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ALA Copytalk this afternoon is addressing Fair Use, Controlled Digital Lending, and COVID-19. The impetus is the need to address Emergency Remote Teaching.
The key is the emergency basis since libraries are closed and students may not have access to textbooks. How does Fair Use apply to enabling remote teaching during a crisis.
You can see their statement on this here: https://docs.google.com/document/d/10baTITJbFRh7D6dHVVvfgiGP2zqaMvm0EHHZYf2cBRk/mobilebasic
You can see their statement on this here: https://docs.google.com/document/d/10baTITJbFRh7D6dHVVvfgiGP2zqaMvm0EHHZYf2cBRk/mobilebasic
It influenced statements on reading aloud and Fair Use, UK Copyright Literacy statement on copyright and online teaching during crisis, Canada's Fair Dealing and Emergency & Remote Teaching, and the now-infamous National Emergency Library.
U.S. copyright law has flexibility in dealing with emergency remote teaching as in the current situation. Stay-at-home orders provide additional support for Fair Use in this context as a public good *for teaching*
That *for teaching* part is the important bit. as is the controlled aspect. This is not the same as what IA is pushing with it's copyright grab.
The four Fair Use factors play into this:
1. Purpose and Character (what are you doing?)
2. Nature of the Work
3. Amount & Substantiality (how much of the work?)
4. Market Effect (are you hurting content providers?)
1. Purpose and Character (what are you doing?)
2. Nature of the Work
3. Amount & Substantiality (how much of the work?)
4. Market Effect (are you hurting content providers?)
Teaching at a non-profit, emergency purpose, controlled access and duration, whole or part of the work all play into the question of whether this use is fair.
I'll note that IA basically ignored these factors when they made 1.4 million books available.
I'll note that IA basically ignored these factors when they made 1.4 million books available.
The question of needing to copy materials in a crisis like this was not anticipated. The goal is to provide the limited amounts of content students need to complete coursework. This is a short-term solution, not an open ended one.
Solutions for future semesters will need to find other solutions - OER, licensed resources, etc... to provide access to textbooks.
17 U.S.C. Section 108 allows libraries and archives to reproduce or distribute some works under certain conditions - to provide access to culture. This is the statute that allows us to have ILL (esp short works like articles and chapters).
Copy has to become the property of the user for private study, research, or scholarship. Copies must have a copyright notice.
Section 108(e) allows copying of out of print works for private study, research, or scholarship when the work is not available for a fair price. Again, user gets the copy, not the library.
Libraries can use both sections 107 (Fair Use) and sections 108 to provide access.
Controlled Digital Lending - Hayden Library at MIT did this while print holdings were not accessible to provide a digital copy of a work physically owned. They used a MARC overlap analysis to see what items they owned IA had in digital form.
With CDL, MIT users could go to the IA items for check out only as long as those books are physically unavailable. The digital copies were available for two weeks via waitlist and one person at a time. This only covers items MIT owned.
CDL is helpful for accessing books published between 1925 and 2000 for which no digital versions exist. Again, you have to have a 1:1 ratio of books to checkouts.
CDL is only available for non-commercial use. This relies on first-sale doctrine as defined in 17 U.S.C. section 106(3). It requires an authorized sale or acquisition (donation), but publishers can't prevent sale or lending of the item. This allows libraries to function.
First sale also allows the sale of used books, CDs, DVDs. etc.. in the economy. CDL uses tech to maintain the owned to loaned ratios that libraries use for physical books.
This obviously does not apply to licensed materials whether they are ebooks, article, streaming video, etc... Your Kindle books are essentially licensed, not owned.
Another key element of CDL is that the physical copy cannot be accessible for use by anyone. You also must use DRM to prevent copying and redistribution.
More than 30 libraries are doing this. Some publishers are also using CDL with their back catalogs.
More than 30 libraries are doing this. Some publishers are also using CDL with their back catalogs.
Hathi Trust has added an Emergency Temporary Access Service that works in a similar way during the COVID-19 pandemic. You get the book for an hour before it goes to a waiting user.
National Emergency Library from IA is NOT controlled digital lending because it has done away with waitlists and control of access. There is no precedent for this use or applying Fair Use here.
The speaker says National Emergency Library is aimed at education, but it is available to everyone without limit. That should have been addressed.
I'm really uncomfortable with skipping over that and calling it an interesting experiment.
I'm really uncomfortable with skipping over that and calling it an interesting experiment.
Now moving on the libraries and DMCA for online teaching. The exemption is for short portions of encrypted media. You can also show short portions in Zoom of media you own, but only for the amount you would show in class.
http://psu.libasnwers.com/faq/290484
http://psu.libasnwers.com/faq/290484
No one has been sued for CDL (yet). Current claim is that people who download copies that may violate copyright aren't individually liable unless they redistribute.
While ALA has the usual disclaimer about not endorsing views, I am really unhappy that the speakers are suggesting that people use IA's National Emergency Library.
You can see CopyTalk webinars here:
http://www.ala.org/advocacy/copyright/copytalk
The recording of today's will be available soon.
http://www.ala.org/advocacy/copyright/copytalk
The recording of today's will be available soon.
I disagree with the National Emergency Library approach. This article gets at some of the problems with it (after author complaints). I also don’t entirely agree with authors about controlled digital lending, which is a complex issue. https://slate.com/culture/2020/04/internet-archive-national-emergency-library-controversy.html
