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.
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