2006; the fear of copyright liability has diminished at least for libraries and archives, and best practices initiative further helps them. There remain a category of uses where users aren’t as comfortable with fair use, and some remedy limitations along the lines of the Office’s proposal might be appropriate. But we always wonder whether legislation will make things worse rather than better.
Maureen Whalen, Getty Trust
Museums don’t spend as much as educators but we spend a lot on education. Many museums are free/donation supported.
In the trenches: orphan works exemption would be useful. We don’t believe any type of work should be excluded (e.g., photos or unpublished works). Safe harbor for nonprofits. We will do due diligence and record metadata and make rights info available to the public.
Need improvement in the public display right to allow us to display video art—the current rule allows only display of one image at a time. But video art doesn’t work like that. In exhibitions it’s treated like sculpture but in law it’s treated like film. Exhibit/display should be permitted despite public performance language—only limited to video art, similar to definitions in VARA, limited-edition works (not feature films). Would that harm incentives? No; museums would feel more comfortable collecting video art if they weren’t facing concerns about how they could display it/having to negotiate complicated contracts for each piece.
Q: as a practical matter, aren’t damages limited in orphan works cases? Attys taking cases wouldn’t think that damages would be high. That should be part of risk analysis.
Hansen: that’s a big factor; most library collections don’t face statutory damages as part of the equation because most works are unregistered and also libraries are pretty protected.
Mike Carroll: Push back on schools as institutions and more on educational uses writ large. What about the teacher exception/works for hire? Multibillion dollar system runs on the assumption that teachers can transfer copyright but maybe they can’t. Should the next act clarify?
Okediji: struggles with that; isn’t sure wants to rock that boat. But academic authors do need to think about how much we’re giving away and how we want to walk the talk. Legislative position might lead to unwanted consequences.
Peter Jaszi: Inspiring call to action, but difficulties in achievability. Just at the moment educators recognizes the need, the content community sees the opportunity for an educational market. There is value in interim solutions to the big problems Okediji describes. Code of Best Practices in Fair Use for Media Literacy Education as a small solution—makes differences in daily practice in that area by relaxing inherent conservatism of educational institutions. Another area of conservatism has been embrace of open textbooks as interim solution. What could we do in the near term to encourage this movement?
Okediji: Scale is an issue—if only 5-10 schools are involved, then other schools are nervous about being early adopters.