Podcast: Copyright Chat

Find the “Get Into WIPO” Guide here.

Sara:

Hi, welcome to another episode of Copyright Chat. Today we’re talking all things SCCR. We’ll explain what that means in a second with Stephen Wyber from IFLA. Welcome, Stephen.

Stephen:

Hi, Sara.

Sara:

Thanks for being here. And, um, I wanted to give you a chance to introduce yourself a little bit and what your role is with. So, SCCR is a standing committee on copyright and related rights, of course, at the World Intellectual Property Organization or WIPO. We probably will use some acronyms throughout here because saying SCCR, WIPO, it can be a mouthful, but <laugh>, I’ll let you introduce yourself.

Stephen:

We’ll try and be disciplined. So I come from another acronym, IFLA, um, the International Federation of Library Associations and Institutions. My job is director for Policy and advocacy, but actually WIPO, SCCR, copyright, that’s sort of my home. That’s where I started with IFLA. So I, in my job, I oversee what we try and do at IFLA at the international level to make the case for the sorts of laws, the sorts of policy environment, but libraries really need to succeed.

Sara:

Yeah, and I’ve been attending IFLA, this will be my third meeting, I believe, as head of the delegation for, um, this, I’m sorry, I’ve been attending WIPO. It’s my third and, uh, third meeting coming up in April. And I, I wanted to give you a chance to explain to our readers why we go, why does IFLA think it’s important to attend these meetings at Wipo? Why is copyright so important internationally?

Stephen:

So thank you very much. And just say, obviously for us, we we’re thrilled, that you’re on board and, and, and that you are leading our delegation there. So I guess, I know, I’m really conscious with, with copyright full stop, that it’s one of those issues that is often portrayed as being conflictual. It’s often portrayed as being complex. And where there’s really not a great payoff in terms of, I know it’s high effort, low impact, but in fact, for us, I know copyright, it’s one side of the same coin. It’s funding copyright is the thing that determines probably more than anything else what we can do with the resources, with the materials that we hold in our collections. It’s absolutely determinant of how well we can provide access to information. And in particular, it applies internationally because in a world of the internet where users coming to the library, they don’t really care where the information comes from.

Is it from within your country? Is it from internationally? And all they care is being able to get it. But clearly, if copyright isn’t working, and if copyright isn’t working at the international level, then this makes the ability of libraries to meet users’ expectations really difficult. And so, I suppose coming on to just that, that question of the, the relative levels, I know that when we think about advocacy within if flow, we see it very much as a multi-level thing. Now we are really clear the most important decisions about libraries are taken at the national level, at the state level, and the US at the local level. Crucial decisions about funding, about staffing, about what you’re able to do, the partnerships you can form, uh, and of course, the national level in particular, that’s copyright that applies. But crucially, copyright acts within a system. Many countries don’t have complete freedom in defining their own copyright laws.

They have to fulfill, if they want to work internationally, they have to work within the bounds, within the boundaries created by international law, and in particular, the Berne convention from 1886. I hope I haven’t got that wrong. Um, and also in more recent texts, I, by copyright treaties and others. And these set down crucially both minimum standards, protections that countries should put in place to protect right holders. And these aren’t necessarily the authors. It’s often the people who bought the rights or obliged the right authors to sell to, to hand over their rights. But this provides minimum protections. And through this, it aims to say that, well, if you produce a book, if you write a book in the us, you can be sure that your, your work will get the same protection, for example, in the UK as it would as a British order.

Now, the problem with this though, is that because you have these international, these international standards, they aren’t, however, accompanied by international standards when it comes to the exceptions to copyright those provisions in law that set out what it is that libraries are allowed to do without having to ask permission, without having to pay money for things like preservation, for supporting research, for supporting education. And so, crucially, what we need to do is, firstly, at the international level, it’s making clear that it’s okay, and it’s actually a really good idea to make use of the possibilities that exist, to have exceptions and limitations. Because otherwise, unless there’s support, unless there’s that demonstration that that proof, that reassurance that countries can put in place exceptions to copyright, then they’re not necessarily going to have the time or the effort to do it. We shouldn’t forget that a lot of copyright offices in many countries, it’s two, three people maximum.

They’re really small. They need the guidance, they need the reassurance that an organization like WIPO can provide. In saying that, yes, you should have these exceptions, this is good. This is in line with the law. And crucially, of course, by doing it, you also allow for a measure of harmonization so that when a library wants to work with a colleague, a library in another country, for example, to preserve a shared collection, to support research collaboration to children in a classroom, teachers in a classroom, to work together, to draw materials from other countries, by having these sorts of minimum standards that opens up the possibility to actually work together without the fear, without the concern, without the complexity, without the uncertainty of whether actually simply by working with a colleague in another country, by trying to do with a colleague in another country, what you can already do at home.

You’re not risking breaking the law yourself, and you’re not risking your colleague in the other country, breaking the law. Now, unconscious, this all sounds very broad, very high level, but actually we have an example, the Marrakesh Treaty. And this was brought in ’cause simply it was possible for countries to have exceptions that would allow libraries, would allow people with print disabilities to create accessible format, copies of work that was possible under the law. But far too few countries were actually doing it. And that was leading to a book famine where barely 10% of works in richer countries were accessible for people with print disabilities and only 1% for people in poorer countries. So while it was possible, it took a treaty to make something happen, to give that impetus. And now we’ve seen over 120 countries around the world passing the treaty, ratifying it, signing up to it, allowing this to happen.

And of course, by doing it, they’ve also facilitated sharing of works across borders. So I’m conscious it’s been a long answer and do challenge me on it, Sara, but crucially, the international level matters because it sets a context, it sets a framework in which national decisions about this really vital area of law for libraries, copyright are set. And it also, it’s the only place where we can make clear, where we can underline that it is possible to work across borders for libraries, for archives, for museums, for educators, for researchers to cooperate with colleagues elsewhere without the fear of breaking the law.

Sara:

Yeah, and I think you brought up quite a few good points. And one of the things that I learned early on in my career as a copyright librarian, actually, we had someone visiting from the Public Knowledge Project, and they mentioned that in, in South America, they don’t have interlibrary loan in many of their laws. And so therefore, um, open access publishing was really flourishing because authors really needed to have access to other research. And the only way they could do that was through open access publishing because their libraries could not borrow from each other. And in, in the United States, we take it such for granted that we can engage in, you know, all sorts of collaborative loans and, um, interlibrary loaning and consortium agreements and things like this. Um, but you know, that was based on our copyright laws. And I think a lot people take that they forget that connection and that crucial connection, because without that, without Section 108 of our copyright act, we wouldn’t be able to do what we do.

And we take, we just, we almost take it for granted in the United States. And I think another thing that maybe wasn’t on people’s radar, and it certainly wasn’t as much a forefront on mine, was the, the access for folks with disabilities to print material, right? We take it for granted that, oh yeah, everyone can read this book. Well, if you are visually impaired or you have a physical impediment where you can’t lift up the book or something of that sort, you really can’t read. And so, even if books are available otherwise through your library, if they’re not available in a format in which you can read them, and the key there is the copyright, right? Because you cannot otherwise make the copy of the book to then put it in a screen reader, um, accessible copy. And so again, folks didn’t really get that connection, I think, between copyright and disability rights, that is so clear now that Marrakesh has passed.

And I think to me, that’s one of the best examples of what we can do on the international scene if we come together internationally and every nation and really advocate for our patrons. And it really has been a nice thing to see. This was the 10th anniversary, uh, recently of the Marrakesh, um, treaties passage. And we had a lot of celebrations, but I also heard a lot of touching stories from people who, um, grew up not being able to read. I mean, it just seems, you know, one woman said her mother was reading her, her, her, her books from grad school. I can just imagine my poor mother trying to <laugh> read my law books with me, you know, <laugh>. And it is just, it just sounded so sad to me that someone would have to go to all the, you know, their mother would have to sit there for hours and hours reading with them. And also just as a mom myself, it was so touching, right? Because I know if that were my child, I would do the same thing. But, but you shouldn’t have to. You should not have to. Those barriers are really for many insurmountable, right? Not everybody has their mother who would do that and can do that and can spend the time to do that.

Stephen:

Absolutely. And if there’s ever a piece of law that needed inequalities impact assessment, um, it’s probably the Berne convention. It’s pretty certain that when some of these principles were put into place, there was never any belief. I don’t think anyone ever went out deliberately trying to deny people with disabilities the possibility to quit to, to, to, to access works in accessible formats. I think justice in the same way, they didn’t intend this to be a way of restricting teaching, of preventing cross-border research collaborations. ’cause we do know researchers do give up, librarians do end up having to give up on trying to help researchers work across. This was never intended. But unfortunately, copyright is designed in an extremely maximalist way. It, it, it, it’s crazy that it lasts for life plus 70 years in so many countries, but it’s been designed in a way that just lends itself to market failures.

And so that’s why it’s so important to have exceptions. And I think in particular, again, looking at this international aspect, providing the tools that reassurance to countries that they can have exceptions, I, I think we know and very easy for a British person to, to say mean things about the us. But we know that organizations like the Motion Picture Association have this horrifically negative impact on copyright reforms elsewhere, threatening governments with the whole negative consequences of what happens if they introduce exactly sorts of laws that exist in the US that exist in Europe. And yet when African countries try to do this, they get told it’s the end of the world. They get told everything’s going to go up in flames and so on. And this is clearly not true, but that’s why it’s so important to have this international engagement. So we can also help these governments give them the security that no, actually helping people with print disabilities, helping students, helping researchers, just no, it’s fine. And in the end, actually as, uh, as the world, and we’re trying to implement the SDGs, that those principles about knowledge sharing, that these benefit, we benefit as a world when we support education, when we support research, and when we make sure that the voices of those who purely are about profit maximization and purely about trying to eliminate the slightest risk of piracy or whatever else, that we actually have an argument that we have to work against these.

Sara:

I think, um, one of the issues that really got highlighted for me recently with copyright was during the pandemic and online learning, it just seemed to be a massive challenge, right? For educators to continue what they were doing in the classroom, because it meant copying loads of materials, right, for their students, and then fear of getting sued. So it just was a very big challenge and everyone had to respond to it very quickly because, uh, of the international health crisis. Um, and I wonder if you can highlight a few of the things that are, you think are the most pressing issues coming up. We have a meeting of the SCCR this April, and, um, I know we’re having ongoing conversations about many issues, and I wonder if you can highlight some of the things that maybe we should be paying attention to as librarians, um, that might be going on at this meeting.

Stephen:

Thank you. So I, I think, no, there’s, so the way that these meetings are structured is that there is a, there are two big substantive items on the agenda always. Um, there’s broadcasting, which I will come back to, and there’s a big item on exceptions and limitations for libraries, archives, museums, education and research, and for, for the benefit of people with other disabilities. Now, on the re uh, on the exceptions and limitations agenda, we’ve seen some really positive pro progress. Recently, for many years, there was simply no progress because us, because the European Union rich countries, which have pretty good frameworks for exceptions and limitations, which do pretty well by their researchers, by their educators, by their anyone in their, by their citizens in general. But these countries were holding bad. They didn’t want lip to actually do anything. And this was partly because, um, they didn’t, I dunno, they were scared or they were worried about having to change their own laws, which clearly getting things through Congress, getting things through parliament isn’t particularly easy.

But I think sadly, a lot of it was built on this idea that somehow developing countries couldn’t be trusted to implement exceptions and limitations. And, uh, or they’ve just been told that, well, if you put in place exceptions, limitations developing countries will just steal all your stuff. And these are really horrible, horrible arguments. Incredibly patronized, incredibly colonial to suggest that simply a developing country can’t be trusted in this way, this way. And of course, we know that a lot of the arguments came from the case made by right holders who were arguing that we don’t, I know if you open things up, I know create a treaty and it’s a thin end of the wedge. And exceptions and limitations are the same thing as piracy. I don’t know this, this, this sort of complete rubbish. Now, fortunately, we’ve got a little bit better on this.

There’s an acceptance that WIPO does have a role, at least in talking about these issues and thinking about maybe forms of guidance or toolkits or things like that. And I think that that’s a positive thing. I think hopefully we’ve got outta the, the, the long period, sadly, after the Marrakesh Treaty where food at the US and the EU felt a bit burnt, like they felt like they’d been a little bit cornered on Marrakesh and were really resistant to change. Hopefully we’re moving outta that and get into a more constructive stage. Now, the areas that there’s particular focus on at the moment, a particularly interesting one for libraries is around preservation. And this matters, and I think it’s a particularly pressing thing because preservation and climate change are issues that really go hand in hand. We know with climate change, we’re seeing more frequent extreme weather events, more floods, more fires, more storms, more extreme rainfall, rainfall, et cetera.

And this of course, we see every year then collections that are lost, collections that are flooded. And what’s really sad, and the example of the Jagger library at the University of Cape Town was a good example of this. There were so many materials in there which got burnt, but which they could, it wasn’t possible. It wasn’t, it wasn’t made simple to preserve them, to take digital copies because South Africa still hadn’t got around to updating its copyright law. Now, this preservation, we need it, it’s part of adaptation to climate change. We’re not going to be able to save everything, but at least if we can save the content, we avoid, we, we at least have one step to prevent people from becoming alienated from their past, from becoming alienated, from their heritage, from losing those key cultural rights, by preserving things. Another good example, the National Library of Tuvalu.

Now this is a matter of feet from sea level. They know very well there’s an existential threat to their country in the coming years if climate change continues. Now, the only way through here is by actually digitizing the collection, by making sure that the people of Tuvalu can continue to access this. This requires preservation, this requires copying. It’s a copyright issue. And this most likely requires working between countries, forming networks in order to make sure that even if we can’t stop, we can’t stop the ese effects of climate change. At least we can stop this really deep scar being held, caused by the loss of this heritage. And so, and that’s really one of the key issues for us at the moment on the SCCR agenda. How can we advance this work? How can we build this, what should be absolutely consensual issue?

That at the international level, there’s an agreement that in every country preservation, in whatever form is necessary across borders, through collaboration is possible. And that there, and that on this basis, using these preserved copies, libraries can continue to fulfill their mission from always of providing access to heritage, of allowing people to fulfill their cultural rights, support research, support education. So that’s obviously a, a really key one for us right now. In addition to that, there’s some really interesting work going on around research. What can we do, especially digital research, in order to enable newer forms of research, text and data mining, for example, how can we make sure that research can take place across borders, again, in line with sustainable development goals? And we know that cross-border research tends to be more effective. It tends to have a greater impact. There’s work going on around cross-border issues in particular.

And in fact, there’s going to be, uh, an online workshop next month looking at how you can address these and what are the challenges around copyright here. Um, and then finally, there’s also work around education. And I think once again, drawing on some of those really positive examples of countries like Singapore, which allow cross-border access to materials through this, the hope is to produce at least as a first stage objectives and principles. So some key ideas, some key reference points that can be used by governments in order to plan those reforms, to make it just a little bit easier to put in place laws that matter. So that, that’s broadly the exceptions and limitations side. I said there’s also work on a broadcasting treaty. There’s been work on a broadcasting treaty for well over 30 years right now. Um, and this is a, a sad example.

I I, a sad example, I fear of, um, a discussion that maybe was relevant so long ago that now has sort of lost its relevance and people are very much looking for a way to try and get rid of it or guests over the line. So originally it was very much focused, it was claimed on trying to deal with piracy of broadcast signals. The problem is now so much access to programming is through the internet. There’s relatively little taking place on broadcasting. Uh, and, and, and so there’s a lot of discussion going on about, well, what’s actually the scope of it, what’s included or not? And I think there’s also, um, while I arguably there, there, there, there, there is a legitimate reason for trying to do something about privacy, whether it’s a copyright issue or not, or whether it can be dealt with in other ways is another question.

But I think also a key thing for us is making sure that whatever rules are implemented, whatever rights are created, whatever provisions are created, they don’t come at the cost of the ability of libraries, archive museums to work with audio visual content. And so in particular, just because something has been broadcast, if a library and archive museum takes that recording, the broadcaster should not continue to have rights in this. Maybe the producer, the writer, the performers, maybe that, um, exceptions limitations should apply. But we definitely don’t want a situation where whenever a library with audio visual collections wants to use them for any purpose, they also need to talk with the broadcaster first. So that, that, that’s sort of the, that high level issues. I think maybe we’ll dig into a little bit. There’s a, a report planned on, on public lending right. Coming up. Um, and there’s also some interesting work looking into some of the copyright implications around generative AI, which I guess I know plenty of people and I know in the US right now, and it’s been similar in the EU, it’s the same in Canada, it’s the same in lots of countries. That’s quite a hot topic right now.

Sara:

Yeah. And I think, um, a lot of folks probably don’t know what public lending rights are. Well, if they’re from the United States, they probably don’t. I, it was new to me when I started going to IFLA meetings because people talked about public lending rights and in the United States we don’t have them. Um, so my understanding is that it’s when an author has produced a book and it maybe a libraries lending that book, then some of that money they have to do, donate some money or give some money to a fund to compensate the author for the lending of the book. And I think that, um, this study will be interesting because, you know, libraries of course, um, many don’t necessarily think that public lending rights are a very positive thing for library lending. And the United States, we don’t worry about this ’cause we don’t have them. Um, but I know others in Canada, for instance, they do have, uh, public lending rights. And so, um, it’ll be interesting to see what the report says, whether it’s neutral, positive or negative relating to these public lending rights.

Stephen:

I think that that, that describes it well, and I think it, it, it’s quite a vexed question because in in, in the end, the whole concept of public lending rights is, is based on a very questionable assumption. And the, the, the assumption is that somehow libraries by lending works have a negative effect on sales. Now, firstly, libraries are not making money by lending works. So it’s not like libraries are making money off the back of authors. And I think as we know perfectly well that library lending is a driver of sales, it’s a driver of, of learning. So why this should give rise to some sort of compensation is, it’s a range argument. Now, obviously, it’s understood that authors a lot of the time are not particularly well paid, that far too many authors who are obliged to do other jobs at the same time that the, the share of authors who are actually able to make a living on what they’re doing is, is tiny.

Now, whether the solution to that is money that comes either from library budgets or is additional to library budgets and provided by governments, or whether there actually are far more effective ways of supporting new voices, of interesting voices of diverse voices. That’s, I dunno, I think that’s where we have questions. And I think in particular, and I think that’s one of the problems that we’ve certainly had with this, this, this concept with the study in the first place, is it’s very much driven by a focus on developing countries and this idea that somehow it’s in developing countries that we need to develop public lending, right? And sadly, these are countries where so often libraries don’t even have an acquisitions budget. They’re entirely dependent, they’re huge, they’re hugely dependent on donations on books that have been given. And so why it would make sense to have a public lending, right?

That really comes at the risk of taking away this budget when actually a simply, I know a democratically created a properly accountable cultural policy could be more effective. Yeah. It, it, it, it, it doesn’t really make sense. We know of one country that has the laws in place for a public lending, right, Malawi, but they haven’t done anything about it. And so, to be honest, and I think this is one of the challenges we have with WIPO, and it’s one of the reasons why I think it’s so important that libraries are there in general is ’cause otherwise, like within avenue, like with any agency, the risk is that all you hear is the voices of rights holders. All you hear is the voices of people who want to invent you rights in order to justify their existence in order to be able to collect more money from people.

And the risk is that I know, unless there’s someone there speaking up for the users talking about, well, actually the job of intellectual property, it’s not to make money for people. The job of intellectual property is like any public policy to make for fair and more sustainable societies. We need people there to make that point, send that message. And of course, libraries, archives, museums are good at that. But I think this work on public lending rights, to be honest, it feels very much like it’s an opportunity just to create new rights to be administered. Um, it’s outta place, it’s extremely, so we want to see what comes out of it, but I think certainly we, we, we, we will be resisting any idea that public lending rights should be any sort of priority for countries which fundamentally need to actually invest in their libraries in the first place.

Sara:

Yeah. I also think it’s interesting because the, when I think about library lending, at least public library lending, many people who really are heavy users of the public library are people who can’t otherwise afford to purchase books. And so then you’re almost saying, well, the poorest of our society are the problem <laugh>. It’s like they’re actually maybe not even the same people who would be buying the books, right? So, I mean, I almost think it, it, there, there’s a service being provided by libraries, but also to everyone, but also to sometimes the most needy, needy people. And, and then we’re saying, well, those people should be, they’re, they’re somehow we’re not capitalizing on their purchase of the book to the author. It, it doesn’t add up to me <laugh>. Um, so I, I’m, again, we don’t have it in the United States, so to me it’s always been a little bit of a foreign concept.

Um, but I will be, yes, I agree that I will be interested to see what the report says and how we can respond as libraries to say that, um, you know, libraries should be lending without further costs because it’s already quite expensive to lend books and to preserve books and to run a library. Uh, it’s not, it’s not, it’s not free by any means. And, um, to add additional costs if that, if that ha comes out of a library budget, I think that’s a very big problem. I know in some countries, maybe in Canada, it doesn’t come from the library budget, it comes from a separate fund. So they kind of say at least that’s a good thing that it doesn’t come from the library budget, but it still doesn’t mean that it’s justified in the end that there, that there’s any costs at all.

Stephen:

Exactly. And, and I think it’s the argument that we’ve made throughout on this is that the goal we are looking at here is to support a, a, a rich and diverse, um, inflow. Great new ideas, great new books on, on, on, on, on onto the market to enrichen the cultural space. And I think if you’re going to do that, it, it’s not entirely honest to go at that looking at just one particular tool. If we’re going to look at this, look, let’s look at it holistically. Let’s look at all of the tools that we have in order to support this, to make sure that we both have a strong reading public and that we have this great content coming into the market. And let’s look critically at, well, which of the tools that are most effective at achieving this, what’s the best way that we have for actually support supporting this inflow of, of, of diverse ideas? And of this is public lending, right? Really, does it really belong in the toolkit, especially given how problematic it is for exactly the reasons that you say with this idea that somehow it’s compensating and given the huge risk of it coming directly or indirectly from library budgets?

Sara:

Yeah, and I, I think that this is a really good point, um, that we need more people to engage with us. So we, the libraries, I, I think about the American Library Association, how many members we have and, and we don’t often get mobilized as a community. Um, I think right now is a key moment in our history in the United States, at least with book banning and how really librarians have been pulling together to respond. And when we do that as a community, we are so very powerful, but it’s very hard to mobilize all of us, right? Because we’re very different. We have public libraries, we have school libraries, we have academic libraries, we have private libraries. We, I mean, librarians aren’t, aren’t all the same. And I think that’s one of our strengths. And of course we have archives as well and we have museums as well.

Um, but I think, I think it would be really helpful and we’d really like to see more voices joining us, joining IFLA, um, on the international stage as well. Because, you know, as Steven was pointing out, we have, we have a small group of us, the, we call ourselves the Lambs Library archives and museums. And we are very powerful when we come together. But the more voices we can bring, the better. Um, and so I would really encourage people to start following what’s going on a little bit more, um, and to kind of add your voice to the mix at, um, the World Intellectual Property Organization in any way that Stephen and I can help you do that. We are very happy to do that. Um, I’ll let Stephen jump in.

Stephen:

Thank you so much for, for, for bringing me onto this because I think this is, I think this is absolutely a crucial point. And, and this is for, for a number of reasons. Now, a first one is, um, I know organizations like a LA, organizations like ifla, organizations like Indian Library Association, the Indonesian Library Association, where wherever you want, have this incredible legitimacy because whereas a major publishing company or a collecting society or whoever else is based in a big steel and glass building in the center, the, the richest city in the country of the capital, we are in every community. And, and we are the ones who do our work through our members. We see what happens when copyright stands in the way. We have legitimate stories. And I’d certainly encourage every time that someone is frustrated by copyright, when you’re not allowed to do something ’cause of copyright, and in particular when you’re not allowed, or when you feel blocked or prevented from working with colleagues across borders ’cause of copyright, don’t see this as a defeat.

See, this is a war story. This is something that can be useful, that can be powerful, that can demonstrate why it matters. And this is particularly important actually in in developed countries, which countries, I’d say and think in particular, those countries that tended to block reform. ’cause they find it very easy to say, well, everything’s fine with us. We don’t need to change. So we have no interest in doing this. We don’t trust the developing countries. If we can show, if we can find examples of how our students, our researchers, our users are being blocked from what they need to do by copyright, then that’s actually a case that brings something to the table. And we have that sort of crucial legitimacy of being everywhere, of actually being in every community, being able to represent that experience. Um, a second reason why this matters is because WIPO is a member state led organization.

And, and so I, I think I know when we talk about everyone mobilizing, that really does mean everyone in every country. Ideally, it’s so much more powerful when it is the National Library Association that reaches out your copyright office, your foreign ministry to your delegation at the World Intellectual Property Organization, because you can actually talk from real experience. If it’s someone like Sarah, like me, we come from, we, we come from big, rich white countries in the global north. And, and, and no, in the end, in a place like that, we risk just being lobbyists. What matters is when people hear from globe, hear from their own national associations, when they hear from people who actually they speak their language, who can talk about the experience on the ground, that can be really, really powerful. Now, in terms of how you engage, obviously we’re more than happy.

We’re very happy for people to come to Geneva, but it’s also conscious that takes effort. It takes time. It’s not the cheapest place in the world, but actually you can have almost as much effect by simply going to see people, writing emails, writing letters, sharing your experience. Now we’ve just updated our, our “Get Into WIPO Guide,” which is our, our little guide to what WIPO is, what’s being talked about, what you can do there. And that gives some ideas on where you can look for people to contact, how you can get in touch, what you can share with them. We really encourage people to go out and do that. So if you need help, if you need guidance, please do get in touch with us. We can give you key messages, we can give you template letters that you can translate, that you can adapt, that you can send on.

We can give you talking points for meetings, all in the idea with the idea that hopefully then people come to WIPO and they’ll understand. When Sara, when I, when someone else goes up to talk to them, they say, well, we’ve heard from our libraries in our country, we understand your issues. We understand why WIPO can make a difference here. What can we do to help? And so there’s really that importance of let’s make the most of the legitimacy that we have. Let’s demonstrate the power, the reach, the legitimacy that we have. But let’s also use that in order to make sure that everyone who comes to WIPO has heard about libraries, understands what they need to do to support our work in turn, support, education, research, and cultural rights.

Sara:

So I would just say to our listeners, you know, take this opportunity to go and look at that toolkit that, um, Steven’s talking about. I will link it from this podcast on the podcast page, take a look at it, see if you can’t identify the folks from your member state who attend the meetings and write them a note, write them a note about your experience. Um, and especially if you’ve had challenges, because I think most of us in librarianship, if we’ve done anything across borders, we’ve, we’ve come into some problems, right? We’ve, we’ve co encountered some sort of copyright barrier. Um, and so I think most of us do have these kinds of war stories to share, and they’re much more impactful if they’re coming from librarians who are on the ground who are really facing these issues. In fact, in the middle of March, there’s going to be a, an a panel, uh, put on by the WIPO organizers about cross border issues in research and education.

So if you wanna highlight issues like that from your librarianship, that would be a perfect way to segue into it. Or if you wanna talk about preservation issues across borders, that’s another great issue to highlight. Um, and and I, I would challenge you to do that because we have a meeting coming up in April, and really the more voices the merrier because we really then have more, um, stories and background. And that’s what really impacts, right? If you think about telling someone, we’d like you to do this, well, they say, why? And if you tell them, here’s why I have this patron, I have this issue. And then they really start to understand the real issues, right? They understand it on the ground level. And so I, it would be really useful and helpful to IFLA if you would, um, take your own stories and communicate them with your country.

Um, and then we can, you know, hope, hopefully they would say to me, oh, I’ve heard from members of IFLA in my country, you know, and that would, that would make me so happy. There would be nothing better than to meet with someone at WIPO and have them say, oh, well my member wrote me this email or something like that, um, or even went to visit me in the Capitol. Um, all of those things are very, you, you might think it wouldn’t be an impactful, but it really, really is. It they will, they will remember because so few, so few members reach out to them, so few of their country, um, citizens will reach out and talk about these issues. And so they will remember if we start doing this. And I think it’s going to make a big, a big difference in the work that we do internationally.

Stephen:

Absolutely. And I think that the Marrakesh Treaty demonstrates absolutely what is possible and, and, uh, I think it is also just, I think we, I know we are conscious that I know the status quo is really not good enough. Business as usual really isn’t good enough. So we need to build up that momentum for change. And I think exactly as, as, as Sarah has said, showing what’s not going, showing how business as usual is not acceptable, showing how the situation we have today is just not good enough and how that’s actually leading to real human problems that can make a big difference.

Sara:

Well, thank you so much, Stephen, for joining me today. It was really fun talking through some of these issues with you. Um, I get very passionate about international issues facing libraries. I hope the listeners do too. And I hope this really prompts you to look at the guide, take some action, um, contact us, and especially if you’d like to come to Geneva, where we always would welcome more voices, um, on behalf of libraries, archives, and museums. And we’re happy to, to bring you into the fold. And, and usually what we do is we focus on, um, you know, meeting with your, your member, um, representatives. So, you know, for me, I’m from the United States. I meet with those representatives, but I also represent IFLA. So it’s kind of, that’s an international organization. So really that’s everyone, everyone, <laugh>. So I’m happy to join you and talk to your representative from your country and try to have some impact, um, with them. And, um, really, um, we just thank you for listening today. Thank you for supporting IFLA and, um, we hope that, that you learn something and that you, um, get as excited about international issues as we are. Thanks again, Stephen.

Stephen:

Thank you so much for your time, and I’m looking forward to seeing people in Geneva and online.

 

Speaker 1 (00:05):

Hello and welcome to another edition of Copyright Chat. It’s been a while, things have gotten hectic. Technology is changing, and it seems like artificial intelligence is everywhere. Not only is it everywhere, it seems like everyone’s talking about it. They’re talking about how to use it in their classrooms. They’re talking about how to use it as students. They’re talking about how to use it for research. They’re talking about how to use it for corporate development. It seems like everyone’s talking about artificial intelligence. So today I want to break down a few things about artificial intelligence, at least from a copyright perspective. And you know who else is talking about copyright and artificial intelligence? The United States Copyright Office, they too are talking about copyright and artificial intelligence because there are some of the first who have to deal with it in terms of whether the work that was created using artificial intelligence can be registered or not.

(01:22):

And so I wanted to address some of the copyright considerations, but I also want to note that this is an evolving topic. So what I tell you today may be irrelevant pretty soon, maybe even tomorrow. I doubt it. I doubt that all of a sudden tomorrow we’re going to have a slew of court cases, legislation and copyright office administrative regulations governing ai. But I will say that it is a very, very developing topic and there are no real clear answers on many of the questions, at least for now. But I can at least summarize what I know at this point in time, which hopefully is helpful to you and where I’m looking for different pieces of information about the developing world of copyright and ai. So to begin with, how does generative AI get started? I mean, obviously someone writes a script and then the artificial intelligence can read a bunch of data.

(02:38):

Usually it could be pictures, it could be text, but the key here is that the artificial intelligence has to learn from looking at a bunch of other work. And the question is, is that legal? And the answer is as in many cases, it depends. One of the things that you can think of here is the HTI Trust Digital Library case in the second Circuit. In that case, the HTI Trust was digitizing entire copies of books and using it for text and data mining and not showing all parts of the book. Right? When a researcher wanted to see if a book was relevant to their research, they might put in a search term such as anaphylactic shock, and then see where in the book that term appeared. Let’s say it didn’t appear at all. They would know that this book likely is not relevant to their research.

(03:48):

Or let’s say it appeared on 30 different pages in the book and the term appeared a hundred different unique times that might tell them that this book is highly relevant to their research. And so in that case, the court said that the HTI trust’s use of this type of corpus was a quintessentially transformative use. Why? Because they weren’t producing books for the sake of reading or what we call consumptive use. They were producing these books for the purpose of using them in a new way for research and text and data mining and building on that logic. Many lawyers think, and I agree, although I will give you the disclaimer that you shouldn’t take any of this as legal advice. I would agree that most training of AI on corpus, such as books or pictures, that might be considered a fair use, right? Because they’re not simply trying to read or consume that data.

(05:04):

The entire purpose of generative AI is to try to come up with something new, something different, right? You tell the ai, create a song in the genre of this or create a play about a monkey written in the form of Shakespeare or something of that sort. And so it’s not meant to merely duplicate or just read or just simply copy the work it is trying to learn to create, to do something new that might be all fair and well and good. In the case of HathiTrust, where we were scanning, we, I say because libraries, academic and research libraries we’re scanning physical books. What’s the difference between what the HathiTrust was doing and generative AI today? Well, there are a few differences. One of the key differences is that they were using physical books. And so physical books carry no licensing, right? There’s nothing restricting me from copying besides copyright law. There’s nothing, no contract restricting me from making that copy. The other difference, obviously, is they weren’t trying to train using the corpus of the book. So that’s a leap you have to make from text and data mining uses, which the court in the second circuit at least thinks are quintessentially transformative to generative ai. And whether a court would agree that generative AI also is quintessentially or transformative at all.

(06:46):

The leap that I make about whether it’s transformative, I think most experts agree that they think that the use of generative AI to train on that type of corpus is likely a fair use. The part that we mostly get hung up on is this licensing aspect or contractual restriction aspect. And that’s because you can get rid of all sorts of rights that you have such even fair use with a contract. And we get into contracts all over the place when we’re trying to access books on the web, when we’re trying to access images on the internet, when we’re trying to access library databases. There are a lot of folks who want to do AI work using library databases. However, libraries of course, license their databases on behalf of their patrons, and the patrons too are bound by the terms of that license. If it does not allow large scale scraping, then it’s not going to allow generative AI because you would need to scrape the data.

(08:01):

And so I think there’s a huge caveat here, which is the whole licensing aspect, and we really haven’t seen what the courts are going to say about that necessarily, and how that’s going to play out in different ways. I mean, in many cases courts seem to think that, so-called browse wrap contracts, terms of service, for instance, that are buried on a website are not as enforceable as say, click through licenses where you have to actually click your agreement or ascent. But in any event, these lawsuits are likely to happen. And in fact, one is pending already about chat. GPT fiction authors have claimed that chat, GPT trained using their corpus through illegally uploaded books to pirate websites. And so they’re saying, Hey, this was not a legal thing in the first place. These were illegal copies and violated our copyrights, and then the AI was trained using it.

(09:07):

So we will see there’s a variety of different lawsuits that could come out on the training side, even though, as I said, many folks think that side of the coin may be a fair use in many instances. So when creating generative ai, you have to get a corpus that may or may not be create many copyright issues for you depending on the licensing issues and whether the corpus was illegally uploaded to the internet in the first instance. Those things can create a lot of problems. And then after you’ve created the generative AI process, after your code has read that all of this data and trained, then you have the output, then you have someone, let’s say myself, I try to engage with chat GPT, and I put in a prompt and I want to own copyright own whatever it spits out. So I say, write me a play about a gorilla in the genre of Shakespeare, and that’s all I say.

(10:21):

And then it spits out 20 pages, and I want to own that. And that is where we have some guidance, at least from the US Copyright Office, because they have had to deal with some attempted registrations. And most of these have dealt with art through Midjourney and other AI generators. And what happens is we know, and this is not a novel concept, but we know that copyright law, at least in the United States and pretty much everywhere, requires a human author, right? The human author has to own the copyright. We know that there’s the famous Monkey selfie case where no, the court would not allow a monkey to own their own selfie because they’re an animal, they’re not a human. Can’t own it. Well, the same goes for machine generated or computer generated art.

(11:22):

If the applicant or the registrant when they turn in their registration to the copyright office says, I asked AI to generate this picture, and here it is, then that’s likely to get rejected because there’s not enough originality in the terms of creativity from the human there to create a copyright. That is where we get into, well, is it simply because you used a machine to create it? Is it simply because it’s human creativity but aided by a machine? Well, that answer we’ve had for a very long time. Supreme Court, the Supreme Court pointed that out in the case of Avni when we had a photographer taking a picture of Oscar Wilde, and the debate was, well, can the human own this copyright? Because they were aided by a camera. And of course we know we can own copyrights and photos. But back in the 1880s when the case was decided, that was a question.

(12:41):

And the court said, of course there’s human creativity in the pose. They put Oscar Wilde into in the lighting, the timing of day when they took the photo, all of these different things. And that’s the key question with AI today. How much human creativity went into the arrangement of this AI generated thing? So potentially you could have a thin layer of copyright in some sort of creative arrangement if your prompt is sufficiently creative, or if you have a derivative work from an AI creative work, and you’ve put enough creative choices into it. So there are ways, of course, using AI to still own a copyright. But if you simply say to the copyright office, I put in this really simple prompt and this is what it spat out at me, that’s not going to cut it. And then there’s one more aspect though that has to be considered here, and that is what results that picture or that text needs to be different, right? Because we know that the AI trained on corpus, and if the image, let’s say, that it spits out is too substantially similar to the input to the image that was put in, then we’re still going to face an issue. We’re going to have a problem with a potential copyright infringement claim.

(14:29):

I’m just thinking in my head of somebody who, let’s say I have, I’m a very big fan of Mark Rothko, and I say to the AI generator, show me an exact replica of Mark Rothko’s painting X. Maybe Mark Rothko isn’t the best example as most of his paintings were just blocks of color. But you can get the point. If you pick a modern contemporary artist who does own copyright in their work, their work was inputted into the generator, and you tell it to give you an exact replica, and it does well, that’s problematic, and that’s pretty obvious to see. But you may not even ask for an exact replica. If the AI generator is not doing a good job in creating new things, in learning how to be unique and change different language models, then you just may end up with some copyright infringement on your hands.

(15:37):

So there are three different things to think about with AI and copyright, right? There’s the training is the data, is the corpus, is the stuff you’re training your AI on, is that legal? And the answer there is, it depends, right? Are there contracts at play? If not, maybe it’s a fair use. And then you have the second question, can you own the output or is the output just not copyrightable because it’s computer generated? And in addition to that, is there any copyright infringement? Because whatever is spit out, is it too similar to the corpus it was trained on? So these are the kinds of things that I expect I fully expect to see crop up in court cases. I think we’re going to have a lot more of those about all of these different issues. We’re going to have more guidance, of course, from the copyright office as more and more folks try to register their work, and we’re going to have lawsuits for illegal training of AI data and illegal infringement on the backend.

(16:57):

So all of these things are things to watch for. One of the places that I keep an eye on in terms of trying to stay up to date on these AI issues is the Copyright Office has a dedicated site about artificial intelligence. So I watched that space. They had a recent call for comments from the public, and I expect that they will be putting out a discussion document quite soon. Another place that’s really great to follow is the Georgetown University has an AI database of all of the cases about AI in the law today, and you can filter it by copyright infringement related cases or fair use related cases. And it’s a really nice way to just try to keep up on what types

Speaker 2 (17:48):

Of are currently pending. So those are the sources I would recommend to you, my listeners. That’s what I’m trying to keep up on. I hope that this brief introduction was helpful and food for thought and has you thinking about the issues as they develop. Until next time, I hope you stay well. Thanks for listening.

Read the Internet Archive Injunction Order here.

Sara: Welcome to another episode of copyright chat. It’s been a minute I’ve been on Sabbatical. I’ve been traveling to Geneva, working at the World intellectual property organization on some research. So, welcome back, we have a very exciting episode talking about the Internet Archive litigation with Jonathan Band from policy bandwidth. He is a renowned lawyer in intellectual property and policy out of Washington, DC. His views are his own. Nothing in this podcast, should be taken as legal advice, of course. But welcome, Jonathan.

 

Jonathan: Thanks for having me.

 

Sara: I would think, since this litigation has been pending for quite some time that most of our listeners are familiar with it. But we can go through a little bit of background. So the Internet Archive was sued by authors and publishers, because, largely as I understand it, because of the emergency lending during Covid. Is that your understanding, too? I mean, that’s what prompted the suit

 

 

Jonathan: The suit initially was filed right after the Internet Archive announced the National Emergency Library early in the pandemic. But very quickly, as you know, with the pleadings and sort of look looking at where the decision ended up. The decision hardly focused on the National Emergency Library at all that just got a paragraph in the decision. It was really focusing on the controlled digital lending under the Internet archives open library. So it could be that that the National Emergency Library is what really got the publishers’ attention and that’s what prompted the filing of the lawsuit. But the case ended up being about the open library more generally. And what’s interesting about that is that that was not new. I mean, the Internet Archive has been doing, lending through the open library for a while. So you know I’m sure at some point in the future we’ll sort of look back and try to figure out. You know why. what prompted it, and why and why did they not sue about the open library earlier? But that’s, you know, not completely relevant to today’s discussion.

 

Sara: Yeah, I also think that’s interesting, because my own take on it, maybe not accurate, but my own take on it was that the authors got mad because they were. They kind of. They kind of went a little excessive, I guess, in the emergency library, saying, Well, we’re gonna lend more than maybe one to one. Well, and they claimed usually to be lending older books. Maybe 5 years past publication date, but they threw a few newer books in there by mistake. I understand it was kind of not intentional on behalf of Internet Archive, and that was what kind of perked the ears up of the authors and the publishers. But yes, I mean, the case is broader than just the emergency. Library, which I think is important, because some libraries such as my own, were engaging in controlled digital lending through the Hathi Trust during covid, because we couldn’t let people in the doors. We had a pretty justifiable, I think, reason, and the fact that they brought in this lawsuit up probably made it harder on the side of the Internet Archive to justify what they were doing. I don’t know. Maybe that’s my own, my own conclusion there. But the outcome, as we know which recently happened, was an injunction that told the Internet Archive, as far as I understand it, to stop doing CDL. Essentially, for now.

 

Jonathan: right well, it’s a little more. Let’s fine tune that a bit. So first of all, what happened is, you know, the lawsuit was initially filed back in 2020 when the National Emergency Library was opened. And then again, as I said, it sort of morphed into this focus on controlled digital lending by the open library. More generally. The judge issued a decision in in March of this year. So March 2023, basically saying that the open libraries controlled digital lending with respect to 127 books at issue in the case. So that was the 127 books identified by the publishers hashed, and the other publishers involved in the litigation. You know that that it was not fair use for Internet Archive to distribute those titles through its open lending. It’s open library project in a controlled digital lending manner. Then the court said, Okay, now, parties, you figure out what happens next in this litigation, how we should proceed, what the order would excuse me, what remedies should look like and conceivably there could have been an additional a trial over damages there could have been a trial over saying, you know, or what about other books beyond these 127. But instead, what happened is, the parties started talking to each other, and they negotiated. And they basically they were negotiating, negotiating the judge. You know, the judge initially wanted them to, you know, come back with a proposal within a couple of weeks, and they kept on asking for an extension, and the judge gave them extension after extension after extension, and finally, a. At the end of July, the judge said, no more. You guys decide. You know you have to do something within 2 weeks, or else you know, I’m gonna do it. And so then within 2 weeks the parties came up with a proposed injunction. So they basically came up with a draft injunction, a proposed injunction that the court then approved. Now the injunction, basically said that Internet Archive and its partners, which include some libraries that were working with the Internet Archive would no longer reproduce or distribute  covered books, and we’ll get back to that in a minute. Covered books through the open library. And then the question became. What is the meaning of the term covered books. and that’s where the parties had a disagreement, and presumably that’s what’s been. Why, there was all this delay, you know. It could be that they agreed pretty much early on on most of the contours of the injunction, but that they couldn’t agree on covered books and covered books. The Internet Archive said covered books should just be books by these publishers issued by these publishers that are available in ebook form. Yeah, you know, sort of commercially through overdrive or through Amazon, kindle, but they have to be again available in ebook form. The publishers, on the other hand, were saying, No, no, no! Covered books should be any book that we publish or have published. You know I don’t think there was. I don’t think they were saying it necessarily needs to be in print. I figured I don’t 100% remember. But it basically, the issue is, is it ebooks which are sort of currently available or books, general and so they submitted that question to the judge and the judge very quickly. Within a day, or actually over a weekend, the judge said, Okay, covered books means ebooks. Because you know what the Internet Archive argued, is, that this whole case has been about ebooks, and the fact that you know, the publisher said. It’s not fair use because we are selling these ebooks. We’re making these available now in ebook form, and the open library competes directly with the ebook market. So the case is about ebooks. And so, and the judge agreed that this case was all about ebooks and the harm to the ebook market. And you know, because that’s what the case was about. The injunction can’t be any broader than that. Can’t talk about books generally. And so the injunction covers ebooks. But interestingly, it’s not just this 100 727 titles. It’s sort of any book that these publishers publish in ebook format. And they’re supposed to provide Internet Archive a list of their titles. And they will. And then the Internet Archive is supposed to pull those out of the open library. It doesn’t seem that it has to be titles that are now available in ebook. It could be if the publishers make other titles available in ebook sort of like their backlist. That’s currently not ebook that they can make them available as ebooks. And at that point, Internet Archive needs to pull those out. Even though this injunction just covers these publishers, there is sort of like the side letter where the Internet Archive. I don’t know if that side letter has been made available. But, the way it’s been described is that in in in press releases is that other members of the Association of American Publishers who sort of like were behind this litigation if they want to sort of opt into this deal. They can do that, too. And I’m not 100% sure but what the you know to what extent the Internet Archive is committed, but it’s sort of like if they don’t do it, then they’ll get sued, and you know they would have to do it, at least again, with respect to the ebooks. So that’s that’s the the basic framework of the injunction.

 

Sara: Yeah. So for those folks listening who are not lawyers. Injunction really means stop. You are being ordered to stop doing this. If you don’t. If you violate that I’m assuming you’re gonna get damages imposed against you.

 

Jonathan: Well, yeah, yeah, you’d be right. You’d be held in contempt. And in this case, yeah, damage. Or you know, you’d be fines would be imposed. You know. I suppose if it’s sometimes with criminal contempt, you could go to jail, but I don’t think that would happen here. There’s no reason to believe that Internet Archive won’t just comply. And you know, pull those titles. Yeah.

 

Sara: And also, as you pointed out, the one important factor is, it’s a consent injunction. So you know, the parties did agree to this injunction. Then the judge signed off on it. So yes, I don’t think there’s any. There would be no reason they would be doing it intentionally. There might be an accidental thing that happens. So you answered a lot of the questions like, I think this gives the publishers an incentive to start making more ebooks, would you think.

 

Jonathan: Yes. In in theory it you know, some of their back list that is currently not available in ebook format. They might make available.

But there’s also the question as to why they haven’t done that till this point. It could be that they just don’t see any market at all for those titles. It could also be and this is kinda like the the dirty secret here is that they don’t know if they have the rights to make those titles available. You know older titles, you know the publisher agreement. You know. The agreement between the publisher and the author may have simply been that the author, the publisher, has the right to publish it in physical form, you know, because that’s the technology that was known at the time, you know, in the 1970 s. Or 1960S. You know, these are big publishers, and they have you know.

Lots of books, but it could, very well be for those older titles. Either the author actually has the electronic rights not the publisher, or it could be that it’s unclear. No one knows because the agreement is silent on that, or it’s unambiguous on that. And, more importantly, it could be. No one has a copy of the publishers Agreement. I mean, these are the kinds of issues that came up in the context of the Google Books case. You know, about 10-15 years ago. And you know it was discovered there was a huge area of ambiguity. I mean, there’s all. There were many cases where simply was unclear who has the right to digitize those books. and again, with older books. To some extent, no one really cares. There’s no market for it. And so that’s why you know, you know the pub. But but it’s certainly, you know. Let’s say post 1990 or post 2000. It’s all clear. Publishers made sure they had the agreement or made sure, the publishers agreement said who had the rights. But it could be that the publishers have already made available in ebooks all the books that they really care about, and that they really intend. or the all the books that they have the rights to, and that the other stuff they really don’t have the rights to. Or, you know again, from a lot of those titles that are in the back list, they really might not have the rights. And it’s unclear who does.

 

Sara: Oh, that’s a really good point, and, as we both know, tracking down who owns the rights is never fun, especially if someone who wrote the book, the author, is deceased. Then you’re really just looking down the family tree. And then are they gonna get into some sort of bidding war with, you know. some kid who wants a big payout because their dad wrote some big book, and really no one wants to read it. You know. I mean, there is a reason some of these books are not available in ebooks, and a lot of the books that are currently lent through controlled digital lending. At least in my experience with orphan works again. We just really don’t even know who owns it. Maybe the publisher even went out of business. I mean, this is not for these books cause they obviously know that they publish them. But they, you know, controlled digital lending the aim is not, to, you know take a new release and start making copies of it right the aim generally is to get some books that are not available online to readers and on a one to one basis. What is the take away here? I mean this case isn’t over right. I think it’s going to be appealed right?

 

Jonathan: It’s set forth in the order that the Internet Archive does not wave its right to appeal. And so one can safely assume that within the next, in the very near future they will appeal the case to the second circuit. And so you know the brief a lot of briefing likely will happen this fall. But the second circuit is not the known for making decisions quickly. And so, once the case is submitted. Once you know the briefings done, and they have the oral argument, you know. Again, it could take a while to schedule that that could be, you know, into next year, and then, you know. There could easily be a year, 2 years. It could take a while for them to get around to issuing a decision, particularly when there’s a consent injunction, right? Cause. It’s you know, the parties have agreed to this injunction, so that to some extent, you know, sort of signals to the court. Well, the parties can live with this injunction can live with this kind of status quo, and you know there’s no urgency to make a decision so we wouldn’t. You know it could be 2025, late 2025, or into 2026, before we have a decision out of the second circuit in this case, on the other, I mean, it could be that they see this is an easy case and decided very quickly.. Unlike the Supreme court, which you know, decides all of its cases each term, you know they move along the courts of appeal don’t have that same urgency, and so again, that it could happen very quickly, or they could take their time about it.

 

Sara: They also don’t have any say in whether they take the case. They have to take the case. I mean, I think it’s an interesting question. If the second circuit does take the case, I mean, once they make their decision sorry they don’t have a choice once they make their decision, if it it’s the decision, is against the Internet Archive, and they decide to, and it gets appealed, or against the other. Either party could appeal to the Supreme Court. Would the Supreme Court care about this case? I mean, they just decided a big copyright case. So maybe it was a second case. That would be a very interesting question.

 

Jonathan: I mean, you’re exactly right. After the second surface decision the losing side could petition for cert to the to the Supreme Court. And the Supreme Court. Yeah, I mean, it’s up to the you know. They have the choice whether they accept the case or not. I think it would be kind of an interesting case at that point for them, maybe. It would probably be more interesting if the Internet Archive wins in the second circuit. Right? Then that would be yeah. I would think that that would be more attractive. But if they lose at the second circuit. you know. Then then that’s a less interesting case, because it’s sort of say, well, you know. Okay, well, whatever they did, they did went too far. And so we don’t need to look at what are the limits. But if you know, I think I think the likelihood of the Court Supreme, we’re branding. Cert is greater ifthe Internet Archive prevails on appeal. One of the thing is, you know it’s pretty clear the publishers are not happy with the fact that the judge limited the injunction just or interpreted, covered books to apply just to ebooks, and it, could they? They could very well cross appeal. I mean, they could appeal that even though that’s kinda hard cause, you know the standard, for that would be an abuse of discretion, you know. So I think that that’s unlikely. You know that that, you know, cause why, you know it would be. It would sort of unnecessarily antagonize the judge, and I think, the judge. The reasoning of the judge is pretty solid that, you know. All the evidence was about the ebook market, and so you know and if he and and if he had a gone and applied, had covered books, applied all books that would have been you know better. You know that that would have been more likely an abuse of discretion that the Court of appeals would have reversed on a you know, the second separate would have reversed so so, and then even it’s you know a lot of things. It can go a lot of different ways going forward right?

 

Sara: And so to be clear, this case did not tell the Internet Archive. You have to stop using controlled digital lending as a method to reach readers. It told them you have to stop lending these particular titles in ebook or titles that might become available in ebook if they make them available in ebook by these publishers. Right?

 

Jonathan: And again, yes, and so that that does leave, you know, it certainly is all other publishers. Sort of out of litigation, even though there is a side letter that might bring publishers that are members of the AAP. And again it does leave all the non ebooks out. So that’s right. I mean it. It is somewhat limited in that sense. And it is different. And it doesn’t apply to you know, a lot of the kinds of controlled digital lending that various libraries are doing. Certainly the kind of stuff that Hathi Trust is doing. You know, which, again, is much more circumscribed. and you know it also left out. You know things, you know, relating to sort of anything that that is similar to recent case law. So, for example, the, you know, the Authors Guild versus Hathi Trust, and the author’s Guild versus Google books and Warhol. I mean, it is actually the consent injunction order specifically cited. Those is the kind of thing that is not, you know. Like, when the yeah, this injunction about what say, oh, you can’t make these reproductions, but you could conceivably make reproductions that are consistent with those decisions. And so that that does give. Certainly, you know folks a lot of leeway, even if they’re not in part of this case and sort of say, well, what am I safe doing until you know, for the next couple of years until we have a resolution of this case. It gives a lot of guidance.

 

Sara: Yeah, exactly. So. I think some folks, I’m sure people who are in engaged in CDL in their libraries are thinking what’s my take away right? I’m not in the jurisdiction of this court right? I mean, you know, I’m not a party to this lawsuit. But it’s still helpful. It’s still provides some guidance. Right? So if you are trying to engage in. CDL, and you’re trying to lend a book that is available in ebook format. That’d be more risky, let’s say, than, if you had a book that was older, not available in ebook, you know, maybe even an orphan work that kind of a thing. And so I think it’s still good guidance and even better guidance, probably, if the second circuit affirmed right? Because then it’s like, Okay, well, the circuit courts tend to follow each other. Look at each other, and like I’m in the seventh circuit, for instance you know, II know the second circuit doesn’t bind what we do at University of Illinois. But if the second circuit is leaning certain way, I’m gonna think. Hmm. That’s probably pretty good guidance. Right?

 

Jonathan: Yeah, absolutely. But one can’t overstate the case. So you could certainly say that. Let’s say the second circuit affirms the District Court. And you know also with the you know, that makes it clear that this is just about ebooks. Then that could say, then then an institution could say, Okay, we’re pretty, you know. We feel somewhat degree of confidence that if we or we know that if we engage in CDL for books that are currently available as ebooks. That’s probably you know, a red zone right? That that that raises flags that might be dangerous. You don’t necessarily know that if it’s not an ebook that you’re in the clear, all you know is that if it’s not an ebook, this case doesn’t say anything about it. So it could be. You know, the language of the second circuit, what it’s not deciding could be important. Then it would basically leave existing fair use jurisprudence and people’s judgment, and certainly say, Well, okay, if it’s an older title, an orphan work. That’s pretty. Okay, you know. But what about? If it’s not that old, the title? Let’s say it’s you know, book in the eighties. Right? And you know, the author is still alive. Is that okay? Unclear, you know. But I’m not sure I think right now, even before the decision, I think a lot of University council. say now that it’s not. That’s already a little too risky, and would say when I was gotta be, you know, before a certain date, or you know something else, you know something. The eighties might be a little too recent, especially if you know if it’s from a real university press or a real publishing house that might not be making the whole title available, and again. But you know it could be that the real question coming forward is, you know, you can imagine all kinds of litigation. As people try to refine what’s okay and what isn’t. Okay. I suspect there probably won’t be a lot because it’s just not worth it to the publishers. I mean, I think, that they felt that the Internet Archive, especially once, you know, when it when it had the National Emergency library. That was just kinda like, just too far. It just couldn’t tolerate that. And then once they started litigating, they realize, well, wait a minute. We can’t say that CDL is okay. But the National Emergency Library isn’t right. I mean they couldn’t. I don’t think they felt they could make that kind of concession. Maybe they felt sort of backed into a corner, that, you know, because  the Internet Archive gun. So far they felt they needed to say, Okay, no, you know no to CDL, at least in these circumstances. But I think you know part of it is clear, and all the pleadings they really don’t like the Internet Archive generally. I mean, they feel that the Internet and it could be the Internet Archive, maybe sort of poke the bear too many times from their point of view. And if you change the facts enough, and if it’s University of Illinois Library, and it’s you know, maybe maybe it is books from the seventies and eighties, but you know the university can put together a rationale that not only is it trying to make these titles more available. It has all sorts of statistics that no one has checked this book out in 15 years or 20 years, which is often the case. and they could also talk about the this host. The whole CDL thing is also part of the rationale is managing its collection, managing its space. It doesn’t have enough room to hold all of these books. It could come up with various rationales that then that might tip the balance, and that would be the reasoning would be different.It could make arguments that the Internet Archive couldn’t make. But I have a feeling no one’s gonna litigate that. So I just don’t think so. I think libraries will be careful and you know, sort of like. Let’s say, when they are in books, you know, titles that are in the 80 s. Or whatever they’ll be very selective about what they do and do, and it would be, let’s say, a title that has not been circulated in 20 years or 40 years. Right? And I’m sure you have titles like that. On the other hand, litigation is really expensive, and it seems that there was a side agreement here where the Internet Archive is gonna pay the publishers’ legal fees, but nothing else, no damages. It’s sort of like reading between the lines that seem seems to be what the situation is, but litigation is really expensive. From their point of view, they’re not gonna bother. So there’s gonna be. I think there’ll still be a lot of ambiguity. There’ll be a big grey zone. And because even the publishers and the authors, guild and other groups, you know. It’s certainly in private conversations and say, Oh, we have no problem with orphan works.you know. But of course, their definition of an orphan work might be different from our definition of an orphan work. Right? So so there’s going to be, you know, certain areas where it’s going to be very safe, certain areas where it’s gonna be pretty risky. And then there’s going to be this big gray area in the middle. And I think that that’s, gonna you know, continue to pose a challenge for libraries. And again, all this is assuming that the second circuit affirms, if they reverse it’s obviously very different.

 

Sara: Right. And in terms of the super risky. You know. To me that is always the textbook situation. People say, Oh, I want to put this textbook through. Cdl, what? No, please don’t do that, because textbooks are such a such a small market. Right? I mean, you have a calculus, 101 textbook that’s really just for those students. I’m not gonna read that textbook. That’s not for just anybody that’s for a very small market. On the other hand, don’t even get me started about the price of textbooks. Because.

 

Jonathan: yeah, I mean, you know, making textbooks available would be problem unless again, you know it. It. It’s let’s say it’s an older textbook that no one is using in courses anymore. So let’s say, you know, the second edition of you know Samuelson Economics. And now there’s probably up to the thirtieth edition, right? I mean so an older edition, where the only person who would be looking at it would be a scholar, right? I mean. So I think in every case you could sort of make general generalizations. But even then, I think there could be is situ circumstances. Under which sort of saying, Yeah, making the third edition of the Samuelson Economics textbook is on a CDL basis is fair use. That’s a good point. Yeah, I could see a historical analysis of a textbook that’s really old would be a very different thing than something like Samuelson, which has been the bedrock of economics courses. Again, since you know, since long before I took economics. So it’s been around. That textbook has probably been around for 50 years or more, you know, and sort of seeing how it’s evolved. That seems like a good research, you know. topic for a doctoral dissertation, if it hasn’t already been done.

 

Sara: Yeah. So it’s just another way to say that, you know fair use is flexible, and you really can’t just put a line in the sand I just tried to put a line in the sand. Didn’t work right?

 

Jonathan: That’s right. That’s why it’s, you know, that is the beauty and the frustration of fair use.

 

Sara: The beauty. I think it’s beautiful. I think it’s a good thing right? It’s it gets frustrating for people in their day to day work. They want these hard line rules, but, on the other hand, it allows us to do things and be flexible in ways that counterparts across the world who don’t have fair use, cannot do it. And so, you know, we also then have to keep up on all the fair use decisions. So we can understand what the courts are saying about it, which is a whole other thing. Well, I hope, I hope, in terms of keeping up on the decisions. I hope that this discussion. I know it’s been really enlightening for me, Jonathan, you have such a bird eye view of what’s been going on. Much more nuanced than my understanding. So thank you so much, and I hope it’s been helpful to listeners. I’m sure it has. I mean, it’s just been so interesting to listen to your thoughts about this case, and it’s not over yet. But at least this is something that will be probably in place for a while right while the appeal is pending. So it’s good to understand where we are now. And where we’re headed. Yeah. Well, thanks so much for joining me today, Jonathan.

Jonathan: It was really nice talking to you.

To read the full opinion, see https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf

Hello. And welcome to a special edition of Copyright Chat. Today, I wanted to update everyone on the most recent, exciting decision from the Supreme Court that is relevant to fair use. As you know from listening to previous episodes of Copyright Chat the Warhol decision from the Second Circuit Court of Appeals was appealed to the Supreme Court. And very recently, there was a decision on May 18, 2023.

So just a spoiler alert. For those of you who don’t want to listen to this entire episode. The case was upheld. It was affirmed by the Supreme Court. The Court found that the purpose and character under the first factor of fair use. Warhol’s use of Goldsmith’s photograph was not a fair use.

And that was the holding of the case affirming the Second circuit court of appeals. For those of you who want additional details, just as a reminder, this case centered around Warhol using a photograph of the late great singer Prince. It was Goldsmith’s photograph that she took for Conde Nast.

She took and then licensed the photograph originally to Conde Nast for an artist reference. She was paid $400 for that artist reference and the artist was Warhol.

That first use was actually permissible under license, but then Warhol took the photograph and made another series out of it.

And then he licensed one of those prints back to the magazine and was paid $10,000. Now that particular use was not condoned by Goldsmith who then sued and the court had found at the lowest level that it was a fair use.

It was reversed and then the Supreme Court also found it was not a fair use. Why? Well, the court noted that just because you add a new purpose or meaning or message under the first factor of fair use is not in and of itself enough. You have to consider the degree to which your new meaning or message changes the original work. You also need to take into consideration whether you are making the work commercial. Now, the court does note helpfully and correctly that commercialism is not the be all end all of the first factor simply because it’s commercial.

We know this. That does not mean it’s not a fair use, but. The court does point out many cases where works have been borrowed and they’ve been changed even quite substantially and still it is considered a derivative use. The classic example is someone taking a book and turning it into a movie. Of course the movie has new meanings, new messages, many things might be changed.

But we still consider that a classic example of a derivative work and not a fair use. The reason that they found this particular instance not to be a fair use was mainly because the work at issue here, which is a photograph of Prince, had itself been licensed to a magazine. And that was clearly one of the uses of those photographs. So therefore it was eating into the market of the photographer when Warhol used that same image as a basis for his derivative work and sold it to a magazine. How will this impact? Future analyses of fair use and how might this impact libraries.

The good news is that it really doesn’t change fair use law. What the Court does here is just clarify things and kind of lay out the differences between fair uses and derivative works, which is always an issue for courts below.

One thing I think to think through though in light of this decision is that not every new meaning or message that you can add to work means that it is a transformative fair use.You must consider the degree to which you are changing the work and also whether it is displacing the market value for the original or a commercial.

I think these things were always things we considered, but I think the court lays it out a little more clearly.

How will this impact libraries? I think luckily the answer is not much. You know these works were being used in the same market there they were both creative works they were both artistic works and In libraries, we’re often using works for non-commercial purposes and for research and for, other types of uses.

And so I do think that the good news is that, this doesn’t change the law a whole lot.
It, clarifies the law a little bit, but there’s really nothing too negative that comes out of this case and I think that that is the silver lining. It is not a bad idea to read the case, especially if you’re interested in fair use and particularly transformative fair use because it does a really great job of clarifying, you know, the difference between a derivative work and a transformative fair use. And I think that that is one of the 1 million dollar questions I usually get on teaching fair use to students.

Is where is the line between a transformative use and a derivative work? And so I think that this is a good case to read.

I think it’s a good case to try to understand if you care and are trying to apply transformative fair use to your work and are trying to apply transformative fair use to your works. But I think in terms of libraries and those who are.
But I think in terms of libraries and those who are using, works for research, education, non-commercial I don’t think it’s gonna change our fair use analysis in a huge way.

So I think that that is the real. Bottom line, I think, folks should definitely read the case for themselves.

I think that they should, certainly build on the analysis here and feel comfortable. If they are adding something new in a different way and also maybe critiquing the work or using it for research or using it for educational purposes then those are good, classic fair uses that are not really changed by this case. And, otherwise I think, it’s just a great thing to have some more clarity on the difference between transformative uses and derivative works.

So I hope you found this useful. I do encourage you to read the case for yourself. See if you can find other nuggets of wisdom from, Justice Sotomayor’s opinion here. But in general, there’s nothing to different or new that comes out of this case.

And I think that it is not going to change our practices at the university and research level too much.

I’m glad you were here. Thanks for listening. I hope to see you again. Alright, bye bye.

To read Sandra Enimil’s Blog from Harvard’s celebration of Fair Use Week that is referenced in this podcast episode, go here: https://blogs.harvard.edu/copyrightosc/2023/02/22/fair-use-week-2023-10th-anniversary-day-three-with-guest-expert-sandra-aya-enimil/

Sara: So, welcome. This is a live version of the copyright chat with Sandra Enimil from Yale University Library. We are here, and celebrating Fair Use Week. Welcome.

Sandra: Da, da! That’s the trumpet sounding.

Sara: Very exciting. It’s the tenth anniversary of Fair Use Week. I’m super excited, and I’m even more jazzed because we have a pending Supreme Court case.

Sandra: Very exciting!

Sara: Tell us about it. Tell us what you think about it. What do you think about it?

Sandra: Alright! So the case is Warhol v. Goldsmith, and it is a very exciting case, I mean. There’s the thing of there being, two artists, you know, who are being, you know, not being pit, but they are pit against each other, and a third artist, you know, is the subject of the photograph of which you know one of them, you know made it.  I think it’s a really very beautiful photo of Prince.

And then it became an Andy Warhol—Andy Warhol treated series of full of photographs and paintings, and whatever. The original photographer, Lynn Goldsmith, then, you know, finds out that you know this image has been “Warholized” basically. And you know, contacts of Warhol Foundation to say, this is my image using my image. What’s going on? Nobody’s asked for permission. Nobody has a license, and the Warhol Foundation says it’s fair use. Actually, we’re gonna go to court and get the court to say that it’s fair use. We’re just, you know, you know. You go away. Goldsmith does not go away, and she, you know it, you know, pursues it. And now we’re at the Supreme Court waiting to see, like what the court is gonna say about is this fair use? You know we heard, I think, at in the hearing, the oral arguments we heard, you know, transformative being tossed around. We heard questions about why this particular image? Why didn’t Warhol, you know, take his own image. Interestingly, you know, we don’t hear anything about Vanity Fair, who they license the image, and then they just gave it to Warhol and said, Hey, do your thing with this and he didn’t like not even mention anymore. That is like, so how that works. Okay? They license it right?

Sara: That’s an interesting point, because they licensed it for the 1985 version.

Sandra: Right, right.

Sara: They knew they didn’t have another license, but you know we know why, right? It’s the deep pockets, and they’re going for the deep pockets and Warhol made all the money off of it right?

Sandra: Like, who is right, who has a deep pocket? Right? Yeah, Warhol made all the money.

Sara: Not Vanity Fair.

Sandra: Warhol made all the money. Yeah, yeah. So yeah.

Sandra: So you know I and I still like it not even sure how I feel about the whole thing. I am, you know, really kind of like is, this is, is, is it not? Is it fair? Is it, you know, like thinking a lot about it? And I, it’s actually it’s like this, I’m going into a tangent. So apologies.

But Kyle Courtney host, the Harvard’s that has a fair use blog for on Harvard’s system, and you know, every year he asks folks to write something about fair use and I was just like kind of struggling with what I wanted to write about and decided, okay, I’m gonna write about this case. But kind of not really. So writing about something that’s real tangential. Again, and it’s about the use of likeness. So it’s about it’s basically about Prince. It’s about subjects and photos, and they’re people’s ability to say, yes. So certain things happening with images that you know contain their likeness and then I’m gonna find a way to loop that back around the fair use at some point tonight, while I’m you know, finishing it up and crying. You know as you do as a forget procrastinator. But I just you know I’ve just been thinking a little about that about the use of his likeness, and how this is the set. It’s the center of the dispute, but he’s not really even part of it. Much like Vanity Fair. Like he’s not even part of this, I mean the considerations around him is not really a part of it.

Sara: Yeah. The part where I saw him come into it the most frankly was during the oral argument, where there were weird ways, one where people were joking about whether they, the Supreme Court justices, listened to Prince. Like what? And then also because one of the arguments about the transformative nature of the work was that the original photograph was supposed to be vulnerable right, and that the new photo by Warhol was meant to like be like pop culture and like commercialism and all this. So that was like the transformativeness arguably.

Sandra: Right and that’s what the you know. So his side is trying to try to make that argument of that. They needed this photo. They need because it’s an early photo of him. And they needed to use that, because, of course, the common is like, why can’t you use to use anything else or take up another photo of him? Or you know as Warhol has done in the past. He’s taken his own photos, and then, you know, done his. The extra process that he does to things, or paid for licenses, which he’s also done before. And so they’re like, well, why this photo? Because you could have done anything else. And so that, yeah, that was their response was that it had to be this one because of the reasoning of the original, and how it looked and presented.

Sara: But I, okay, I I know you’re presenting it, as this is what they’re arguing.

Sandra: That’s what they’re arguing.

Sara: But like the extent that they made the comparison, I really bought this comparison, which was they made the comparison to this Campbell soup cans right and saying like, Oh, well, why do you do it? Of Campbell’s soup. He could have done it for Cheerios. He could have done it. It’s like, yeah. But he wanted to do that brand, because that was the brand that was like comfort comforting like, you see, it. And you’re like your kids sick, and you gotta buy them like the Campbell’s soup right?

Sandra: Yeah.

Sara:  And like that was the that was what he was going for, and same thing like he could have gone for another image could have gone for another artist.

Sandra: Yeah. Yes.

Sara: But he didn’t want to. This is what he was doing. And like also, are we seriously going to start telling artists like Warhol? Which brand they should critique like a you know what I mean like it’s I don’t know like I’m not. I don’t wanna be in that business.

Sandra: I don’t know. So the thing that’s like awful, you know, I cause I like, I said. I have been all over the place with this, too, and like listening to a bunch of different commentary about it.

And I’m just like, you know, Warhol and Goldsmith. They’re both white, but one is a woman, and one is a man, and I like thinking about like the dynamics of that. You know that he feels like he could just take this thing from her there, you know I’m you know. That’s in there and then also, like, you know, Prince, like I said, he’s just he’s just there, kinda you know, like he’s not, you know, not even getting like the prints like it’s Prince kind of thing. It’s just he’s just there, you know, as the black artist, you know. So I just I don’t know. I have like so many things that are circling around in my brain, rattling around.

Sara:  I like that. Our, I mean, I hadn’t thought of that point of like the gendered point, and also the fact that, like, you know, she really didn’t get it paid a lot right.

Sandra: No Nope. She didn’t get paid. She didn’t get paid a lot, and then it’s like when she goes to say, Hey, what’s happening here? There isn’t like, Okay, maybe. Or maybe there was I don’t know we don’t know about. I don’t know that, you know. They didn’t offer her something. Maybe they did. But you know what we know from like the filings that they came and said, we want the court to tell us that what we did was okay. And I’m just like I don’t know. I’m kind of struggling with that, you know.

Sara: But that’s where. Okay, yes, but that’s how every good, fair use case happens, isn’t it? I mean, like.

Sandra: You know, I know I’m on pins and needles and like know how it, how it, how it’s gonna end up right? You know.

Sara: Well, I also wonder. And I really, really do wonder this, how it could or would impact libraries at all. And I said this about the second circuit opinion, where they said, like, you can’t change art into art. That’s not transformative and my response to that is well, you know, libraries aren’t really in the business of making art so. But if they start making new transformative decisions, right decisions about the purpose and character that could impact us a lot. So it depends on what they have to say. Right? I’m back to. It depends.

Sandra: I mean, I think, like the how we sometimes get stuck with transformation is like, we think it has to be like a whole new thing. And I think for a lot of the work that we do. You know. Obviously, it’s not everything, but for a lot of it. It’s not transformative. It’s like kind of working in the same direction as the original thing. But you know we have a smaller audience, or we’re only using this. A portion of it, you know there are a number of other things that really help us if we don’t have that transformative piece of it from the first factor. But yeah, I also don’t know how it will impact us. We’re not alone in that.  I think in a lot of the amicus briefs that kinda went around, you know, at least from the library perspective. It was like, we’re just concerned. We don’t. We’re not saying which way to go, but you know we’re watching.

Sara: Yeah, it’s kinda like, do no harm right like, do no harm.  Supreme Court like you can decide what you need to just leave us out of this.

Sandra: Yeah, please please don’t ruin the Fair Use part and make it very against, but worthless to libraries.  Do I think, you know, there’s definitely especially with, like, you know, this particular Supreme Court, like, what are they gonna do you know? And the thing about oral arguments is like it doesn’t give you anything like you just are listening. And it’s interesting and blah blah blah, but they never. They’re not really showing their hand.

Sara: Sometimes they do, but I felt like in this case it was hard to tell. It was very hard to tell.

Sandra: Sometimes. Yeah, yeah. It was hard to tell. It was hard to. Yeah. It was hard to tell from this from these arguments, though very interesting, though.

Sara: Yeah, it’ll be. It’ll be super interesting, I mean, no matter what happens, I’ll be interested to read the case and to try to understand it, and then to like, look at the tea leaves and try to see what impact it might have it’s it will inevitably have some impact. Because I mean, look at the Campbell. The last case that we had with the Roy Orbison on fair use so long ago, I mean, that has had a massive impact.

Sandra: Yeah.

Sara: So I do agree with the first, do no harm. Yeah, but you know, yeah, I mean, cause you know, Campbell give gives us, you know, the articulation of transformation.

Sandra: And but you know, I think it’s interesting that we go to the Supreme Court. It gives us transformation. But in hip, hop, you know there was where it should have been like a whole bunch of folks like, okay, so we can sample and like the things. And that actually didn’t happen. How they go interesting. Yeah, cause you would have thought that people, you know, we transformative. This, you know, came out and helped a lot of other at industries along with the music, industry and hip hop in particular, where it shows have been the case where. Now rely on and say and talk about. I’m making a comment about this, so I can go ahead and sample this. It didn’t turn out that way and went a different tact, which I think is really fascinating.

Sara: Yeah. I wonder why that is. Maybe that’s a difference in the community.

Sandra: Oh, yeah, for sure. And you know, maybe one day when I can invent more time, I’ll write something about that. I mean, a lot of people like thought about it and mentioned it, but I really wanna know, like, why, why not?

Sara: I think you should do that sooner rather than later, for a special issue that’s coming up, that I might know something about. I see what you’re saying, and like I’ve had conversations with. So a friend of mine is married to a jazz artist, and like that’s another area where, like jazz artists like, they steal from each other all the time, and nobody like gets mad about it, because it’s just part of the culture. And that’s the culture of it, right?

Sandra: That’s the culture of it. And yeah, I definitely think there is. There’s something interesting about it. I think there’s something interesting in, you know. Now we have, you know, mash-up artists. And yeah, some of them definitely license. And you know they are. You know they are licensing things, but not all of them. And they’re not getting in trouble.

Sara: Well, this has been so fun. And actually, I love the way this conversation went, because it was like just it just turned many ways as one does, and I I hope you all enjoyed listening to this podcast. Sandra, thank you so much for joining me for fair use. Week! It was such a blast, and may all your fair use adventures be risk-free.

Sandra: Amen! Thank you.

Sara: I really appreciate talking with you. Thank you.

Sandra: Bye, everyone.

You can listen to the oral arguments yourself here: https://www.supremecourt.gov/oral_arguments/audio/2022/21-869

Pia M. Hunter is a Teaching Associate Professor at the University of Illinois College of Law and the Associate Director for Research and Instruction at the college’s Albert E. Jenner Jr. Law Library. She holds a J.D. from the University of Illinois College of Law and a Master of Science from the School of Information Science at the University of Illinois. Prior to joining the law library faculty, she served as Visiting Assistant Professor and Copyright and Reserve Services Librarian at the University of Illinois at Chicago (UIC) where she researched and developed best practices for copyright and fair use for instruction for the UIC campus. In 2013, she led the initiative to create Fair Use Week, an annual celebration that highlights the fair use doctrine and its significance to artists, students, faculty, librarians, journalists, and all users of copyrighted content.

 

Sara:                    Welcome to a live recorded episode of Copyright Chat today. I am so excited to bring you the wonderful Pia Hunter. Welcome, Pia.

Pia:                      Thank you, Sara. It’s a pleasure to be here.

Sara:                    So if you didn’t know, Pia is a law librarian at the University of Illinois College of Law and a founder of Fair Use Week. Tell us about that Pia.

Pia:                      Oh, gosh. Fair Use Week is, first of all, it’s so wonderful that it’s, we’re coming up on a 10 year anniversary in February, 2023. I’m truly excited about that, but it is the result of a, a meeting of librarians back in 20 12, 20 13, and we were talking about the significance of fair use and not only how important it is to academics and scholars, but to everyone, to, to artists, to people every day who create content, everyone. And so we were discussing how wonderful it would be to set some time aside each year to acknowledge fair use, why it’s significant in our everyday lives, and promote it to everyone so that we can take up the banner and protect this, right? Because I know that it’s an affirmative defense in terms of the Copyright Act, but there are things we can do under fair use, and we, we use fair use every day. And so Fair Use Week is designed to promote and, uh, inform people about that.

Sara:                    That is really exciting. I keep forgetting, we’re coming up on the 10th anniversary, and this is a really interesting time p to be talking about fair use because as we know, the Supreme Court is addressing transformative fair use right now.

Pia:                      I am, I’m not afraid to admit that I am a bit nervous <laugh> about this case. I

Sara:                    Think I, I think I said that in a nervous tone, <laugh>,

Pia:                      I think you said, I think your tone certainly reflects my, my feelings on the subject. And I’m looking forward to our discussion because a lot’s been happening lately.

Sara:                    Yes, a lot has been happening. So if you haven’t been paying attention, let’s get you up to speed. There is a very exciting case involving the Andy Warhol Foundation and a photographer and the late great singer Prince. So this is a really fun case that is up at the Supreme Court. Of course, it started below and in the lower court, um, the Warhol Foundation had one on its fair use claims where Andy Warhol borrowed, I say borrowed in a nice way. Um, the photograph of this famous photographer who took a photo of Prince, and he originally had, had permission through licensing to use the photo for an inspiration in a magazine article. But later on they, they, he had another reproduction and he did not have permission, and he claimed fair use. And in, in the Second Circuit Court of appeals, they reversed and said, Nope, it was not a fair use. And the issue at the Supreme Court was all about purpose and character of the use and whether it was transformative, which is, oh, scary to me because the last time Supreme Court addressed this was 1994. Pia, tell us some more about kind of what the arguments are on both sides.

Pia:                      Okay. The arguments from the Goldsmith side, that’s the original photographer, the artist, is that basically the Warhol Foundation has not produced this content in any way that is transformative. And when we went into oral arguments, there was a great deal of discussion about factor one, what is the purpose and character of the use? And the justices were really clued into fi trying to determine how the photograph was diff different in what ways from the Warhol piece, which is an artistic rendering and has been produced many, many times in several prints and sold over and over again. There’s also, and on the Warhol side, they’re claiming that it’s a transformative use, that even though the commercial purpose of is the same and similar, that Warhol by taking the photograph and creating a painting from it. And from that painting came several other prints that were licensed and sold and so forth and so on, that this is a completely new work.

Pia:                      And the justices seem early on to be pushing back against that because if you look at the photograph and you look at the paintings and the prints and the reproductions, you can s it’s obvious that those come directly from the photograph. And this is what’s troubling to me because I think for so many years there’s been a lot of talk about transformative use in terms of a fair use argument. And quite frankly, I think transformative use has dominated to the fact that it has overshadowed some of the other factors that are just as important. So this case may bring some balance back to looking at all four factors, because if you consider all four factors, then this could very well be a fair use. But if you’re basing it solely on whether the, the level of transformative, then we run into, into some difficulties.

Sara:                    That’s an interesting perspective. I think, um, I agree with you that on one side they’re arguing that, um, it was just the same use, right? So I think that the, the thing that troubled the court here was that on the one hand, this photographer was in the business of licensing her works to, um, vanity Fair and other magazines. And that was the purpose that Andy Warhol also used his work for in this instance. Now, to me though, Andy Warhol in general has very different uses for his works, right? His works hang in many mag in many, um, museums, people come to see his works. They’re not only used in magazines. Now, I’m certain that this photographer also could have her work in a fine art museum, but I do think that there are broader uses for a Warhol work. Um, and a lot was brought up about the other Andy Warhol case, the famous soup can case, right?

Sara:                    Where the judges said, oh, well, this is not as hard a case in that instance because the soup cans were used for a different purpose, right? And normally the logo on Campbell’s soup cans was used to market the brand. And of course, um, the use by Warhol was to show mass consumerism. Um, one point that the, the, uh, uh, photographers, lawyers made was that he had to have some necessity to use that particular photo. I wonder what you make of that argument, Pial, because the justices seem to be kind of buying into that a little bit.

Pia:                      They did seem to buy into that a little bit. And the necessity argument is one that I find fascinating because it was ne it was necessary to use the Campbell soup can in its entirety, it’s, it’s it’s logo, it’s symbol. You look at that automatically and you recognize that it is Campbell’s soup. So the necessity argument and Warhol’s subsequent series of that discussion sparked a discussion of consumerism. When you, when I look at the Prince photo, I’m a little <laugh>. It’s funny, I am such a huge Prince fan that when I look at the Prince photo, I think that it’s Prince. So it has to be necessary <laugh>. And I know that’s not a legal argument. It’s more than mentality, I think for me than anything else. But looking at this, it’s, it’s, it seems that the justices are buying into that, that philosophy. I’m not sure how sustainable that really is in the long term.

Pia:                      He could have picked any number of photos or images to do that exact same thing. It didn’t not necessarily have to be prints, but because it was print, I think that lends itself to the argument about the fourth factor and commercial use and market for the work, because he’s doing what is considered a reproduction. And I know that the, uh, Martinez, Mr. Martinez, who’s the Warhol’s attorney, used the term follow up work. And in my mind, that is the same as a derivative work, which falls to the bundle of rights that is reserved for the owners. So as this goes on, it’ll be interesting to note how they, they, they parse out each factor and really examine what’s happening in terms of the original content. Is it truly a derivative work? What’s the difference between a follow up work and a derivative work? I mean, I think it’s, it’s a subtle nuance there, if there is a difference at all. And they’re gonna have to examine each of these factors closely. So this, this may be something that, that justices appear to embrace now in the early stages, but I think that, that, that may change as time goes on.

1:                         Yeah, I think that’s interesting. And I, I agree with you that one of the cruxes of the, the issue here was what is the line, or where is the line between a derivative work and a transformative work? Although to me, that’s always been the question, right? That’s always been the million dollar question in these types of cases. It just was made even more salient here because one of the things that they were pointing out is if you have a film, for instance, a movie that is an adaptation of a book, you would never say, oh, sure, that’s a fair use. You would always think they need to get a license because the natural progression of a best seller is, oh, yes, let’s make a movie. And of course, you want the person to be encouraged to make the book in the first instance. And so they need a piece of that economic pie, right, to incentivize creation.

Sara:                    But, um, in this instance, was the photographer ever going to make a print, a painting print of her photo? I don’t think so. So I really discouraging her in any way. Um, but of course she would be happy to take that license, right? I mean, she would be happy to take a license, especially for her work in a magazine, which I think is where they got caught up a lot during this case. And I wish they had not stuck to only that part, because I know Warhol’s attorney pointed out this was a series, right? Yes. Warhol did not make just one print. He made a series of prints and the copyright was claimed in the entire series. And so only one of those photos, I think it was called Orange Prints, was used in the actual magazine article. And so maybe they could even find, okay, well, that one wasn’t all right, but the other ones were is that, can you split the baby that way?

Pia:                      I’m not sure that you can. And that’s, that’s an excellent point that you make. And that’s a part that’s been troubling me for so long. Also, the original license, Goldsmith did this painting, took the photograph, licensed the photograph to the magazine for an artist. It did not say Warhol for an artist to make a a, a rendering from the photograph. So he was licensed to do the work. However, in the process, he actually created additional pieces. The Silk Screen Painting series is what it’s called. There were two screen prints on paper and two drawing, and all of these are referred to as the print series. Some of the originals were sold, some reproductions were printed and sold and licensed and sold to other people. So it we’re looking at, it’s, it’s fascinating because I’m still always coming back to the, or the terms of the original license.

Pia:                      How much leeway did he have in the original license that the magazine purchased from Goldsmith to make a derivative work? Because that’s really what it is. They license access, a use of the photo for someone else to build something upon that. That’s the first thing. And then the second thing, the Goldsmith attorneys are arguing that this case is significant because it’s really fighting about the individual rights of the creator versus someone who has the power and the, the name recognition of Andy Warhol. So because, uh, someone who’s famous decides to take and, and use a work and create something out of it in their own fashion, then that would give those people who are in a financial position or famous artists, uh, more power and authority to use people’s works than say, someone like me who would come along and make a stick figure derivative or something like that. So that’s another issue that I’m, I’m curious to, to see how that’s gonna go.

Sara:                    Yeah, I think that the argument goes, you know, Warhol makes it, and it’s a piece of art. I make it, and it’s what just not great, right?

Pia:                      <laugh>, it’s just a photo. So the question becomes how does, how, how are artists able to protect their derivative uses while still leaving fair use on the table for other creators to come and use as well? Because otherwise, what we’re doing is we’re going to squash creativity and people’s desire to create new content.

Sara:                    Yeah. And that also leads me to think about appropriation art, right?

Pia:                      Oh, yes. A favorite topic of mine

Sara:                    Is a whole other variety of art. And is, would this, I mean, if they rule that it has to be some necessary purpose, like with, um, the, the attorneys who are protecting the photographer, does that just quash any kind of appropriation art?

Pia:                      The potential for that is so great that that is really another part that, that I find troubling. I am not a fan, as you well know of the Richard Prince series, uh, he’s an appropriation artist, started many years ago with the Marlborough ads. He’s done some things with, uh, catcher and the Rye, taking a, a copy of Catcher and The Rye, leaving the print on the cover, the exact same except in place of the author. He’s put his own name. There’s the Instagram v prince that’s going on right now, Cariou v Prince, back from the early two thousands. So this is an artist who specifically takes people’s work and either displays his name on it or does something really, really different. Not different in terms of maybe size, but an exact replica. So a case like this would have a direct effect on the current case that’s working its way through the courts now, gram v prints and, and other sorts of things. And it would, I’m thinking about memes and other derivatives that we take for granted and things that pop up across the internet that people find funny and creative. What happens with those?

Sara:                    Yeah, what does happen with those? I mean, I think, I think with memes you can make a stronger argument that you’re not usually trying to make any money off of them. Exactly. You might, you might win more on a factor four analysis. And that was one of the things that they pointed to quite a lot, uh, at least, um, the Warhol Foundation attorneys, when they were asked about, well, what about, you know, some really creative new film that is based on a book, but it’s so different, right? Why isn’t that a fair use? And the response was, well, you know, look at factor four. It’s still highly commercial, so that even if it is different, it might still be a derivative. So I wonder if the part of the challenge here was that they were really trying to narrow in on the first factor, but, but we always try to weigh them together, right? Always in my mind, they go together. And so trying to parse them out makes it really hard.

Pia:                      That’s absolutely correct. And I, in this instance, parsing them out seems necessary because the first cat factor we know is, uh, what’s under discussion now. But then you move on to the, the second factor. This is highly creative, uh, purpose in nature of the work, and, and you’re moving through the factor. You get to factor three, you’re looking at the amount, well, it was used in its entirety. So the, the, the second and third factors are almost sort of, uh, settled. And that brings us back to one in four. How is it being used? How is it the Campbell soup, uh, series that Andy Warhol created? It was an obvious commentary to many. I’m not sure the commentary in this respect is so obvious. Goldsmith claims that the photograph was showing Prince in a, in a sensitive way, a way that he’s not frequently depicted in album covers and other sorts of, uh, photo shoots and different things.

Pia:                      So she was capturing a certain vision of the artist in vulnerability. And the Warhol claim, I believe, if I remember correctly, is that they were not, they were exploiting that in different ways and, and making, uh, a different rendering of that original work. But I had a discussion with someone who is not into copyright law at all, and showed them the pictures because they’d been hearing so much about the case, and they made a very interesting point. Uh, when you look at the Wizard of Oz in black and white, and my mother in particular is a fan of, uh, old film Warren movies and so forth and so on. And she says, I don’t like the color. I don’t like it when they add color to it, it’s, it’s different to me. And that argument swings both ways because when I showed the, the port the photograph to someone and they looked at the color, uh, that that Warhol added, and the creativity that he placed upon the photograph, that person said, I don’t see much of a difference. They just added color. It’s the same thing. But someone else would look at that same rendering and say, it’s completely different. It’s, it’s different. To me, there’s an aesthetic. So when you’re looking at art in this way, do we have to become art critics to make this type of assessment? And I think that’s why this case is so troubling to me because there, it, some of this really is subjective.

Sara:                    Well, I think that the Supreme Court justices also were troubled by that. And, and we’re asking, you know, how do we decide this? Right? And, um, do we need expert testimony? Are we supposed to be asking what the artist intended? Right? Some of the early fair use cases kind of looked at the artist’s intent. And then of course, in this case, Andy Warhol’s deceased, so no one can look at his exact intent. Um, so it, it does get pretty troubling because do we want the Supreme Court justices to start guessing and becoming art critics? And the other thing that they were mentioning was, which level of generality are we looking at in terms of the comment? Are we looking at that this was used as magazine cover, and so was this one okay, done, right. That’s the level of generality. But if that were the case, I think that that many of the cases, including the Supreme Court cases, would’ve come out differently, right?

Sara:                    Because we had the two live crew song. If you look at the Campbell case, um, Campbell versus Acuff Rose from 1994, we had a two live crew song, and we had a pretty woman song. They’re both songs. Okay, we’re done. I mean, that level of generality doesn’t work. But in that case, they said it was a parody of the song and that was why it was fair use. Um, and so what is, what is the, the conclusion here, right? Is it that it’s, uh, different in the way that it is portraying prints? Because it is fine art. I mean, the, the second circuit below seemed to say they were transforming fine art into fine art, therefore we’re done here.

Pia:                      That, that, that seems to be, that’s how I took it as well. And the other part about the Campbell case is that not only was it recognized as an obvious parody, the commercial use was the same, but the audience was significantly different. So your Roy Orbeson fans are not going to be listening to Luke Skywalker and two live cruise rendition of a song with the same title. So the, the impact on the, the effect upon the market is limited because we’re looking at different audiences. Whereas here, it’s the same sort of thing. It’s going to a magazine and the types of, and the same type of magazine, if not the exact same magazine that was used for the

Sara:                    Original, I think it was, I think it was, I think it was just the the parent company

Pia:                      Conde Nast,

Sara:                    Yes. Yeah, it was the same one because it was Vanity Fair and then Conde Nast. But here’s the thing, uh, it sounds like then you’re, you’re almost getting into the fourth factor and the commercial, um, impact. However, if you read factor one carefully, it says purpose and character of the use, including whether it was a non-profit or commercial use. And so the commercial use can impact factor one as well. So technically the, the court could say, well, maybe it does comment somehow, but it’s the same commercial impact or the same commercial use for the same exact audience. Um, I still wish they would address the other works in the series though, because I don’t think they were aimed at, you know, magazines. I think they were just aimed at the fine art community. And I do think that’s a different audience than people who are interested in that particular photographer’s work. There are a lot more people who are interested in Warhol’s work and his comments on commercialism and society, unfortunately than this artist. I mean, I think that’s just the truth of, you know, what Warhol’s work sell for. And one of the things they briefed was, yes, her work doesn’t sell for as much as his work does, which to me it means they have different audiences, don’t they? I mean, maybe not for this particular magazine, but in general they do

Pia:                      In general that I agree in general, they have very different audiences. But here there’s not going to be an opportunity for Goldsmith to recover for renderings of this paint of her photograph that Warhol created that are hanging in museums now, that are in people’s private homes now because there is a series of silk screens and then there are the various reproductions, it’s the orange prince reproduction in published in the magazine that people purchase at a newsstand or got, or however way they get their content. That’s what sparked this controversy. And because she, I don’t believe that she would’ve, she wasn’t even aware that this had happened. And so you’re right, the audiences are completely different. Uh, people who paid to have Andy Warhol’s Warhol’s version hanging in their living rooms or museums that are, are, are holding this work now, would not have paid for that photograph. And that’s, that’s, that’s, that’s a great case for the audiences being different, but it’s this one single use in a magazine that could upend the way we are able to look at fair use in terms of these types of works.

Sara:                    Will it? Because here’s the other thing, couldn’t they just, I mean, to me, bad facts make bad law. Okay? And these are bad facts.

Pia:                      These are bad facts. These are terrible facts. They’re

Sara:                    Terrible facts. So couldn’t the Supreme Court just say, okay, we agree that, that, you know, Warhol did comment in a different way, but you know, we still agree ultimately that it was a derivative because of this, this, and this based on these particular facts, right? And so could they, shouldn’t they limit it to this case? Cause the facts are so bad,

Pia:                      You are making my argument <laugh>. I want them to limit it to this case. The facts here are terrible. Any, any move to make this case new precedent would be devastating for artists everywhere, uh, for creators, for for, for, for people who have existing works, think of how many things would unravel based on this, uh, a radical decision of that nature. And I can see, I’m optimistic because when you hear the oral arguments, you, you listen, I, I, I actually, I listened the first time with my eyes closed, and then I’d used your method, which was very good. Thank you very much. And I read the transcript while I listened a second time, and you can see them wrestling with all of these pieces and really trying to come to an accord and a deep understanding of, uh, the artist’s rights, the rights of the Warhol Foundation. And I can see that they’re casting an eye to a fu to the future to understand how this is going to ultimately affect creators and, and, and people who are trying to make content. Because this case has the potential to, uh, stifle so much creativity and so many new works that, uh, the public will be deprived of having. So I’m hoping that that, is that what you suggest? I’m, I’m gonna call that the most reasonable compromise. I’m hoping that that’s the end result.

Sara:                    Well, I am too. And I think, um, you know, given the last Supreme Court case, the Google versus Oracle case, you know, I do have hope. I understand that the Supreme Court has overturned lots of precedent, very long standing precedent, even very recently in the abortion case. So I mean, they are, they can do it. I don’t think they’re going to, in this case, I, I’m hopeful that they’re gonna limit it. And if they do, um, decide that, you know, maybe this wasn’t a fair use, that it won’t be as sweeping and terrible, um, as it could be. That’s my hope. But I, I, and I did see them wrestling with the creativity and the free kind of speech issues in the oral argument. And I saw some of the even conservative justices, you know, asking questions along those lines, which made me a little bit hopeful.

Pia:                      That’s exactly right. And they’re, they’re, they’re looking at all of these different factors necessary or least useful. I, I know that the Goldsmith side is, is presenting almost a new sort of test. That’s the part that I wanted to say mm-hmm. <affirmative>. And that test, if adopted would be devastating. So I’m really hoping that your, your, your recommended compromise is something that the justices can, can, can use to find some sort of middle ground.

Sara:                    I don’t think there’s any basis, I’m sorry, all due respect to the Goldsmith’s, um, lawyers here, but I don’t think there’s any basis for coming up with some new test based on these terrible facts. It’s, it’s just a bad, it’s a bad way to go. And, and we have lots of precedent out there building on the Campbell case and the Campbell case in, in no respects, as anything has to be necessary, it does say you have to avoid the drudgery if you’re only creating the new thing to avoid the drudgery of coming up with something new. It does say that, but that doesn’t say it has to be necessary.

Pia:                      It doesn’t. And, but, but facts this bad required some creative and quite frankly, brilliant individual to come up with a new test. That’s the first thing. Otherwise, there’s no argument to make. And the second thing that I wanted to mention is that the government requested leave to argue, and they were granted leave to argue. So now you have the, uh, solicitor general sitting at the table with Goldsmiths. So the government has a vested interest in this. And I wonder how that looks to people who are examining this case from the outside, the fact that the government has taken up the argument on the Goldsmith side. What does that do for, uh, copyright law moving forward? Yeah, what does that say?

Sara:                    That’s curious, right? Yes. Because, um, it’s, it’s a little bit strange. And what is their interest necessarily? I mean, I, I’m assuming they’re saying our interest is to correct is to protect authors, but you know, we also have the interest of the other side, which is, you know, the limitation on the rights of the authors, which is guaranteed by fair use. And as pointed out, even in the definition of derivative works, it still says as limited by fair use. So where’s the government’s involvement here? Why are they involved in the first place?

Pia:                      That’s the question I’d like answered. <laugh>, back to the constitution. We go for the creativity and make sure ensuring that people are able to consume this content. That’s where we need to start. Yeah, back to basics.

Sara:                    We really do need to get back to basics. And I I will expect this, um, decision to come out soon. They haven’t been taking a whole lot of time deciding cases. It’s already been a little while since the oral argument. So, uh, we will definitely keep you posted and maybe we’ll have a, a, a debrief after the opinion. We

Pia:                      Can have another conversation. I think we have to, don’t

Sara:                    We? I think we do. So I, um, I hope this, you found this useful and interesting, and I will link to the oral arguments from this, um, podcast episode so you can follow along and listen yourself and come up with your own decisions about where you think this might be headed. I think the Supreme Court sounded pretty rigorous on both sides, so it wasn’t obvious to me who they were favoring. Um, but I’m, I’m, I just hope they don’t do anything drastic. <laugh>,

Pia:                      I concur. <laugh>.

Sara:                    Well, Pia thank you so much for joining and, um, we’ll, we’ll speak again soon.

Pia:                      Yes, thank you for having me. And, uh, fingers crossed.

Sara:                    Fingers crossed.

Also check out the ALA Policy Corps  as well as the ALA Advocacy website

Sara:    Welcome to another episode of Copyright Chat. It’s been a hot minute sorry about that everybody but today we have a        very special guest. We have Jim, Neil. Hi, Jim!

Jim:     Hi!  How are you?

Sara: Great! And Jim is the University library in emeritus at Columbia University. He also served as ALA President, and he received 2 awards from the ALA, the highest award on as an honorary             member in 2022, as well as the L. Ray Patterson copyright award. Congratulations Jim!

Jim:     Thanks, Sara.

Sara: So, Jim, I just wanted to get started. How did you get involved in copyright, as you’re not a lawyer by training. But you’ve been such an advocate in the copyright field and            I’m just curious how you got involved in in the beginning.

Jim:     Well, it it actually goes way back to the early 1970s. I graduated from Columbia School of Library Service at the end of 1972 and began working as a librarian the following year, and you’ll recall this is when a lot of the discussion and debate began to revolve around the updating and modification            of the US Copyright Law. And so my early professional career was advanced during this period of time, and I participated in many of the early discussions that led up to the 1976 copyright law.

And so I was born in the context of fair use and the context of the exceptions, the limitations that define the ability of libraries to serve their communities.

I hung out with copyright in a pretty low level way until the late 1980s, and it was at that time when so much of our work had become automated, and we’re beginning to see the early publication of the things that we had historically acquired in print were now becoming available electronically, and of course that would explode in the 1990s.

It was also the time that two other things happened. one in the mid-1980s, I’d become very interested in national information policy and my initial plunge into that was in the area of government information: Making sure that the information the Government produced was widely and openly available and accessible.

But, in 1990s I also became Dean of University Libraries at Indiana University, and that was at that time that I recognized how important it was for up or major research libraries, and by extension all academic libraries, to play a significant role as new thinking about copyright began to evolve.

I worked with the Association of College and Research Libraries. I worked with the Board of ARL, of which I was then a member, to really position us as associations that were part of the national debate around copyright.

I also worked with Indiana University to create what I think was the first University library-based copyright advisory office at Indiana University based in Indianapolis and we hired Kenny Crews at that time to run that office. And so I began to meet with groups of librarians around the country, with different boards to develop strategic direction and actions around copyright.

And when I made to move from Indiana to Johns Hopkins where we created a similar copyright office. I got a call from Washington asking me if I would be willing to join the US delegation that was going to go off to Geneva to participate      in the World Intellectual Property Organization, a diplomatic conference negotiations on copyright, the basic   objective being to update the international copyright law to reflect the digital and network environment in which we were operating.

So I went off for 3 weeks to Geneva, was an advisor to the US delegation.

I tried to get exceptions, limitations, and fair use into the discussion and the debate and that ultimately, of course, led to the             adoption of the Digital Millennium Copyright Act in the United States.

So that sort of explains the early involvement in             participation.

Sara:    Sounds like it was an adventure beginning with the change to the Copyright Act in 1976 all the way through the Digital             Millienium Copyright Act, which, of course, is still debated today.

And the library exceptions which we’re still trying to get      at an international level today, so it’s still ongoing. This work never ends, Jim, when is it going to end?

Jim:     I think it’s perpetual.

You know we play a lot of defense in the area of copyright not wanting to open up discussions about aspects of the copyright law that really benefit us and enable us to support our communities, but there’s been so much effort to strengthen copyright on behalf of the copyright creators, and therefore we’ve been active in Washington for the last 20 years, trying to prevent unnecessary, inappropriate, and difficult to work with copyright changes coming out of Washington. We’ve also had to deal with several important initiatives at the State level during that period as well. And I think we generally have been have done okay. We tried to work with the creator community to update section 108 of the copyright law, which is that section which specifically provides the exceptions and limitations for libraries and artists enabling us to do things like inter library loan, and make preservation copies, and copies for users, and so forth.

But we did not come out of that 3-year process. I was on the 108 study group.

We did not come out of that process with an acceptable plan of action that would enable all interested parties to reopen 108 and make the necessary changes.

And so that was an interesting process. and I learned a lot about how copyright works. And who is involved, and what the relationship is between the publishing industry ,the creator industry, and the copyright office in Washington. So we’ve done, I think, modestly well representing libraries, but there’s so much more work to do.

Sara: You mentioned the section 108 study, and I do assign that             discussion document from the US Copyright office that came out of that study to my students and often they say to me, Professor Benson, why hasn’t this happened? What’s going on? There’s a model law at the end. Why has this not happened? My perspective, and I wonder what your perspective is, is that potentially opening up section 108 could be problematic. Given what happened with some other portions of the Copyright Act, such as the TEACH Act that went South.

I mean the TEACH Act is good in theory. If you’re, unfamiliar with the TEACH Act it provides online opportunities for educational uses of certain works it’s supposed to mirror the face-to-face teaching exception under Section 110(1). It’s in section 110(2) of the Act, but unfortunately it became so cumbersome to apply that most universities, including mine, don’t really exercise it.

And I wonder what your perspective is about opening up section if we were to do that today?

Jim:     I think it would be very difficult and challenging, and we would put our ability to serve our communities at risk.

One of the real important debates within the 3 years of the 108 study group was are digital works covered by exceptions and limitations in copyright?

And what is the role and purpose of contracts, licenses that libraries sign with publishers and other creator companies.

What rules govern the use of those materials? And I think it’s clear from litigation and from legislation that there are really two streams of guidance. One is if it’s in print, you’re probably going to be able to apply the exceptions and limitations in section 108.

If it’s in digital form, you’re probably going to be mandated to use the provisions of the contract, the license agreement that you sign. The public law of copyright versus the private law of contract. And the problems that I have with that are that it means that I put this in the area of social justice. I always have. If you have good lawyers, if you have a lot of money. If you have influence you have good connections, you’re probably going to be able to negotiate a better contract, a more favorable contract, then the smaller instructions that don’t have good legal counsel don’t have a lot of money, and are gonna just defer to the contract that they sign.

To me, that is an issue of social justice and it’s on that basis that I fought this from the very beginning. I think we don’t want to open one way. It could really create a real risk to our ability to serve our communities.

We have seen other initiatives coming out of Washington besides the TEACH Act.

We recently went through the crazy CASE Act deliberations, and worked very hard in this provision of creating a small claims court capacity for people to get sued for supposed violations of copyright and making sure that libraries and library staff were exempt from those lawsuits. So I think it’s going to be a constant battle, and I think, with a new Congress coming on board in the fall—and we’re not quite sure what the political makeup will be of the Congress at this point, but we have we have some thinking about that, will there be new initiatives to upset the balance that we’ve enjoyed in the copyright arena.

We’re also seeing more what I would call legal court cases around copyright, than historically, we experienced. And I think what we don’t want to happen is that judicial decisions begin to define what copyright is in this country, and I think that’s going to be a real challenge going forward. Copyright for most of the American population has been one of those “MEGO” topics—my eyes glaze over. People don’t really know what it is or care about it, or know that they should care about it, and we’ve seen over the last decade or so copyright appearing on the front pages of newspapers and hitting the popular press in the areas of music and film, and art. And so people, I think, are a little bit more aware of copyright.

But too often, I think they assume that they’re protected because they hear the words fair use, and they think if they’re not out there trying to make money and copying stuff willy nilly that somehow they’re not subject to the provisions and the protections of copyright. So I think I think court cases could become more important going forward.

Sara:    Yeah, that’s a really good point and one of those court cases was in Maryland recently, with the e-book legislation, where they attempted to impose reasonable terms for libraries on e-book licensing at the state law level, and it was deemed by the court to be in violation of copyright preemption.

And I wonder what your views are on that. I mean. You mentioned licensing earlier, and it really is becoming one of these issues, especially for public libraries.

It’s a place where you know in order to serve their patrons public libraries really need to have access to these e-books, and yet the licensing terms can be quite expensive and limiting. Where do you see this going?

Jim:     Well, I think there’s a whole series of issues that are bundled up in digital content and copyright, and we’ve mentioned two of them. The one you reference of which Maryland is probably the most celebrated. I use that word carefully, celebrated case, but it also has progressed in several other States, not successfully. And it’s as you educate it’s largely a public library issue because they want to provide a maximum access to their to their communities for the books that people want to read and material that people want to listen to. But if they can’t, even buy this stuff if they can’t even license the stuff under any terms, then I think it’s a real problem.

And so the first issue is, will libraries be able to license this stuff and can publishers block libraries from getting these materials? The second is the terms under which they license and onerous terms.

A single reader at a time. Issues of cost.

I could buy the book for $20 but to license, a copy, $80. Those are onerous financial and use terms.

So that’s one stream of concern.

The second stream of concern is that we over many decades under section 108, have learned what we can do to in terms of supporting our community through inter library loan and preservation and copies for users under an analog, print-based environment.

But when the contracts begin to limit what we can do.

For example, we had, about 15 years ago, a major hassle when these licenses from major scholarly publishers said we could not loan things on inter-library loan internationally: we could only loan them to people or institutions in the United States. That was a shock and a signal that these license terms would continue to deteriorate and close up. And so, we fought that battle and several of the major publishers backed off. So I think we need to always be vigilant and we need to understand that contract is where we’re playing ball today.

And therefore we have to negotiate effectively and play hardball in order to get the best terms we can because of those uses of digital materials probably will not be covered under the exceptions of limitations and copyright.

Sara: So where do you see opportunities? I mean, there is a really amazing law in Singapore, for instance, that says that you cannot contract away your copyright exceptions and limitations. Could we get that in the United States at least for libraries and archives?

Jim: Well, that was our hope. About 2 years ago I convened a meeting in Washington at the ALA Washington Office, and this was the subject of our discussion is what is achievable. What are the domestic—t hat is national—opportunities and limitations, and what is happening internationally.

And we had a representative there from the international federation of library associations who updated us on the Singapore Bill and the work that was going on in other countries around the world.

It’s very difficult. This was an issue that came up under 108. We tried to get a provision that said a contract could never undermine copyright.

We could not give away the exceptions. of limitations under copyright and the publishers and the other members of the contact community wouldn’t even talk about it. And so, therefore it’s going to be not only a process challenge but it’s going to be a very difficult political challenge, because, many of the leading legislators in Washington one don’t understand the issue and two very often get financial support from the large media and publisher companies.

So it’s it’s gonna be a tough battle.

Sara: Just to point out a counterpoint to that I would point to the fact that with physical books we’ve been successfully using interlibrary Loan for years and years and we have not depleted the publishing market, and I understand the concern of publishers there, right, saying,wWell, now, interlibrary loan is baked into every contract. Fair use would be baked in if you’re a really good negotiator. You should have in regardless. That gets to the social justice issue you mentioned earlier. But if everyone had it by default through libraries and archives in my opinion, publishers would still be making profits, and the reason is that inter library loan can never substitute for a subscription to an item right, and we do keep track, and we have to by law keep track of our inter library loan agreements and our lending and pay licensing fees.

When we have hit a certain mark where, if we had otherwise just purchased the item we would not be able to loan it. So we could have similar things right in place for digital objects that we do for physical objects. And maybe this all could still operate with everyone on a fair level.

I think the issue for me personally is that we like libraries are really not a fair level right, especially public libraries, where you have the demand of the public, and you’re trying to serve your population who pays the taxes that puts the books in their hands right? And they have this expectation that not only are physical books available, e-books are going to be available, and with the pandemic and mobility issues, we have more and more instances where folks cannot come into the library in person, and we really should be providing those e-books to our communities.

And so I I think we’re at a real disadvantage.

And this is where we’re gonna need some strong advocacy right?

And I think this is where you, Jim, have been so much at the forefront here, creating the ALA Policy Corps for that purpose.

So I wanted to kind of switch gears and talk about you know why.

Why did you create the ALA Policy Corps? What are the goals of that group?

Jim:  Let me let me make one other statement about digital lending? We I think, from a published perspective it’s a slippery slope, I think, by having to negotiate those terms in a contract it does give publishers some leverage in terms of a price. So I think I think, there’s a real interest in preserving that control within the publisher community. We saw we had some recent experience with that under control digital lending where we have tried to build some responsible approaches to digital lending interlock very loan and tried to extend that under the impact of Covid and have to hold back already. if you will post Covid. But we have seen the library community through the Internet Archive end up in court of that issue. So I think libraries and universities and communities are fearful of litigation. And are going to probably take a more conservative approach.

Not go out there and fight the battle, which I think has to happen and big basically give in to the publishers on this.

But I think court cases hopefully will come along that might help us in this area.

Policy Corps.

As I mentioned, I started my work, and national information policy in the in the area of government information.

 

In the mid 1990s several universities, including the one where I was, Penn State, was experiencing FBI increase about materials being requested by international students who were studying at our universities.

This was my introduction to issues around privacy. And then, after 911 of the U.S.A. Patriot Act introduce a set of controls interventions by legal authorities that, we’re severely problematic and difficult for libraries, and I became very active on that issue.

Advising libraries, giving workshops, going public, with my opposition, and at that same time I became very involved in the work of the freedom to read Foundation, where I’ve sort of served on that board for many years and have become involved in national intellectual freedom debates.

And so all of this experience, including my work, with copyright demonstrated to me how important it is for the library community to have authoritative expert voices at the table. And historically we’ve had a few individuals who have been willing to keep up on a particular policy issue, who have been willing to get at the table and fight the battle by testifying before committees at the state the national level developing, op-ed pieces, editorial pieces for publication in the press sitting down with partners to develop political strategies, and any of those individuals have been retiring over the last decade, and so I felt we really need to develop an ongoing cohort of individuals are truly committed to working on behalf of the library communities developing information policy areas. And so we agreed to begin it on an experimental basis, and we recruited, I think, 12 individuals that first year on a competitive basis, and they’ve been working over the last 3 to 4 years developing their knowledge of their policy interest area. But more importantly, developing the skills and understanding to be an effective advocate. And we have now have 4 more cohorts of Policy Corps people.

Next year we’ll be looking at how we proceed with the fifth cohort. Covid was a challenging time for us with the policy corps because of the inability to bring people together. we’re now beginning to do that again. and so I’m hopeful that we can continue to develop a very strong representation for library leaders in the information policy area.

The other thing we worked on in parallel was what I call the National Advocacy Network, to try to get a representative, at least one representative for the library community in each of the 435 Congressional districts.

So when something came up in Washington, where we really needed advocacy at the local level, so convince our members of Congress Representatives and our Senators that they needed to support our interests in these debates, we would have be on the ground if you will grassroots capacity to influence their thinking. so I’m hoping that over time, and as we break out from Covid, the combination of the policy core and the national advocacy network will provide benefits to the library community it’s wonderful program, and I think we’ve seen quite a bit of movement there.

Sara:    Can you talk about some of the successes we’ve had through the Policy Corps? I’m a member of the third cohort and I’ve done quite a few webinars and published updates about the CASE Act. What are some of the other things that we’ve seen come out of the policy core?

Jim:     Well, I think many of the members of the policy core have been very active, educating their colleagues at the local and national level, either through, as you said, webinars, writing for the field, and so forth. But as importantly, if not more importantly, some of the policy corps members have been very active with their with their local Congress people.

Their representatives and their senators that’s very important. A few have been going to Washington to meet with various groups and committees to try to influence funding and influence legislation that we care about. Several of them very active in writing op-ed pieces for their local newspapers. Several have been testified at the State level before State legislatures.

Another area that we have seen a real challenge over the last several years, and I think it’s gonna get very difficult going forward is the whole area around banning books in libraries.

It’s perhaps most active in schools, but also is now beginning to play out in public libraries. And I think that’s been another area where the policy corps has been very active and trying to influence understanding and to have impact on some of these really egregious actions on the part of local politicians. So overall I think the policy corps has been successful. We’ve developed our skills. And now that has to translate into real action at the State and Federal level.

Sara:    Yeah, it’s a great point. We really have to do more than talk about things. We have to take some action and meet with our representatives. What advice do you have for folks listening to this podcast maybe they’re not members of the ALA Policy Corps but they want to take action as well, what could they do?

Jim:     Well, I think it’s very important to become aware of, and to understand the information policy issues that we’re dealing with and the ALA office. That website is a great source of information there are lots of webinars. There’s this podcast. There are great sources of information to educate oneself. There’s literature, books, and articles that’s half the story.

The other half is being confident. Knowing what type of actions have impact. How do you influence people’s understanding and actions and that’s very important.

I think, at state level of ALA—the American Library Association—and the library community in general is really strengthened by State chapters.

There are, I think, 56 regional chapters. Most of them state-based that provide lots of legislative training. Lots of policy updating, and I think that’s a great place for people to begin that work to get involved at the State level to join their committees on legislation to go to their State legislative days and hopefully in the future to go to the national legislative days.

But to keep, continue to be educated and open to training, which I think is critical to success.

Sara: I agree, and also not to feel that some of these calls for action are not for you. The ALA is often saying, you know, respond to this.

Talk to your legislators about this issue, and sometimes people think well someone else will do it right.

But getting on the phone, and you know calling up your local congressperson’s office, and and saying, you know I work at this library. And this matters to me because of this those kinds of those kinds of outreach efforts do make a difference, and the more you do it the more they’re going to be familiar with who you are, and you’re gonna create those relationships.

So, not being afraid to pick up the phone, write an email message.

 

Write a handwritten letter, you know, whatever the whatever it may be, or sign a petition.

Jim:     All of those things can really help and add up yeah there’s a couple other things that I really think it’s important to do. I think each library should know who the staff people are, in these Congressional offices, both the staff person in Washington and the Staff office at the local level.

Know those people. They’re the ones who influence the actions of their of their Senators at their representatives. So, get to know the staff.  Secondly, invite the Congressperson to the library.

Get them there have an event where they can be visible.

They can be seen in a very favorable light by the voters in that community, and they can begin to identify with you library.

That’s really, really critical and I think those are those are steps that most libraries can take pretty easily, and I  would encourage all libraries to leverage staff to do that.

Sara:    Those are great points. And actually the point about staff is so crucial. When I went to the ALA day on the hill, we were speaking with a Congressperson’s staff member. And one thing we learned when speaking with this delightful young woman was that she worked in a library in college, and immediately it changed the tone of the conversation because she had firsthand knowledge of how important libraries are, how much we do for our community, and what a wonderful place it is to work right. And so she didn’t take much convincing when we’re asking for this funding. It’s so important to kind of get those stories from people because most folks have connections to libraries.

It’s not a hard sell when you ask them you know what’s, your experience with libraries, because they either went to a local library. I can’t tell you, how many times, I take my daughter to the library, and we come home with bushels of books because she’s such an avid reader, but as a mom that is an important thing for me and so people have those connections either through, you know, working in a library, going to the library, their university library, all of those different things.

So getting to know those making those personal connections is so important.

Jim:     Yes, we’ve talked a lot about policy, issues, but when it really comes down to it. the overriding of legislative matter that most libraries deal with both at the local and State and Federal level is funding And so, having a good understanding of what finding bills are being considered.

What the history has been of your representatives support for library funding.

Have success stories available. How has you Library made a difference in the quality of research in the University? The quality of education in the school people be able to get jobs in the by working with the public library. All those examples and success stories can be very, very influential, because most Representatives and senators care about the economy.

And the degree to which people help, at which the library helps people find jobs helps people connect I think, can be really really powerful. so never, never forget success stories, particularly as it impacts funding debates.

Sara:    Great point. And I really have enjoyed this conversation with you today. I hope the listeners have enjoyed it well, and we really encourage you to check out the ALA Policy Information and  information about the Policy Corps if you’re interested and want to get involved. We are always happy to chat about that some more.

But thanks so much for joining me today, Jim it’s been a very fun conversation.

Jim:     Thanks, Sarah. It’s been a great opportunity to talk about things alright see you next time

For more information about the Standing Committee on Copyrights and Related Rights, see this SCCR website

Sara:     Welcome to another episode of copyright chat. Today I have Winston Tabb joining me from Johns Hopkins University he’s the University Librarian and a longtime expert adviser to the copyright and other legal matters committee to the IFLA organization. Welcome.

Winston: Thank you.

Sara: It’s so nice to see you and to see you on the verge I understand of your retirement?

Winston: Yes. I think it’s going to happen sometime. I just don’t know exactly when because I had agreed to stay until my successor was in place. So the process is moving along. I heard a rumor the day will come soon.

Sara:     Well, congratulations! And I know throughout your career you’ve had a lot of interest and expertise with international copyright issues, both with the copyright and other legal matters committee and with the World Intellectual Property Organization. And I wanted to take this opportunity to kind of pick your brain about that process of how we the United States and IFLA engage with the World Intellectual Property Organization. From what I’ve heard, it seems to move pretty slowly and it’s a very political process. But, correct me if I’m wrong.

Winston: Well, I think one of the first things to understand is what an unusual organization the World Intellectual Property Organization is. Within a particular subgroup, the Standing Committee on Copyright and Related Rights, which is the one with which we engage, I don’t remember how many branches there are at WIPO, but that’s the most important one for us. What I couldn’t believe when I went to my first meeting and it still amazes me is that you can have an organization with, I think, 185 of so member-states and WIPO functions entirely by consensus. That is, there is never a vote taken in the sense that you would have your normal body where 51% of the people would be able to prevail if they can do that. So any one country, whether it’s Russia or Ukraine, the largest or smallest country, can really bring things to a halt. And that’s why it is so frustrating sometimes because the progress is so glacial. On the other hand, when you do have a victory in an environment like this, it’s really a major one. So the most important thing that has happened, I believe that the 20 or so years that I’ve been engaged there is the adoption of the Marrakesh Treaty and it almost didn’t happen and took quite a long time several false starts and starting over. But part of the reason that happens in actual fact is because of the necessity for having consensus.

Sara: Yeah, that’s a really good point. I mean, I think most people in the world, or I guess maybe not most, but many are aware of that treaty. And it seemed like a pretty smooth process from the outside. But can you give us an insider’s view a little bit of how long this was pending and what happened with the treaty?

Winston: Well, as I said, there were several false starts. So, I went to WIPO for the first time in 2003, which is the time when I was appointed to be the chair of IFLA’s copyright committee. Of course, I was just amazed at how things worked and how they didn’t. My very first meeting that I went to was of the cultural administration group. I think you’re gonna be working with them, if I understand right. So, we’re working on some kind of instrument that would deal with cultures and I was so fascinated to see, but sitting at the table were people from various minority groups. The Sami from the North and the Maori from New Zealand were actually part of the official groups. And it was a very substantive discussion. So I was expecting it to be like that when I went to other meetings such as to the meetings of the standing committee on copyright, but it was definitely not the case. The Standing Committee on Copyright it members of federal agencies only. The United States usually has people there led always by the Patent and Trademark Office because they are the executive branch, but also generally at least one person from the US Copyright Office. But I was really kind of amazed when we first started working on what came to be the Marrakesh Treaty to find that there had been a lot of efforts in the early 1990s to have such a treaty and they finally just completely collapsed. So, this was like a second start. And you never know exactly why something works the second time around. I don’t think it was just because we all had t-shirts which we probably wore saying “stop the book famine.” But I think that really helped as a way of kind of characterizing what it would feel like to be blind, able to have access to books it was a book famine. That word famine really just captured people’s attention. Nevertheless, it did take at least six or seven years. I can’t even remember quite how long it went. At first everyone was kinda just nice about it. And then there’s the publishing industry that began to realize this might actually happen. They began to be very, very oppositional—really oppose almost every aspect and were able quite often to get other national entities to agree with them. Probably the most negative force against this treaty and the one that I believe was most susceptible to the publishers was the European Union. So this is another thing that is very unusual about the SCCR, which is that when we’re in session, it is possible for someone from Luxembourg to speak or from France in their national capacity. But really the authority speaking comes from the European Union representatives. Of course, in a way it represented  the bureaucrats who speak for that entire group. And the EU was just not willing to have any part of this until this moment that I will never forget in Marrakesh. We finally met and the negotiations were going on. But the EU was not moving. And I saw the then Director General do something that I never saw before or after which was essentially to call out the EU in the public session and basically say you are continuing the book famine. If we can’t make some progress here after we’ve gathered, and made so much progress and get to the finish line, it’s going to be on you. And you can just feel the moment when the publishers and their representatives to the EU understood that they were getting ready to come under a very black cloud, so to speak. So it was really one of those wonderful turning moments right in the middle of that week. And then things fairly quickly came to a close, but it was at least a 20 maybe even a 25-year process. So I try to think about what I think our first Copyright Treaty for libraries was only introduced in 2005 or 2006 I think we first began to shop it around. So if you’re taking a long view and compare it to what happened with the blind, where we’re doing okay. We have to take solace.

Sara:  So it’s interesting because you are pointing out that the only folks that really have a voice at these treaty discussions are official representatives. So how are the publishers then getting their voices heard? Is this through independent meetings? Do they come to the meeting as an observer? How are they involved?

Winston: Yes. Well, they’re involved in exactly the same way we are. So one thing I will say about the standing committee on copyright or related rights is very open to NGOs that wanted to come. Usually the very first agenda item after adoption of the agenda is the addition of new members. And so we’ve never had a problem about that. So we’re often actually seat them side-by-side with the publishers that are all as usual people from the licensing agencies. I’m sorry. It’s been so long since I was actually there. But we’re all sitting there together, representatives from all the NGOs with our label in front of us. Almost always, member states are invited to speak first, and then if there’s time, then we will be invited to speak. And I will say, I think we’ve been treated very fairly. When I put my light on saying I want to speak, I’m almost always the first or one of the very first people who is invited to make what we call an intervention.

Sara:  Okay, so. they’re there talking with the EU. They’re also participating in the group discussions. That makes perfect sense. So, after Marrakesh, where do you see the SCCR headed? What is the next kind of issue that’s on the horizon?

Winston: Well, the very biggest issue that’s on the horizon and the longest there is a broadcasting treaty. So there are basically right now two major issues before the SCCR. There are a few others that are kinda crept in, like the Russians wanting to have theater stage directors rights. But the two topics that are given, roughly four out of the five days, more or less evenly divided are the treaty on broadcasting and then the treaty for libraries, archives, and museums. That one has been under discussion. It was under discussion the first time I went, and it is still under discussion. Glacial progress is made. Then one of the things I need to be clear about another oddity or feature of the SCCR is that regime change really matters. So you can be moving along very nicely and suddenly a country’s regime changes. This happened to us very explicitly with Brazil. We had two very, very strong supporters from the Brazilian copyright office working with us very closely who were advocating for us, and would often introduce articles or motions that were in our favor. And one day we were there and they had this panic came across their faces. We found out the regime had changed. They had been summoned home. And the next people who came from Brazil had no interest in library. So that’s a whole other reason that it takes so long to get things done because you develop relations and then those people vanish. Another problem is that people who are there usually, not for the United States, for example, who really do come from our federal agencies, but most of the people representing countries there are the ambassador of that country to the United Nations in Geneva. And so they don’t have any copyright expertise. There may be meetings that are going on across town, one of the other United Nations agencies, so they may have to divide their time. And of course, as is true with diplomats, they usually have a two or three-year posting. So it’s been a constant reeducating for the people who are actually representing the countries and have the vote. So that’s another factor that complicates what actually makes speed and possible. We’re in the constant educational mode, which is enjoyable from one of view, because you are training people. But it’s really sad when you see someone who’s really been a strong, fervent supporter from one of the country’s depart. And you know, you may not get a good replacement. And you have to start all over again.

Sara: It’s curious to me that the strong supporter doesn’t then talk to their replacement. Because it seems to me that the education could be within the organization instead of from the other participants. Does that ever happen or is that pretty rare?

Winston: It does happen and I  could name examples. I won’t necessarily here, but there are countries where that has definitely happened. But again, these people are diplomats who aren’t necessarily in copyright. They may have much more concerned about human rights, which is across the street, or international trade, which is down the road. So they don’t necessarily think that this is even an important topic as compared to others that they would really highlight as putting up the top of the list for their successor.

Sara: Well, that makes sense, but it’s also seems like it’s unfortunate for those folks who are invested. And when you’re talking about libraries and archives, are you talking about the ongoing discussions about how we have, for instance, in the United States, exceptions for libraries and archives for preservation is that they issue because I understand Kenny Crews wrote a report years ago for WIPO, kind of outlining the world and how different countries have different laws on this topic.

Winston: Yeah. Well, I would say there are three major things that have been wonderful for libraries during the time that I have been working at SCCR. The first one I already talked about was Marrakech. From beginning we’re able to see the end of that. The second was that we were invited by the WIPO secretariat in 2003 or 2004, fairly early on in the time that I became engaged, we told them one of the things that was really, really difficult for all of us to know, actually, what were the conditions at all the member states. And WIPO is quite eager and willing to fund nonpartisan kind of activities. And so they asked us to suggest three or four people who might be able to undertake such a study. We put Kenny at the top of our list. I think at the time he was still a Columbia as the copyright librarian. He was engaged to undertake this work, but he did, and it was published. And he was invited to come and do a presentation for, I think a half-day and take questions from the member states about it. So it was the very first time I think there was ever one central place where you could go to see, well how many countries actually have an interlibrary loan provision. About a decade later, WIPO asked Kenny, if he would update that study, which he did. And it’s on the SCCR website and has become very, very useful for all of us and providing data that we can actually use, both in our oral presentations that we make, but also in our meetings with the various regional groups. So if I could take another kind of a side note, one of the things I didn’t mention, that’s also an interesting factor of how we work as a group. Each region has a group, there’s an African group, there’s a Latin American, Caribbean group, and so on. There is also what’s called group B. Which is really the European Union, Canada, the United States. So it’s going to be the more developed countries or in a group. And then there’s a small subset of the countries of the former Soviet Union and China as its own group, but indicates what we often do both before we get to Geneva, but also while we are there is to arrange meetings with these groups. So quite often at seven o’clock, on a Wednesday morning, we’re going in and sitting down with all the representatives from the African countries and talking with them about not only what we want in general, but about what the situation is in those countries. And we’ve tried with some success to always have a librarian from one of those countries with us because people really prefer to hear someone from Algeria talking about what Africa needs more than they do about someone for the United States. So that’s been a wonderful way of making inroads. But again, all of those groups have a one-year term for the chair. So you may have a year when you’ve got someone from Algeria who loves libraries. The next year? You may get someone from Togo, has no interest at all and doesn’t even want to have the library group come and talk to them necessarily. So that’s another thing that this constantly changing in interactions with people, because the people changed and then the roles change as well. But anyway, the whole study that was done by Kenny. I think that was one of the most useful things the SCCR has done, and that was our recommendation, but at their expense with something that is still very, very proud of.

Sara: You mentioned also there’s turnover of the Secretary General. And you also mentioned how instrumental the secretary at was in getting the Marrakesh Treaty past. Does it depend a lot on who that person is?

Winston: Yes, it definitely does. And I think what happened with the Marrakesh treaty is that there’s a 10-year term of the Director-General and that person’s term was coming toward the end. And it’s very unusual for that person to be reappointed. So he knew he’s going home to Australia. And I think that really made it maybe easier from a practical sense to really press as he did. The good news for us is that we had as the most, the former chair of the standing committee on copyright, the copyright office of Singapore works. And when it came time to choose a new Director General, he was chosen out of several different applicants. So we now have at the top level, within the World Intellectual Property Organization, someone who is himself a copyright specialist, has direct experience of having lead the SCCR for a five-year term. He has continued to be very, very supportive of us.

Sara: And what year is he now and his tenure term?

Winston: I think it may be so hard to remember anything during COVID. I think it’s the fourth year or maybe the fifth, something, something like that, but maybe four years. I think. He also has been very instrumental in helping us get one thing done. The last big thing that I’m really particularly proud of because it is tangible, and that is the preparation is something called the preservation toolkit. So during COVID when meetings weren’t being held but there was still hoping there can be some progress. I did reach out to the director general as well as to the Assistant Secretary General who’s working in the copyright arena to see if there wasn’t something we can do in the preservation. Because that seemed to be something that everyone understood was a problem. But not every country you really has the authority to do copying even for preservation purposes. So what eventually happened was that they said, well, why don’t we prepare a toolkit? And that term is extremely important because within the odd way in which WIPO works, a toolkit, didn’t require the approval of all the member states. It didn’t have to be discussed with the member states, doesn’t have to be adopted by the member states. It’s a tool that countries may use or not use. So that’s why it was able to proceed. Something’s better than nothing. I think in this environment. And I’m especially happy we did it because of some of the things that have happened in the course of the preparation of it. Things like the war, Ukraine, things like floods, things like fires, and the National Library of South Africa and the museum and Rio has really made it very clear that if you don’t do some preemptive preservation, it’s too late and it needs to be cross-border If it’s truly gonna be preservation. So the secretary did commission representatives from each of our sectors, libraries, archives, and museum, to prepare this toolkit that has been prepared. And it is going to be presented on-site reading in Geneva at the very end of this month. I’m so sad I’m not able to go to this effect because it exactly coincides with my retirement dinner. So I really didn’t have much of a choice about it, but by the end of September, this will have been released, introduced and then we, as librarians at our friends at the archives and museum world, can begin promoting it and using it. We hope that will at least be able to get preservation provisions in national law as well as kind of moving us, we hope toward international instrument at some point that really deals with the cross-border issues.

Sara: That sounds like really important work, especially given as you mentioned, all the disasters we’ve been having. And we’re going to have more with natural disasters and fires. And I mean, you name it right. Hurricanes. I think climate change is really threatening our collections and our collective memory institutions.

Winston: We keep making the point that after the things are gone, they kept the preserved. It seems so obvious, but this need that you don’t have to even prove at this point that something is deteriorating. You just need to be able to get copies of it somewhere that are safe. And that requires that it be at a different location. Maybe ideally multiple locations, even if it’s just about to find out at some point, how many is enough? One thing I didn’t really mention at the beginning, I should have, because it’s a really important part of our collaboration. When we first began, it was libraries. And we actually drafted something we called TLAB the Treaty for Libraries Archives and Museums. And I was really happy working with archives and museums over time that we were able to get them engaged with us as well. So we now have a draft treaty called TLAB treaty for libraries, archives, and museums. And the three entities work very, very closely as we saw with the development of the presentation toolkit. But there was one representatives from each of the sectors that were very much involved in preparation of that. So that’s a great step forward as well. I think that thinking about how libraries, archives, and museums are much more alike than they are different and we worked together, not separately or against one another.

Sara: Yeah. And I think your point about the many copies is really important because it’s not only that you’ve made the copy which is important, that’s a first step. But then if that copy is held on-site and the site is destroyed, you still don’t have the copy. So, the cross-border issue really seems central. And I hope that we’re able to make some progress on that, too.

Winston: I think that it’s a fairly, fairly easy within SCCR contexts, it’s kinda crazy to say, but I can imagine getting instrument that provides for the preservation. I think the hardest part is going to be about the access part. One of the things we keep saying there needs to be able to be access. You can’t just have something that was copied in Algeria and it’s being housed in the library in Paris, but can never be open. So, at some point, there has to be reasonable trigger event that would enable the preserve work to actually used. And there are people who still are arguing, yes, but when that happens, there needs to be a fee. And that’s it, kinda battle that we’ll have to find with the people who want to monetize everything, but at least it’s a step in the right direction. And even if we could get, each country has its own preservation provision, that would be a step forward in the right direction too. I think we forget in the United States how it was lucky we really are never entirely satisfied or will we ever be? But when I think about provisions that we have an compared to a lot of our counterparts, including the European Union, we actually are much better off with mitigate them. I think that’s true and I think it’s part of the reason that this work at, at the international level is so important is to really show that these provisions are important and that these provisions help libraries, archives, museums, and our patrons right to gain access to materials. I think that’s something that the United States can really lead on. Well, we keep just saying our information is borderless. I mean, this whole idea that goes back to an era when a book was one place and then it might be the next. Just like that now and I think again with the passage of time and seeing how the Internet has developed and so on. People knowing their hearts, if that really is true, they may not want to get that embedded in a way that is really useful at the national or international level. But there’s no denying that we have to be thinking about things not at national level, international level, because of the way in which information is created and shared and stored today.

Sara: Very true. Well, this has been a really fascinating conversation. I’ve learned a lot and I hope the listeners appreciate it too. And congratulations on your well-earned retirement. It sounds like you are going to continue to do wonderful things. I look forward to many, many more years of your engagement with international copyright.

Winston: Thank you so much. I’ve really enjoyed it, bye.

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 short because that’s what I usually call you and Tim and I had met each other previous to becoming members of the policy core through copyright circles.
I know Tim works at University of California Berkeley, with Rachel Sandberg and Tim, why don’t you tell us a little bit about what you do there and and your previous work history.

Tim: Yeah, sure thing. well I’m the scholarly communication and copyright librarian at UC Berkeley, and we have an office that helps scholars, understand, copyright law, the publishing process.
We also deal a lot with various intellectual property and information policy issues that come up in, you know, teaching and research and an academic writing.
So, we intersect a lot with copyright challenges copyright concerns that researchers have probably some of the same things that you experience working at a large academic institution.
But before I was here at Berkeley.
I also worked for Creative Commons for several years. And I’m sure a lot of your listeners are somewhat familiar with Creative Commons. This is a nonprofit organization that provides free copyright licenses for sharing all types of creative works, and
the licenses really help provide increase sharing on more open terms, then you know the default. all rights reserved. Copyright regime.
And I’ve also worked actually with the American Library Association, a long time ago, I was a Technology Policy Analyst at the ALA Washington office. And there we did a lot of research, and also policy advocacy on technology and other legal issues that
are relevant to libraries. So thinking about things like intellectual property and copyright issues.
Broadband policy, and also like organizing and educating alien members on copyright issues that come up in our library work. And then as you mentioned, I’ve been a part of the a la policy core, and we’re part of this.
The third year the third cohort.

Sara: Well, it sounds like you’ve had a variety of interactions with the library community over the years and also the copyright community so it seems like a perfect fit for your current position, and obviously we were both drawn to the ALA policy core.
And I personally was really interested in doing more advocacy with the United States Copyright Office, and just getting to know how to make an impact on policy nationwide because, of course, so much of what we do as librarians, is to try to get access
to information for our patrons and copyright is one of those ways right that we try to get access is, people think of it, a lot of times as a barrier, but I think of it as kind of one of those ways of means of access right through a lot of different ways
sex, you know copyright exception section one await of the Copyright Act and fair use and things of that nature.
But I wonder what drew you into deciding to join the policy core.

Tim: Yeah, some of the same reasons for you. I think there’s oftentimes like a public conception that copyright is like a bad or like a negative thing, but in my work, you know, working with the LA Creative Commons and now working in a library.
I think our role is really to educate and push on our users to exercise their copyrights and then flex their copyright muscles because because oftentimes, there are like you say limitations and exceptions such as fair use, and we need and are able to
take advantage of these.
And it’s an important thing that we can work on together with regard to the alien policy core.
I’ve really wanted to learn how to become a better advocates around a lot of different library issues especially some of the issues that we deal with on a day to day basis, you know, working in academic libraries.
So, looking into ways that we can help push for improvements and updates to copyright law. I’m looking at digitization issues. Access to research issues, open access publishing those types of things.
But I also wanted to get the more sort of plugged into policy issues, and other advocacy work for different types of libraries which I don’t have that much experience with.
I did start out working in a public library and also worked at the Wisconsin State Law Library and those are really interesting jobs as well but I kind of wanted to know how to advocate better for for other types of libraries as well and see how we can
contribute to those space spaces.
Um, so as a policy core has really provided a kind of a broad overview on how to do that and it also incorporate many different types of librarians and library workers so of course you and I are working in college and research libraries, but there’s a
a broad spectrum of other people so we have school librarians and people who are working in public libraries.
And people are working in community libraries, those types of things. So I think the policy core has really given me and this is sort of what I wanted out of it, a better understanding of not only the issues, the policy issue that those libraries sort
of encounter, but how we can work together to advocate for better outcomes. Better funding better public policy outcomes for all types of libraries.

Sara: That’s a really great point and I often when I teach about copyright at the high school at the University of Illinois. A lot of my students are surprised when they realize just how much copyright will impact their work right as, for instance, a school
librarian or a public library and I mean copyright is kind of one of those all inclusive topics and so it has really given, both of us I think an opportunity to grow our network and to kind of understand what the different areas are that different people
are struggling with through the pandemic there’s been a lot of funding issues, there’s been a lot of broadband issues.
And it’s been really interesting to kind of learn what people are handling right now and and and it seems like right now there’s also a lot of fights ago about freedom of information and right you know different books that are on the shelves that maybe
parents don’t want to see on the shelves in a children’s library or a school library so there been so many different issues that we’ve been hearing about which has been really interesting.

Tim: Yeah, you’re totally right like issues around intellectual freedom around broadband access for libraries, these are ones obviously that maybe you and I don’t deal with on a day to day basis but it’s important to be able to advocate for them, and with
them for other library workers and other libraries as well.

Sara: Yeah. And so we have the opportunity.
Not too long ago to go to Washington DC and to have a face to face meeting with our cohort of course our cohort began in the middle of Kovats so normally we would have done that much earlier but I thought that was one of the most useful parts of our training
because we learned some really fascinating.
Media techniques right and we’re kind of putting the hot seat with, you know, pretend that you’re doing like a video interview right now and what what is this going to look like.
I found that really challenging but also really interesting and helpful in terms of training and I’ve had some similar training here at University of Illinois but I felt like this was even more targeted because the folks doing the training or media specialist.
What did you find to be a kind of the most rewarding part of your training as part of the policy core.

Tim: Yeah, um, I will say that media training was a little bit outside of my comfort zone, I guess, but I really appreciate that we were able to do it, especially in the context of understanding how to best communicate a message with the decision maker or
a member of Congress, or with the media because crafting a clear, concise, usually short message about a policy topic that you’re advocating for is really crucial.
You know, one thing I was actually involved with last year as a part of the policy Corps was doing a virtual Hill meeting with a staffer
on on library funding issue so we were advocating for an increase in a library funding.
And, you know, one thing that was really interesting and important to know about in this meeting was really short, it was like a 10 minutes, like zoom meeting with a staffer and something that we talked about going into the meeting as we were as we were
kind of building up. What we wanted to talk about and how we wanted to deliver it it was like the understanding that a lot of these staffers.
They cover, you know, 10 issues or more.
And maybe library is just one of them, or maybe they only deal with library issues in their capacity as someone who’s involved in education. So, sort of understanding that we need to craft a very sort of deliberate and concise message about the policy
ass, or the policy issue that we’re talking about, is really important so that was one of the most interesting pieces from like the media training that I sort of took took took away from it, but also lots of other great sort of tips around how to, how
to host like events, how to get your message out in a variety of different forms so obviously it’s not all just meeting with legislators, it’s about creating campaigns and doing social media and thinking about sort of online messaging.
And I know we do a lot of that sort of in our work as well.
And then, you know, kind of talking a little bit more broadly with regards to the policy core and maybe some of our issues. There are a lot of different ways that we can we can advocate, you know, one of them is talking with policymakers and entering into
conversations and relationships with staffers that deal with intellectual property and library issues. But another thing that you mentioned earlier is dealing with institutions like the corporate office, because a lot of, not necessarily policymaking,
but a lot of public input and advocacy actually runs through groups like the copyright office. So looking at the various sort of ways and venues for advocacy around library and copyright issues, is something that’s been good for me it’s particularly with
regard to the policy car, and I think it’s been good for other people as well, just to kind of understand where are the leavers that we can pull and push to get better outcomes for my library policies.

Sara: Yeah. and when you were mentioning the day on the hill I participated in that as well the virtual one and it was really tempting when meeting with a staffer to just jump right into like.
Here are the 5 million things that our library has done for you, you know, and here are the things that we need for the community and to continue doing this.
But Shawnda Hines from a la policy was in my meeting one of my meetings and instead of law, allowing us to kind of launch in she, she started with a question, and she said to the staffer.
What is your experience in libraries, do you have a library card, and it was amazing because the response to the staffer was, oh I worked in a library all through college.
So not only, you know, almost, almost everyone I won’t say everyone but almost everyone has been to their library right so they have some experience, but this woman had more than the average amount of experience when she had been in the library, every
single day working behind the scenes and really knew the struggles of the library and was a real, true library supporter and so after that, after that knowledge, it was so easy to have that conversation because she was she said right off the bat I worked
in. I worked in the library all through college and I really love libraries and I really support them. And it’s like okay so you’re on our side like you know, you don’t have to do this hard sell here, you know, and it’s still important to like make your
points but it was really key to make that emotional connection with her because I think that if you just forget about that, then you don’t hear what their personal story is their personal connection, you might miss that golden opportunity right because
if you’re if you’re looking for funding for a specific thing maybe they have experienced with that thing right I mean, right now, the issue is broadband for a lot of libraries right because students from school, potentially don’t have internet.
Well, guess what, what if the staffer you’re talking to grew up in a rural area. What if they had no internet at their house like they would have a personal connection to what you’re talking about and you would never know that.
And so you really want to make that connection if you can. And I think, you know, one of the things that I learned also during that time Shonda spoke with us at the policy core training and said, You know, there’s a fine line between, you know, people
kind of treating libraries as, like, Oh, that’s so cute. You’re the library, you know, versus like you’re a serious part of our society right so you don’t you don’t want to make it like, oh, didn’t you go to story time when you were five, you know it’s
not a library story but like to understand that we that librarians and libraries really have an impact on our society, and that we need to fund them because if we don’t students can’t necessarily go to school or students aren’t going to learn or, or,
you know, if you don’t have that access.
You may not learn about science, or some other area that that you know you could have a future doctor who really doesn’t have access to these types of books at their school and comes to the library and read about it, or who knows what the experience might
be right. I know I read about a, an astronaut who grew up, and he was just tied to his local library right and always reading about like outer space and just had this big dream and became an astronaut one day I mean, these are the kinds of things that
libraries can do.
And, but trying to really make, make it real for somebody and I think so starting with that human element. To me, that was a really great lesson not to just launch into the logic, because we all just want to start with like here’s why we need this money,
you know, right, right.
But if we can connect with them on a human level like on a personal level, it’s going to make it a lot easier.

Tim: Yeah. Right on. Another thing I was thinking about is, um, you’re right and asking those probing questions and trying to connect with policymakers on a personal and emotional level is really key, but also doing our homework as well so how did have how
have they voted in the past, around library issues.
What have they supported what have they been maybe not so great on sort of understanding their history a bit with with libraries and and pulling those things up and having that those data points on hand is really helpful going into these meetings with
decision makers. Another thing that we did, which I think is really important in any sort of advocacy meeting and ask is coming, prepared with local data and stories and impact.
So, you know, in the meeting with the legislative staffer for representative Lee in my district, I talked a little bit about how the Oakland Public Library, which is, you know, the city where I live in how they were making content available and services
available during the pandemic and pulling out two or three or four top things that they were working on, which could and should require more funding to continue.
So coming up with those local stories and hearing from people on the ground is really important. In addition to, you know, really communicating the importance of funding or improving policies for libraries more generally.

Sara: Yeah, that’s very true having those data points but also those stories of like real life scenarios.
During the pandemic despite my being a copyright librarian who never does circulation, I was actually working in circulation, because we were kind of all hands on deck.
I mean, we had a lot of folks who couldn’t come in at all due to, you know, underlying medical conditions or family members with underlying medical conditions like before we have the vaccine available.
And we really had a call to the whole library saying you know who can come in and help so I had, I learned how to do some circulation, you know, which was really good and and and it really gave me some sort of knowledge of, you know, on the ground, of
what my colleagues go through on a day to day basis but it also gave me that crucial contact with patrons because I was really missing that interaction.
And so, you know, the pandemic really gave us an opportunity to like change our skill set a little bit, and to also like get to know our other colleagues like I don’t normally work in circulation so I don’t necessarily know all my colleagues in circulation
and so I got the opportunity to kind of spend time with them and to learn our patrons a little bit more and see what they were you know what their needs were.
So I think that there are a lot of stories like that and the public libraries really were doing tremendous thing, you know, this is an academic library but the public libraries to we’re doing tremendous things during the pandemic right to keep to keep
everybody reading and keep everybody engaged because really like we couldn’t for for quite some time in Illinois we couldn’t leave our house. So, you know, if the students couldn’t get on the internet and if you couldn’t, you know, read books at your
house, then you really didn’t have a lot to do, and especially education wise. So I think those stories are really important, I think you’re right.
And I really valued getting to know you know some different levels of service and different people in the library too.
So, I guess one. I wanted to change the topic a little bit and talk about you know what we’ve done.
Copyright wise, since we’ve been a member of the policy core. And one of the big issues that still isn’t resolved, is the CASE opt out for libraries you want to tell us a little background about that and how we were engaged with that.

Tim: Sure, so maybe to back up a little bit. So, the CASE Act passed at the end of 2020 and C stands for the Copyright Alternative to Small Claims Enforcement Act.
And this was a law and the aims of the law was to provide an alternative venue for copyright holders to pursue smaller dollar copyright infringement cases, instead of filing a federal copyright law suit which costs a lot of money, typically, and can take
a really long time.
And so, the case act sets up this copyright claims board that sits within the corporate office.
And the point of this copyright claims board is to adjudicate these smaller copyright infringement proceedings.
And we should note that these proceedings are voluntary.
So if you have a claim brought against you. So if someone accuses you of infringing their copyright and wants to take you before the copyright claims bar, you don’t have to agree to go through that venue, you can opt out as an individual.
And that’s a really important feature of this law.
And this is a from a library perspective, we see it it says concerning law for variety of reasons.
So, one thing, thinking about copyright and how copyright interacts with libraries and with researchers.
We know that researchers and teachers, they leverage these limitations and exceptions to cart braid all the time like fair use. So, you know, researchers use images or copyrighted content within their own original research, because we all know that scholarship
builds on the works of others and there are important limitations to cooperate that allows faculty and researchers to be able to do this.
But sometimes that might not be communicated to rights holders, you know. So, what we see coming out of this case that would be possibly, you know rights holders brain these infringement actions against, you know, a scholarly researcher, because they
think the scholarly researcher improperly used a piece of copyrighted content when in fact, perhaps a scholarly researcher was including that content under one of their rights under copyright like fair use.
So, there’s a big concern that when this copyright claims bar actually gets up and running. Are we going to have a ton of claims being brought against researchers or even students for incorporating copyrighted content under fair use in their research
and teaching, and what are the implications of that going to be, you know, of course the limits on what the monetary damages within the case act and within this copyright claims or are some are a lot less than what they would be with a normal federal
copyright lawsuit, but they’re, they’re not nothing You know, there’s a cap of $30,000 per infringement proceeding and another that’s nothing to sneeze at.
So, one way that this CASE Act is concerning is that you know it might be, it might be a chilling effect for researchers they might think twice about incorporating others copywriting content into their scholarship, if they’re afraid that they’re going
to be brought before this copyright claims board for use that should be covered under fair use.
But another piece of that is concerning is during the implementation. So, the Copyright Office has been engaging in NPR, and then NPR m sound stands for a notice of proposed rulemaking.
And these are things where the corporate offices looking for feedback from the public on how a particular law should be implemented. So, the corporate office has issued several, several of these NPR around the case act, about how it should be implemented,
once it actually is up and running.
And one thing that was up concerned for library is it for libraries is that while libraries and archives institutions can preemptively opt out of this.
What it doesn’t extend to our library workers so workers like you and I, who are working within libraries and we deal with copyrighted content on a daily basis, you know, we provide information and guidance around digitization projects, we’re involved
with things like interlibrary loan, we deal with copyrighted works. So what the NPR and was asking for is.
We know that libraries and archives as institutions are opted out, but they held in their, in their first sort of draft of this. Well, we’re not going to provide that, that, that opt out for library workers, And we thought, and a lot of libraries are
on country thought that this could be a very negative way to pursue for the copyright claims board because us working with copyrighted content on a daily basis.
We provide education.
What we don’t want is library workers to be dragged before the copyright claims board for infringement claims for things that we know and we are operating in good faith, under our limitations and exceptions to copyright. So maybe you want to talk a little bit more about sort of the advocacy and how we organize around that aspect.

Sara: Yeah, so we saw the proposed rule come out and it basically said that even though, as you said, the library can opt out preemptively and basically just opt out once and say, You know where this library is not going to participate in these.
Small Claims Act cases.
They, the US Copyright Office, read the CASE Act as only applying to libraries and not to their employees and kind of did so under an agency, sort of analysis saying, well, this is, you know, the employees can still be liable, potentially, it’s just saying
that there’s no like vicarious liability here for their lawyer, and my reaction to that was that that doesn’t make any sense right just because the reality is that libraries do not do the work, the work on a daily basis of the libraries is done through
their employees, and therefore if you don’t want to hold libraries liable.
You shouldn’t hold their employees liable. It makes no sense to me right. It’s like basically don’t go after the deep pockets here at the Library, which doesn’t even have that big of pockets but go after the, you know, staff member who made the copy that
doesn’t make any sense. And I really don’t think that that’s what Congress intended. When they enacted the case act and so what we did was the LA policy core members Tim and myself and Carla and along with la kind of came up with this, this, this letter
that folks could use if they wanted to submit it to the copyright act in response to their proposed rule, and it was just a form letter but allowed folks to put in their individual, you know position their name and what they do that, that gives them concern.
So for instance, I said you know I’m a copyright librarian at the University of Illinois. And if you are going to enforce this against me in the scope of my employment, that’s a problem because I deal with copyright every day.
This is my job right I have to make you know various determinations for my own news I provide folks with information about copyright. And so, you know, I could get 10 of these notices every day, you’re going to get sued every day.
And so the reality is it would really stifle me from doing my job. And so a lot of folks responded in fact the Copyright Office still has not issued their final rule on this and said that they had thousands of these notices because one of the notices
from library futures had an Excel spreadsheet with thousands of responses and there were at least 135, I think, responses so they got a lot of feedback from librarians, basically saying this is not going to.
This is not a good thing. Right. I wanted, I still think the door is open. If Congress really feels that they the Copyright Office got it wrong to come through and say, No, you know, they I guess they could amend the case act and say, no, this really
means also employees.
I did reach out to Senator Durbin, from Illinois, saying hi Senator Durbin I know you supported the case act but you couldn’t have possibly meant that this doesn’t apply to library employees right and trying to put it on his radar because I know the final
rule isn’t out yet but if the final rule does still apply. If the Copyright Office says it does still apply to library employees within the scope of their employment.
Then I really think my next step is going to be to talk to Congress and say, Is this really what you meant because I don’t think so.
Well, I still hold out a little bit of hope that we made some progress with our arguments.
And our common sense to the copyright office but we haven’t heard back yet. So what do you think Tim.

Tim: Yeah, I think you touched on a lot of good points there, um, one thing. Well, first off, I mean I’m really glad that the corporate office has issued these NPR M’s because it does provide a public venue for citizens and organizations to provide feedback
and commentary on how our particular this particular law should be implemented. And that is important, and the Copyright Office, there are reading these you know so it’s great that we have this venue.
And you mentioned that there are a variety of different ways to respond.
Like so. Some of some organizations such as the library. Copyright Alliance.
Individual universities and libraries I know from the, from speaking from the University of California. We submitted a letter, which was signed on but I think almost all of the UC schools, talking about what the negative repercussions of including library
workers as subject to these proceedings would be, and we provide very detailed and specific examples, and also talked about the legal aspects of it, like you mentioned, have some discussion around this idea of agency law, so that you know if the library
itself is able to opt out, why isn’t the library able to delegate that opt out to those who are working for it.
So on the one hand, we have institutions and schools, writing detailed responses to the CRM. And also we have the public who are able to provide individual stories like you and others, and and also just anyone can can file a response to this NPR.
So it’s important to kind of like, hit it at multiple levels, because the corporate office is reading these. It’s good that we’ve provided detailed responses.
And it also good that we’re hearing from the public, and from those workers that it’s going to affect.
Another reason that this is really important is that you know the CASE Act has been around for a few years, but only at the end of 2020 and did it gets pushed through into becoming a law.
And the way it did that was attached to a gigantic piece of spending legislation. And this is very problematic because there’s not really any opportunity then to have some back and forth and to have feedback from the communities that it was going to affect
you kind of got pushed through at the last hour before the end of the year, along with a ton of other bills.
And there was not that much opportunity for libraries and library workers to comment that that point. So it’s good that we can use some of these NPR on processes to lay out the issues and lay out how we think they should be improved, especially for the
Ah, so we’re going to keep our eyes open for that final rule and see, see where that goes. I mean I would read a huge sigh of relief, if, if we were able to sway the copyright office, and if they do find that when a library ops out its employees are also
opting out. But if not, like I said, then, you know, I will still feel that there’s some, some advocacy work to be done with with Congress and to say, Hey, is this what you meant because you have the ultimate word of what you met on the other side of
that though.
You know there is still work going on behind the scenes to challenge the the court or the board claims board when it does start hearing cases as unconstitutional.
So there are a lot of things going on here and it’s, nothing’s going to get resolved, super quickly.
I would say that this is one of those things we need we all need to keep an eye on because as things progress, we’ll know more and more and we will will need to kind of react to those changing environment.
So it’s a good thing to have to be aware of. It’s a good thing to keep track of. And, you know, I believe that the, they will start hearing actual claims in around June, at the latest that seemed like that was what they were doing so well I’m thinking
going to start hearing some of these final rulings coming out very soon. Another thing that we’re doing, and I’m sure you are and other schools as well is doing a little bit of education around what this law means and what does it mean.
So for our library users or our university, communities, if we were to receive one of these claims notices. Of course we know that everyone has the ability to opt out.
But it’s really going to be up to the individual. To determine that but we know that libraries can help provide education around some of these copyright policy issues on our campuses and we’re starting to do that right now.
And also being in communication with our legal departments within the universities because they’re going to probably want to know about these things as well, you know to what extent, our faculty or students or researchers, getting these notices.
What are they going to do about them and how can we provide education, you know with the knowledge that we can’t really provide legal advice but how can you provide education to help our communities make good decisions about what this means and how they
might want to proceed.

Sara: And that’s a really good point there so we, you know, as, as you mentioned, Tim.
This is going to be an issue for for everyone really whether or not the libraries, and their employees can opt out because we’ve still got scholars and students and other folks who could potentially be sued.
The other issue is that it does exempt. At least University of Illinois writ large because it’s a it’s a government or state institution, which seems to kind of go hand in hand with sovereign immunity, where, you know, the University of Illinois cannot
be sued for copyright infringement in federal court, either due to sovereign immunity. But then it leaves the question of what about the employees of the university within the scope of their employment, how does that work out.
And so there are still some questions that really don’t have great answers. And it’s very similar to the library opting out, and the employees, maybe being on the hook what’s, what do we have what happens when the professor is in a similar situation so
it’ll be really interesting. I mean from from a standpoint of like a lawyer, right it’s kind of interesting to see this play out and see these cases go forward but from a standpoint as a librarian it’s a little frightening, to be honest with you because
I would not want a patron say faculty member to come to me and say I just got this, you know, what do I do, and then oh I got this two months ago I forgot to opt out now I have to go.
You know, and then see what happens it’s like that would be scary and not a fun experience so yes we definitely need to educate folks so that they do know if they can opt out and figure out why they might want to opt out versus go through.
I mean, in my opinion, and this is not legal advice but I would, I would opt out every time I mean, I’m not sure why would go to this board, and you know willingly.
Because, you know, federal court is much harder for them.
There is, it’s harder for the plaintiff and there’s a lot more they have to pay and go through. So, I’m not sure what what would motivate someone to go to the small claims court I’ll be interesting to see what types of cases end up there, although that
scares me to that some of the claims that end up there the folks who, you know, didn’t really pay attention to the notice and it just laughs and then all of a sudden, they have they have to go.
I don’t like that idea, because, to me that’s not really voluntary that’s just like I didn’t really pay attention.
Right, but I’m thinking that’s going to be some of the cases unfortunately because that’s that happens in, you know, in regular court too is you get what’s called a default judgment because the other person just never shows up.
And, and that can be good for the plaintiff but it’s that’s never going to be good for the defendant and if they are professors or students.

Tim: That’s not good. I wouldn’t like, I would not like to see that happening so yeah i think one possible mitigating factor is, it seems like the law and the corporate office has been doing some due diligence, about what gets put into these notices and making
sure that they are official, they are served using the how other things are served on people so sending you a notice through the mail, sending a bottle up notice within that 60 day window if you didn’t get the first one, it’ll be interesting to see actually
how it plays out. But hopefully there are some of those measures that are set up that will allow people to be able to have information to make those decisions.
Before that 60 day window runs out because you’re right. Otherwise, we’re just going to have a lot of default judgments because people are going to be like well what is this and is this just spam or as am I being trolled here I don’t know so that’s all
uh to be determined yet.
Well, and even in, even in quote unquote regular court right default note default judgments happen, and even there where you have to show proof of service right that you know they were personally served
and and the the notices are very clear and, you know, you have to do this and answer within 20 days and whatever folks still don’t get their act, gather all the time.
Now of course you can’t opt out.
In that instance like you know you have to show up it’s like, no, don’t even do anything it’s like they just sit there then they get a default judgment so I’m a little concerned and I’m especially concerned I’ll tell you about students, because I do think
professors I think professors if they get this notice like, yeah, they’re probably going to try to figure out what to do. I could see a student just being busy and just thinking like, I’ll deal with it later and then forgetting about it.

Sara: I could see that happening. And that would bother me a lot if that’s if that happened because
I know some students will be right on top of it right and and finding out all the information they need to but but yeah I just will see maybe I would hope that, that, that people aren’t just go, you know, raring to go and try to sue up as many students
as possible I mean that just seems like a terrible outcome of this limit of this legislation which I do think some of their goal was to deal with, you know, photographers, for instance right who posts maybe some of their work on their website but other
people are stealing it and things like that and I do understand that, you know, there are issues with folks who are saying, well, I I’m losing money but I don’t have enough money to go to the federal court system.
I think that’s where they wanted, that’s like the sweet spot where they wanted to get this legislation to hit but you know I really hope that it doesn’t play out in a different way.
And I know the legislation also I think you pointed out recently, to me at least was that there’s kind of an anti trolling mechanism, kind of trying to prevent folks from just spam, you know suing everybody.

Tim: Yeah, there was a there was a provision of one of the most recent NPR, that suggested that there be a cap by Bob, I believe, 10 claims, per year, per rights holder.
So I think that that could help because I think one of the fears, when we saw this originally is. Well yeah, they’re just going to be copyright trolls that are sending these like hundreds of them out, you know, and see what sticks against the wall or
see which they can get default judgments on but if this actually does go through where there’s an actual limit, I think that would go a long way into tamping down on some of the abuse that a lot of people have been critical of this process.
Yeah, so I i hope that is the case and that we don’t see an you know an abuse of the system.

Sara: Well, it’s been a really great chat we’ve had here and I want to respect our listeners time so they feel like they can, you know, go and do some advocacy on their own and one thing we learned through a la is tag, tag your congressperson tag your legislator,
if you’re doing something on Twitter. And it’s you know about your local library doing something amazing, or you need funding for something or what have you tag folks on twitter, so that they see it.

Tim: Yeah. Right on, I mean there’s so many issues that are that are coming up over the next few years, relevant to copyright in libraries. I mean, we have controlled digital lending, we have a lot of these state ebook laws that are being challenged now.
There are other things that will come up within the next year or two. So it’s important to stay involved, it’s important to to engage with decision makers and there’s a variety of ways of doing that.
We can do it through social media. We can do it through getting involved in organizations like like the ALA, we can subscribe to like legislative alerts.
We can help out in some of the organizing that sort of new groups are doing, like library futures. And just follow along. There’s a lot of ways that we can all work together and be involved in a lot of these policy and copyright issues that affect libraries.

Sara: Yeah, and that’s a great point because one of the things that we also learned it, and policy corps that it’s not just about us right. I mean, we are learning these tools and we are going to, we are empowered to pass them along and and so I hope this episode
kind of inspired listeners to get more involved in to follow their local legislators on Twitter and kind of see ways that they can advocate for libraries as well.
So, and also obviously pay attention when a la has a policy alert and wants you to call your local senator or your local legislator, you know, give them a call because that’s one of the ways that we can make an impact right.

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, which seemed to make a distinction and say, well, they didn’t say employees when they talked about opting out, so maybe they aren’t talking about employees when they’re talking about state and federal governments? I don’t know. I personally think that probably employees shouldn’t be held liable under CASE Act either under principles of sovereign immunity, but as we all know, it doesn’t prevent you, even in federal court from being sued. It prevents you from incurring damages. It would then say, okay, well, they have less incentive to sue you because they’re not going to get those big statutory damages, but they could still sue you and go for an injunction. Will, that was a long answer. I’m going to let you clarify or add your two cents or correct me if I said anything wrong, cause Lord knows I do sometimes.

 

Will: Well, there’s two of us, so hopefully between the two of us we’ll be okay. No, I think you said it really well. It’s important at the outset to say that these are two, sort of parallel aspects of the law, that sovereign immunity specifically says if you are a public institution, a state institution, those damages are not available. But exactly as you say in Georgia State, the, the plaintiffs were not really interested in damages. They were interested in coercing people into accepting a blanket license, right? That was the endgame for them. So that’s the first piece. The CASE Act is specifically the Small Claims Tribunal that you described, that is there, in theory because copyright lawsuits are so expensive and complicated, right? The number that’s being thrown around a lot, is what, $276,000 or so, is what it costs to, just to basically begin a suit in federal court. So, so, that speaks to the, both the cost of suing somebody and potentially the cost of being sued, even if there are no damages, as those attorney’s fees can certainly add up from there. The question then about whether individuals can either opt out or just say, “I’m an employee acting within the scope of my duty, I shouldn’t even need to opt out. I’m, I am covered in this case under basic, sort of fundamental principles of agency law.” That, I think, is the heart of this, this comment that’s coming up due October 4th, is how we think about library employees in that space. And I, and I think several people have said this and it’s absolutely right. Libraries can’t do anything without librarians, right? The, the building doesn’t get up and walk around and scan books or whatever, right? It’s the people doing the work. So, any sort of opt out or exception that said, “The library is immune from suit, but all the individual people can be sued.” is sort of illusory. It doesn’t do anything useful, right? So, from my perspective, it’s hard to make a good faith argument that librarians shouldn’t be considered, sort of, protected by both sovereign immunity and the broad sort of limitations that the CASE Act provides as well, when they’re acting within the scope of their employment. And we can have conversations about scope, scope of employment, and that sort of thing as well. But, but to me, that’s the, that’s the baseline piece of it. The other thing I wanted to say at this stage is it’s important, I think, to articulate the sort of privileged nature of libraries and librarianship generally, that this is a core principle in copyright law, that what libraries do is society serving. It meets the mission of the progress clause. So, libraries have this whole, you know, set of copyright exceptions in Section 108. If you’ve ever put that weird notice on your photocopiers or scanners, that’s what you were doing in that context. So, so not only is it a weird reading of agency law to say, “We want to protect the institution, but not any of the people doing the institution’s work.” It also sort of flies in the face of the core policy judgment that Congress and the courts have made in terms of saying, “Libraries are really important. The work they do promotes the progress of science and the useful arts. We need to make sure they have the space to do that good work.” So that’s, that’s my soapbox that I was on for a long time.

 

Sara: I get that. I think, whenever you engage in advocacy with a public body, right, you’re not usually, your name is attached to it. And if you’re stating what you do for a living and you know, you’re, you’re potentially letting them know what you do and why you do it. At my library, and this may not be true of others, my name is already out there and what I do is already out there, right? I’m listed very publicly. My resources, my library guides have my name on them, right? So, to me, it didn’t raise any specter of liability that I wasn’t already kind of dealing with. I think the title copyright librarian kind of indicates, oh yeah, I do have to make fair use assessments and people do come to me and ask questions about copyright information. Of course, I don’t make other people’s fair use assessments, but I guide them and empower them into making their own. I would say the person who posted here said that they are engaged in interlibrary loan. Again, I, I know what interlibrary loan is, right? That means that you are scanning copyright protected works. That’s the nature of the job. And I think most people know that as well. And so to me, hopefully that doesn’t really raise any additional liability on your part when you submit something. But of course, I can’t promise that there aren’t copyright trolls out there, right? Unfortunately, they already exist. I think the benefit in us submitting these comments is that we’re trying to let the Copyright Office know that this will impact our daily work. And the goal here, at least for me, in calling for large collective action, is that I want the Copyright Office to understand the impact, that this proposed ruling would have, right? The proposed rule that they put forth about the opt-out provisions said, you know, yes, a library or an archive can opt out, one time, of the CASE Act or Small Claims Act proceedings, and then they never have to worry about it again, right? If someone tries to sue them, they, they opt out automatically. And the benefit of that is that if you forget to opt out, you can get a default judgment against you, right? And then all of a sudden you have damages. And so that’s why that was, as Will said, libraries are protected and archives are protected if they do this one time, right? Because our society and our Congress understands that what we do is important. That what we do shouldn’t be interrupted constantly by little lawsuits, right? That the library can’t function in that way. But what they don’t understand, what the Copyright Office doesn’t understand, I think, and what Will said quite brilliantly, right, was the library isn’t making the scanning. The library, you know, the library is just a building. It doesn’t do anything. The library only does things through its employees, and if the employees are constantly being sued, guess what, the library might as well shut down. And so, if Congress really wants to protect libraries from being sued constantly and having to remember to opt out constantly, they should also protect employees from the same. And so, this is what, um, this is why I encourage advocacy. And my real sincere hope is that we will move the needle on this. This was a proposed rule by the Copyright Office. It’s not final. And I’m really hopeful that through collective action we’re able to convince the Copyright Office that they got it wrong. And if we do that, then our goal has been met, right? Having your name on that document is not going to subject you to any potential liability because you, when your library opts out, it will also cover you. And that’s the goal. Can I promised that goal will be met? No. Unfortunately, advocacy is always like that, right? You, you do your best and you hope that it makes that impact. But I do think it’s worth doing. I think advocacy is worth doing, even if it does mean that we have to put our name on a public document.

 

Will: Totally agree. And I see we’ve got an anonymous question I want to address in just a second, but before that, I just want to jump on what you’re saying and plus one it as well. There are a surprising number of cases where some larger sort of legal policy fight is happening and librarians can sort of get swept up in it in different ways. I think about the Kirtsaeng case a few years back, where there was this large and sort of technical conversation, about, you know, whether works were lawfully made under this title and what that meant geographically. I don’t think most people were thinking about libraries when that litigation was happening. But several library organizations wrote amicus briefs to the Supreme Court and said, “Don’t forget about us while you’re weighing all these other policy questions, please don’t let us get sort of squished underfoot for these big other conversations.” And not only did we get the outcome we wanted, we got some language in the opinion that basically said that “The work of libraries is important, a different ruling in this case would have an adverse effect on libraries and librarianship.” So that was part of our calculus. I think we have some nice case studies where we said, properly, “You might not be thinking about us, but please do in this moment to make a decision that recognizes that.”

 

Sara: Great, I do see that question about whether you can make an anonymous comment. Do we know the answer to that, Will?

 

Will: I think it was answered in the chat, which is that you can, but it’s still recorded in certain ways. There was also a person wrote in and asked to, to ask a question here anonymously. So if it’s okay, I’ll read that one out. And then I see Jonah has his hand up as well. So the question is sort of a strategic one and it asks, is there a risk in, risk involved in stressing how much effect this might have on our daily operations, when we know that some folks in the Copyright Office seem to already think libraries are sketchy, and library users especially, are sort of sketchy edge users, like it does in a sense that confirm the, I think, wildly inaccurate, but existing bias, that like where “We were already sort of looking at you with side-eye and now you’re coming back and asking for more protection. What’s up with that?” And I think there’s something to say around sovereign immunity with that. But Sara, I’m interested how you would respond to that question.

 

Sara: So I think what you’re saying is when you write this letter saying how it might impact your daily work, are you going to get kind of a, more scrutiny, I guess, into what you’re doing. My answer would be no, but I also didn’t, when I wrote in, I didn’t write every single thing that I do on a daily basis, in very great detail, right? Because I first of all, like I just, I need to protect patron privacy. So like, that is foremost right? In everything we do, we all know this, right? So I would never say I scanned this thing for this patron or you know, a specific thing. But what I did say is that I routinely make fair use determinations for my own teaching and for my own library guides and my own educational outreach that I do on campus. And it would be hindered if I would have to respond to these lawsuits for everything that I did, right? It would just it, and it might also put me in a position where the risk gets higher and higher, right? I mean, fair use is a risk assessment every time. And so I don’t think anyone would look askew at that, only because what I say that I’m doing is really typical. I mean, I’m not I’m not doing anything atypical. And I don’t know what you could say that they would feel like is pushing it too far. I mean, I see, I see your point. Maybe if you get into, we’re doing controlled digital lending and here’s how many books we’re scanning and all this, right? Maybe they would think that was pushing it far, but I even think there, many libraries are publicly stating that they’re doing controlled digital lending. So that’s not even anything super controversial. So I guess, I, I don’t think so, but I wonder what you think, Will.

 

Will: Yes, I mean, I think that’s right, and along with what you said about fair use being a risk assessment, fair use is a muscle as well, right? And so I think, I personally think there’s real value in getting on the record some of these concerns even if we don’t win the day. So that as the conversations about the constitutionality of this stuff and other things are there, that that’s out there. The piece that I do understand is that they’re historically, the Copyright Office has not always been a library-first policy body, right, for better or for worse. So I, I, I could imagine somebody saying if I was talking to a judge or a legislature, they often love libraries, but this particular context feels different. The other piece I wanted to bring in is, we included sovereign immunity in this conversation because that’s been kind of a third rail in this space and it’s not the same thing, but I think in terms of the way policy folks are thinking about it, it overlaps. So just to quickly share that context, my state, North Carolina, relied on sovereign immunity for some pretty aggressive use of photographs of Blackbeard’s ship, without, sort of going through the steps that they maybe should have done. That’s for a court, and not for me, to decide. And last term, the Supreme Court upheld sovereign immunity. They said that sovereign immunity should exist. Even in this context where this doesn’t seem like the best case study. Like, if I wanted to defend sovereign immunity, those set of behaviors or not, the model set of behaviors I would have brought forward.

 

Sara: And just sovereign immunity means that a state or federal government cannot be sued in copyright for damages, for money. Not that they can’t be sued, right? Because we all know that they could for Georgia State purposes, right, for maybe an injunction or, injunction means stop doing that, right? Whatever you’re doing, stop it. But that they can’t get those statutory damages. Sorry. I’m just interrupting you, go on.

 

Will: No. Thank you.

 

Sara: I like and I also love the fact that it was a pirate case.

Will: Yes.

 

Sara: Yeah, there’s nothing better than a case about copyright that involves a pirate, just saying.

Will: At last we find when piracy is the right statement, finally, when using the term so much. Anyway, one of the results of that is the court’s opinion basically said, “Under current law, sovereign immunity stands. But if you have concerns, the legislature can do something about it.” So this large study was launched to try and determine whether or not we should revisit sovereign immunity. It, we could spend some time talking about that report. I think it, it, the people watching it came in with a set of expectations that weren’t necessarily met by the data they found on the ground. But, at least to me, that creates a sense that people are sniffing around the broader concept of sovereign immunity and saying, “This, this blanket shield from liability makes me suspicious and skeptical.” And these larger questions about the policy values of that liability are being asked. I think there’s a really overwhelmingly strong way to articulate why it’s important to have that immunization and that protection both for sort of nerdy, you know, principles of federalism reasons, but also for actual on the ground work. But if there’s already an environment where people are launching studies trying to undo or remove sovereign immunity, having the conversation about how librarians are treated under the CASE Act may touch that third rail in some places. So I, the thing that really resonated to me in that question was that, that sense of like, “These are stormy times, I’m going to be careful where I stick my umbrella.” Or something.

 

Sara: Well definitely, and folks have been, folks being legislators, had been kind of attacking sovereign immunity. And the Copyright Office has done their own inquiry into it. And for now, at least, according to the Supreme Court and the Copyright Office, there is no viable evidence of you know, enough harm to individuals through sovereign immunity that we should breach sovereign immunity or get rid of it. However, yes, that’s an ongoing thing and it kind of continues to poke, rear its head, right, because the Copyright Office will tell them, “Well, we don’t have enough evidence right now, but come back to us in five years with another report,” right? I mean, that’s kind of what happens. It’s like “Gather some more evidence.” And they had a horror story, a parade of horribles of, you know, that poor individuals, and some of them I really did feel for, I have to tell you, I was there during the hearings and they were saying like, “The university stole this and made all this money. And then they told me to go away because the sovereign immunity,” and that does happen. I’m not going to lie it does, but I mean, that’s not what, that’s not typical. I mean, at my university, my general counsel joined me for the sovereign immunity hearings, and, you know, we consider ourselves good faith actors. Like, if we find out that a faculty member has done something illegal or copied something, put on their website, we immediately go take it down. We say, “Okay, we need to do something about this right away.” We don’t just say “Too bad, we’re not going to pay any damages,” right? So it’s, it’s just, it does happen. It’s unfortunate. But I think that it’s pretty rare. And I think that was what the Copyright Office concluded, that the evidence really just didn’t show that it’s widespread enough to create that kind of irreparable harm that we would need to pierce sovereign immunity. I see Jonah’s had his hand up for a while, so Jonah –

 

Jonah: So I’ve seen several commentators and Will just mentioned a moment ago that there was some question about the constitutionality of the CASE Act. I was wondering if both of you could expand a little bit about why people feel that the CASE Act might be unconstitutional. And also, I assume that unconstitutionality applies to the entire framework of the CASE Act and not just vis-à-vis, like library employees.

 

Sara: That’s right. And great question, and I’m not the most familiar with these arguments, so I’ll let Will jump in, but my understanding is that it has to do with the tribunal, and that it’s not an official court. And I think that’s the concern, that you’ve got, not, not a real, it’s not a real court, right? It’s, it’s appointed by, these are judges appointed by the Copyright Office to handle these claims. Over to Will.

 

Will: That’s exactly right. The Seventh Amendment talks about the right to trial by jury. And obviously you can opt out of your trial by jury in some cases. But the CASE Act, by creating this weird tribunal, that’s not necessarily even in the article 3 constitutional space, that’s where judges tend to live, generally, there’s this question about whether people’s rights are being impacted in some way. Because it’s this sort of weird, made-up, quasi court where you don’t have all of your rights and protections, but it does still seem to be bind right? You can’t lose under a case tribunal and then just kick back to the federal court if you don’t like the results. So are we locking people and especially through this, right, the, the, if you get an email or if you don’t get an email because it went to your spam, telling you that you have been accused and you don’t respond, you’re stuck with whatever judgment they have. So if, you can, without getting any opportunity to trial by jury, or even in some cases, any opportunity to meaningfully understand that anything has been raised, and you’re bound by that, there are, I think, serious constitutional problems there as well. People have also, I think, rightly asked some questions about whether this is described as a small claims process. Well, where I sit, $30,000 is not small claims, right? That’s, that would be a real life-changer for me in some ways. So, from the perspective of a large international rights holder, $30,000 might be the thing you find in your couch cushion or whatever. But I think that the claim that “This is just for the little stuff, you know, up to $30,000,” feels a little maybe disingenuous or just out of tune with the way most people’s lives and finances work.

 

Sara: Right. And one thing that I struggle with is how this court would be compared with administrative judges, for instance. Because I think their argument on the other side would be like “This is just like an administrative court where we don’t have all the same rules as, you know, regular court and you don’t necessarily have a trial by jury, but we have delegated our rights to this administrative court judge.” You think that’s going to fly here, Will?

 

Will: I have stopped trying to predict the Supreme Court over the past year or two as it has continued to surprise me. If we could go this podcast without using the word Chevron at any point, that would make me super happy. I do not know, To me both the equities in the constitutional arguments seem pretty compelling in terms of questioning it, but it would, because that’s where I sit and that’s the world I live in and those are the issues I think about. So I, I would like to imagine that the Supreme Court would take a close look at this, but I would like to imagine a lot of things.

 

Sara: Yeah. No, and I do think, that that’s, I think that’s going to be their response. And again, I don’t, also don’t know how that would turn out. I do also know, I think the Electronic Frontier Foundation is looking into this and very serious about suing, but they have to wait till they have a real case. So I think they have to wait until someone gets sued, and then they’ll have standing to bring a lawsuit. Until then you don’t have, so standing is, is one of the requirements we have to file a lawsuit. You can’t say well, “Prospectively, I’m just mad about this.” You have to have some real damages happening to a real person, a real plaintiff. So I think that they’re gathering up what they can in the meantime and all their arguments, and they’re kind of waiting for the first plaintiff to come along who says, “Yeah, take my case and let’s fight it constitutionally.” That’s my understanding, and I’m, I’ll definitely be on the sidelines cheering them on, or happy to help them if I can in any way.

 

Will: Yeah, I feel the same way and I imagine there will be a certain amount of plaintiff shopping. Who is the most, you know, who, who is the best example of why this is problematic set of practices.

 

Sara: Great point.

 

Will: Something to watch.

 

Sara: We have a question in the chat that other people are, are kind of saying “Me too!” So I’m going to read it out loud here. It says “I’m organizing an email to our library staff to alert them about the CASE Act so they can submit their own statements, and I’m pushing for an institutional statement. I’m wondering if I should reach out to faculty at my institution. Would this potentially affect faculty as well. Those working on OERs are using course reserves, for example. Or is this more librarian oriented?” So the opt out provision is for libraries and archives specifically. And so, generally, I would say, “Will the CASE Act impact faculty?” Probably so, right, and that also depends on whether you’re a public institution or private institution because we again, don’t know how the courts are going to look at sovereign immunity. And they’ve, they’ve allowed and said, state and federal governments can’t be sued under the CASE Act, but we don’t really know how that’s going to play out in terms of individual employees. So there’s that. But in terms of this opt out, if you’re trying to have people respond about the opt out specifically, that is about library employees and archival employees.

 

Will: Well said, I’ll ask the follow-up question to you and if other folks want to jump in as well, what, if anything, are you going to do to prepare your non-library employees there? Are there a series of workshops coming out to say, “This is a wacky thing. It might never affect you, but if you’re interested, here it comes.” Or how are we as a community thinking about educating beyond the libraries in this matter?

 

Sara: That’s a really good question. And, and for me, I feel like it’s a little early, only because these proposed rules are still coming out. Like there’s another proposed rule that came out just today. And I got it in my e-mail and said, “Okay, too long, didn’t read yet, but will, right?” So I think it’s such a moving target that I’m not prepared yet to reach out to faculty generally, but I do think it will be important once we kind of know where the playing field is and what’s going on to have some, some strategic conversations. Like first, I’m going to have strategic conversations with library administration. Like, even if we are state and federal, a state or federal library, which we are at University of Illinois, if the opt-out provisions are extended to employees, I’m, I’m going to push that we just file the opt-out regardless, because it would cover our employees. That would be my ask to my administration, if we get what we’re asking for in this push right now. Secondly, I would have to say, yeah, to faculty and say, “Let’s have this conversation. What is this thing? What is this small claims court? What are the potential outcomes and how does this impact you?” And then again, big question mark, “We are at a state government institution, how does that impact employees?” And I would also really encourage them to understand that they can always opt out no matter what. So even if you can’t opt out preemptively and do it once and it’s going to apply to everything, which is, of course a good scenario, you can opt out for every single suit. And then that would say to the person, “Hey, sue me in federal court.” Now, we know how sovereign immunity works in federal court, right, at least currently. And so that would give us some measure of protection there if we’re not sure about the CASE Act outcome. And so, you know, without giving legal advice, which I’m not allowed to do in my role as copyright librarian, I would try to let them know, like here are the options, right? The option is you go to this court and try to argue that because you’re a state or federal employee, you know, they can’t sue you, but, you know, I don’t know how that’s going to turn out. Or you can opt out and say, “Hey, you would have to come and sue me in federal court.” And we know that’s pretty cost-prohibitive for them. And we also know that they can’t get damages against you there. So I would let them know these are their options and of course, everyone has to make their own decision because I might have a faculty member who knows a lot about this and is like, “I’m really angry, really angry that they’re suing me, they shouldn’t be. So I’m going to fight this.” I mean, hey, more power to them, but like, I’m not going to tell them to do that necessarily. I’m going to give them options.

 

Will: Thank you. Yeah, a couple of people, Molly Keener, and others have added in chat, and it sounds like they’re doing basically the same thing. “We’re keeping high level administration aware, we’re talking to counsel’s offices. But it’s a little early.” I also wanted to, I think Nancy in the chat mentioned that if you’re especially at a larger institution, the question I get sometimes is like “I work in the library, so I’m going to write on behalf of the library where, I work at NC State, so I’m going to write.” And at most institutions, especially as Nancy says, large institutions, there are pretty clear rules around who can and cannot speak and write on behalf of the institution. So if I submitted comments on behalf of NC State, our legislative advocacy people would murder me and you would never find my body, right? So, so be aware that there are a small set of people who can speak on behalf of the institution, and that there are probably people on your campus who have big feelings about who is doing that work.

 

Sara: That’s a really good point. And on the flip side of that, I’ve been really fortunate to work with those government outreach folks at Illinois to get their kind of permission, if you will, to speak on behalf of the library and the sovereign immunity instance, for instance. I’m, I coauthored a letter on behalf of our institution with our counsel’s office. So if you go through the right channels, you can get those permissions, but you have to be aware that you need that. You can’t just go ahead and do it. And also usually you need the Dean of the library to say it’s okay, the counsel’s office to say it’s okay, the government relations folks to say it’s okay, and just to go through a variety of, of processes. When things come up really quickly like this, this current call for responses, I just signed it on behalf of myself individually because I sometimes I don’t have time to run through the chain of command, right? Like to know like, okay, I need to go to this person and this person then this. Like, just because you have permission to do it once doesn’t mean it’s kosher to do it again and again and again. So I had permission, like I said, on sovereign immunity to really speak up on behalf of the university. But I don’t have that permission like as a blanket statement. It’s a really good point. Any other questions? Take it away.

 

Will: So Susan Kendall asks whether we can share some communication that you would have the library administration, that those of us who are not lawyers, can use with your administration. I don’t have anything in my back pocket, but it seems like a great service. Some group, whether it’s EUIPO or ALA, or whomever, could do is to say, “Here’s some model language to let people know what’s happening with CASE, here’s some model language that’s targeted towards faculty” and you know that there is a broad need for that. So that might be something that maybe somebody has already done. I’d love to learn about it. And if not, it would be great if somebody could do it.

 

Sara: Will, I love that idea. And I think in terms of when we move forward, I think that we are, that would be a great service, right? To have some standard like “Here’s language to communicate about CASE with your employees. Here’s some if you’re a public employee. Here’s some if you’re a private employee, here’s some for libraries, here’s…” something like that would be such a great thing. And I am a member of the ALA Policy Corps group and I think that would be an awesome project for us. And again, I would say it’s a little early for that in terms of how we can, we can’t predict the future about CASE. So we gotta wait a little bit and then I’m really, fingers crossed, that the lawsuit about constitutionality actually goes forward and we can get rid of all of these concerns, but it’s just a moving target. And unfortunately, that’s, that happens a lot with copyright, right? It’s, it’s, it’s a moving target a lot of the time. So I do, I think we should have some sort of repository for that kind of information. And I, I, I think it’s a great idea. There’s a question, did the Library Copyright Institute create a sample of language that could be used? I don’t think so, but I do know, you know, if you look at the comments that have been posted about the CASE Act, there’s a lot of good information you can gather. It’s all public. Will, do you know of anything that they created the Library Copyright Institute?

 

Will: We did a webinar on this last week and we borrowed your language. We said “This is what ALA has provided. This is a nice way to, here’s some specific verbiage you can borrow, but also here’s a nice way to frame, sort of introduce the idea, provide your context, give specific examples.” So that’s the thing that was circulating in those slides that should be available, the recording should be available at this point, but that’s not LCI’s credit, that’s ALA’s credit. We were just sharing their good work.

 

Sara: You know, everyone has their own unique perspective and we all have different ways of looking at things, right? And so it’s really good to get, just a variety of perspectives, about all the things that are happening in copyright world. Kenny is obviously a wonderful person to talk to always because he’s just a really nice person. And I have a Copyright Chat episode talking with Kenny. So I recommend you listen to it if you’re interested. He of course authored the famous Copyright Checklist, that most people use for fair use. I recommend it to folks all the time. And in our, in that particular episode, we were talking about the copyright guidelines in Circular 21 and how they’re really outdated. Other questions?

 

Audience Member: I do. So what is next? How should we proceed in the coming months, while we kind of wait to see what comes down? And once those things come down, the final rulemaking, what the court looks like, what are ways we can work together to move forward?

 

Sara: That’s a great question. I mean, I think one thing that I would recommend to everyone here, is to sign up for the US Copyright Office Notices. This is how I learn about what’s going on with the CASE Act and the new rulings and things, right? Instead of hearing it from someone else, you can hear it directly from the Copyright Office. So I highly recommend that, and read, read the proposed rulings as they come out. And if you feel that there’s something that you or your library could respond to, pass it up to your dean, pass it up to general counsel and keep them apprised of what’s going on because things are definitely still moving along and not solidified yet. So keep on being engaged in that process because I think it’s really important that we are aware of how it’s, how it’s moving. And then once, once we have some final idea of what’s going on, hopefully the ALA Policy Corps or someone else can put out some really helpful, useful information. I’m thinking like the SPARC information that they have about the state by state laws on OER, right? They’re just so good. I love their website and their tools. If we can come up with something like that, that’s just really short, but really comprehensive, I think that we could be doing a really great service. So maybe come up with your own stuff and we can kind of put our heads together and come up with that documentation because I think we’re going to need a lot of outreach to our faculty and to fellow librarians about how this might impact our work.

 

Will: Yeah, that’s, that’s a great point. And the question that you mentioned a moment ago is, is if this constitutionally goes away next term, have we spent all this time getting people invested and raised all this awareness, and then suddenly it’s like “What happened to that CASE thing you said was going to ruin the world?” “Well, it just went away.” So as, as we were talking about engagement with faculty, that’s one of the issues that I’m really thinking about is, one, getting faculty to show up for a website on copyright Small Claims Tribunal can be challenging. So I’m, I’m wondering if other people are having that, like, is this something faculty and others aren’t going to care about until they’re being sued and it’s too late. Like, is there a way to say “This might be nothing. It might be really important, but you need to know about it now. Because once you get a notification, it’s probably too late for us to do anything about it.”

 

Sara: Yeah, I mean, I don’t think it’s too late for us to do anything once they get a notification as long as they didn’t sit on it. Because I, I just read, the one thing that I did read is that you have 60 days to respond to the notice under the proposed rules. Again, nothing final, which is quite a long time, if it got to the right place. Like Will was saying, if it got in your junk email or went to the wrong location, like that’s just a problem. But if, if a faculty member does come to me and they have the notice in hand, I think that’s a really good time to have that kind of “Here are your options” conversation, right? I mean, you could do nothing and then you could get a default judgement. That’s not a good idea, right? Default judgment means “You didn’t even bother to show up, pay these damages, because this is what we’ve decided.” So that’s bad, and right, your options are, you know, opt out and decide to say, “Hey, you know, I’m not, I’m not engaging in this process. If you want to sue me, take me to federal court” or respond, right? And then you can respond with, “Hey, this was a fair use,” or “Hey, this is, I’m a government employee” or whatever your defense is, but of course you don’t have any guarantees that how that’s going to turn out because these are the judges, judges are not real, they’re not federal judges, they’re not necessarily trained. And even federal judges on copyright sometimes get pretty confused. They get a little turned around. So I’ve had experiences as a practicing lawyer that you wouldn’t believe or I have a motion that I think is a slam dunk and I get denied. And then I have another motion that I think there’s no way in heck, this is going to go through and the judge lets it through. So judges sometimes do wonky things. So it’s important for people to know that too. Even if they’re like, “I know I have a fair use. I know that this is permissible, that’s so obvious.” That’s why, yeah, judges sometimes make mistakes and I think these judges could too, right?

 

Will: You would hope. And I’m sure the argument is, these judges are going to have that specialist training, so they’ll be especially well-prepared. So then the question is, who’s going to give them that training? Is CCC’s version of a copyright webinar, is it ALA’s, et cetera. So that specialization you’re right, is a problem too. Sometimes comedic levels, at the federal level, whether the specialization that these judges have means they are more sophisticated or just more invested in one view of the doctrine is a different thing. Carla, please go ahead. I’m sorry.

 

Carla: No, this conversation brings something to mind for me in that happened back when I was in college, which was during the time of Napster in the late 1990s. And I met one of my friends for lunch and he was looking very depressed. He had gotten notice from a music company and they said “We saw you’ve been sharing our music illegally online, that you can either pay $3,000” in the late 1990s to a college student, which was terrifying, “Or we will sue you.” And you know, something I was just thinking is, could we see with the CASE Act, copyright trolls saying, “Hey, we’re going to see you in small claims court. But if you don’t opt to do that, we’re going to take you to federal court, or you can just make this all go away by paying us X amount of dollars and we’ll leave you alone.” And the chilling effect that might have, do you think that’s a possibility?

Sara: I definitely think that’s a possibility and I think that, that’s part of the art, the goal of outreach, right? Is to educate people that they can opt out and that they don’t have to pay that money, right? So yeah, it’s, it’s, it’s definitely a possibility and, and if folks are just unaware of what this is, right, they think, “Oh, I’m going to go to court, I better pay this” and they don’t even know. I know that the notice is supposed to tell you about the opt-out provision and all of those things. But, you know, some people just get really scared. You get a letter in the mail saying you have to pay this money. And you think, “Oh no, I have to do this,” right? You just want it to go away. And so I think that is a real possibility.

 

Will: Yeah, I’ve, I’ve dropped the phrase, but somebody basically described the CASE act as a copyright troll factory. I think there’s, there’s something to that. Nancy, I saw your hand raised. If you’d like to ask a question or jump in, please do.

 

Nancy: Yeah, I, I realized that what I was thinking about is, is rather tangential. But with respect to trolling, those of you who work in academic libraries may have seen some of this lately. I’ve seen an increase in people who put some kind of vaguely copyrightable measurement tool online. And then other people use it without permission, which is only questionably a copyright violation anyway, forms are not usually very copyrightable. But the people who made the form, some people really seem to have gone full trolling model on this. Their form is out there primarily to get people to use it. And then once people have used it, if they publish on the research they did with the tool, they are now threatening the authors with lawsuits. I don’t know if they’re getting payments, but they are getting retractions. Which is, I’m concerned about, just because that’s not a correct legal response to this kind of, if it is a copyright violation, retractions are not the right answer. But, but I think that the over, as I said, this is tangential, that’s why I put my hand down. But it is an illustration that the trolling model already exists, and has both some monetary drivers and some other weird drivers that I don’t understand.

 

Sara: Yes, it definitely does exist. And as Jonah was pointing out, there is someone who is licensing under Creative Commons and then using that to sue people, which is even worse in my opinion, it’s like you’re using Creative Commons to trap people into violating the whatever you put on there and then you’re suing them. It’s just mind-blowing. But yes, I think, I think unfortunately, some people are trying to trap people into using their thing and then suing them. But I would agree that a retraction is maybe not the way to go. And also someone, I wish someone, would just fight that, right? And get a court to say, “Hey, by the way, this isn’t even copyrightable.” But the problem is, and we all know this, going to court is not free, right? You can’t go, most people can’t just go to court and say, “Okay, I’m going to be pro se.” You have the court filing fees, you have to show up and you have all these deadlines. It’s a very complicated process, so it’s not as easy as all that, although I wish someone would fund it, maybe EFF, and like, find out if there is someone they could defend and really push the issue. Because if this is happening again and again and again, it needs to be dealt with, in my opinion.

 

Will: And good discussion in the chat on the, sort of the rise of copyleft trolls. There’s an article in there documenting the practice, and then Creative Commons has been working recently on updating their license enforcement language to say, “It’s your right, but what we hope the community will do is follow this set of practices.”

 

Sara: Yeah, Nancy, Nancy is like “Exactly what academic author is going to say, “I’m going to defend this and see you in court, sue me” and then like get their own lawyer.” I mean, it’s just so expensive, so we really would need an organization to take that on. Agreed. But it would be great. Other questions. This has been such a fun conversation. I just have to say this was a really fun thing to do. And I’m so happy that you all were so engaged. I just, the time has been flying by and I’ve been really enjoying it and it was fun for me to be on the other side, right? Not to be the one asking all the questions, but to get to answer some of them. So I really enjoyed engaging with you all. I hope this will inspire some of you to listen to other episodes of Copyright Chat and to give me your feedback about those and to get engaged with them. And maybe use the Scholarly Communication Network output that I come up with about teaching with Copyright Chat, or come up with your own ways to teach with Copyright Chat. I’ve actually used, that, that method with Gordon Spiegel before. And I did it live in a class. I played the episode and then I would stop it. And as I asked him a question, I would say to the class like, “What’s your answer?” right? And have them kind of figure out if they knew the answer to a common copyright myth. And it was a really fun way of holding a live class. So you can even use the, the podcast live during class. There are just so many different ways to use it for teaching. So I really hope that some of you are inspired to do that.

 

Will: Yeah, thank you for saying that. That brings us back to the sort of the SCN conversation at the top that this can be a “Your final assignment is create a podcast.” instead of writing a research paper that gets thrown away, it’s there, or, “Take two podcasts and remix them in different ways.” All the pedagogical opportunities here, I think are really, really exciting and important.

 

Sara: Or come up with a new module, right? “Find one of Sara’s Copyright Chat podcasts that she didn’t turn into a teaching module and come up with your own teaching module” and then add it in to the OER right there. Just so many, possibilities are endless, but I do love the idea of creating your own copyright podcast, which is kind of fun. Because I just think I’ve had assignments like that where I’ve gotten to create something myself and I always find them really, really engaging. And active learning is just, for me, a lot more rewarding. Any, any other final comments from the crowd or things you would love to hear a Copyright Chat podcast about? Because I’m always looking for ideas. If you have other topics that you just think, “Hey, you really should do a topic about this.” Oh, a music one, ooh, that’s a really good idea. I should definitely do a music one. “Do you use videos from Copy Talk as part of educational material?” So I don’t have videos on the Copyright Chat because it’s a podcast, but I do have sometimes links to readings and sometimes links to other videos and things so, that I’ll put with, so I always have a transcription of the podcast because obviously some folks can not engage with it, if they’re hard, they have hearing struggles, so I always have a transcript available. And with the transcript is where I put additional materials.

 

Will: I was just going to say, one of the things I really appreciated about this session is the way you’ve demystified the technical aspects. I think if you said to somebody out of the blue “Do you want to make a podcast?”, they’d go, “That sounds really complicated and difficult.” And I think this has been a nice demonstration that it’s actually not as challenging and not as big of an ask as it could be. And obviously the opportunity to have some intro music from ccMixter, or right, you can sort of walk that copyright walk in terms of the way you build resources and, or rely on fair use to play a short clip from something. You could ask students to demonstrate their understanding of those concepts in the way they build the podcast.

 

Carla: So, as we’re nearing the end of the podcast, I just want to express my deepest thanks, first off to Will and Sara, for this wonderful and very informative discussion on the CASE Act. I know this has been in so many folks’ minds and I am welcoming every learning opportunity I can get on this. And I think this has been an exceptional one. My deepest thanks also to our participants. It has really warmed my heart over the last few days to see how much you all are engaging with these presentations, the conversations going on in the chat. I just think this is so fantastic and the chat will be preserved. I know there’s some questions about that, so you can download that, and I’m happy to pull links out of the chat, to put in a document that we can ask later. Before we close out, any final thoughts to share, Will and Sara?

 

Sara: I would just say, I’m so happy to see so many people engaging with copyright here in this room today. And just keep on, keep on doing that, right? I mean, I’m always learning something new about copyright every day. And copyright is one of those fun things that changes a lot. Right, as someone was pointing out, “You should talk about music, cause there are a lot of new cases and it’s changing a lot”, right? It is. And then the Music Modernization Act changed it even more, right? That’s what makes it fun is that it’s, it’s a moving target, something that you can always learn something new about. I never claim to know everything about copyright because… Kenny Crews might know everything about copyright, but not me. But I always, I just have a passion for it. And I think that’s what you need to have if you want to be a copyright librarian and if you’re interested at all, reach out to me, we are a really great group of people. We are a really nice group of people and we help each other. It’s been, it’s been a fabulous career choice for me. I’ve really enjoyed working with everyone including Karla and Will, and Nancy on this call, and Emily. And I just really can’t say enough about it as a career choice. So if you’re thinking about it at all, feel free to reach out to me, and I’m happy, I’m always happy to chat with anybody, especially because I love Copyright Chat.

 

Will: Yeah, I’ll say the same thing, but not as well, as I’ve been doing for most of the session today. I, I, it’s a really fun community to be part of, and I’m really excited about resources like Copyright Chat and the SCN, that sort of capture the community conversation. And it’s not just like “This is the expert and we’re going to shut up and listen to them.” It is, “Let’s talk about this as a group and share different experiences.” I think we’ll get a better and more robust and more invitational, and inclusive as well, understanding of what this body of practice is and can and should be. So I appreciate everybody adding your voice today and I’ll second Sara, what she said, please reach out anytime. Questions like “I’m new to the field, and how do I deal with that?” or “What do you think about this?” We’re all very happy to have those conversations.

 

Sara: And shout out to Molly and Sandra. I mean, it’s just a really fabulous group of people. I cannot say enough about my copyright colleagues. They are just wonderful people also. If you’re at all intimidated and you say, “Ooh, it’s law, I just don’t want to get engaged,” like, talk to us, because really, really you can do it. And especially if you find it really interesting and fascinating and you know, you just really want to learn more. That to me is a sign that you’re, you’re interested, right? And so, even if you don’t want to become a copyright librarian, if you’re just like, “I’m going to be the go-to copyright person at my library.” Hey, everyone needs that. That’s a certainty. So, and then, don’t feel afraid to ask questions when you have them. Because again, I mean, we, we ask questions all the time, and no question is a bad question, and I’m always happy to engage with people, so please, please reach out, and thanks for joining us today. It was so much fun.