v32#2 Questions & Answers — Copyright Column

by | May 11, 2020 | 0 comments

Column Editor:  Will Cross  (Director, Copyright & Digital Scholarship Center, NC State University Libraries)  ORCID: 0000-0003-1287-1156

There’s a comic that was often seen taped on the doors of my law school copyright professors way back in the mid-2000’s.  It featured a stick figure person sitting peacefully under a tree and looking out at a beautiful blue sky.  A thought bubble appears over their head reading “sometimes, I just can’t get outraged over copyright law.”  (You can see it here:  https://xkcd.com/14/ and tape it to your own door if you like — it’s openly licensed!)  That comic has been going through my head a lot as the global community has been dealing with the COVID-19 outbreak that has closed the doors of my own institution and of most non-essential services around the world.  How much does copyright matter when people are in mortal danger or locked away from society for months or longer?  How can we understand and respect the values of copyright in a way that also recognizes the complexity of applications in these unprecedented times?

With these issues in mind, I’ve selected a set of questions about how we understand copyright and implement policy during the prolonged period of social distancing that began in my neck of the woods in early March 2020 (much later than many other nations) and is expected to continue throughout the spring and into the summer (and perhaps longer still, depending on a number of factors).  While questions about balancing copyright law with other legal and human considerations may be better-answered by an ethicist or religious official, I think this moment also brings into focus the ways that copyright is flexible by design so that it can accommodate good practice even during a moment like this.

QUESTION:  An instructional librarian asks, “How does copyright apply to supporting online instruction during global pandemic?”

ANSWER:  In many ways, online instruction is entering uncharted waters right now since U.S. law has few models for applying modern copyright law to a situation where neither physical access nor established licensing models can be applied to education and research.  In response, many educators, researchers, and librarians have turned to fair use to fill this exigent, time-limited gap.  As librarian-lawyer April Hathcock has noted, “fair use is made for just these kinds of contingencies.”  The center of gravity for many practices is articulated in a statement shared by a group of leading copyright experts working in libraries called the “Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research” and available at https://tinyurl.com/tvnty3a.

The statement articulates the power of fair use to support public purposes such as education and the way that power increases in moments of crisis.  It walks through the four statutory fair use factors, grounding analysis in the first factor’s questions about the purpose of the use as well as the importance of checking for and relying on licensed alternatives but notes that a “lack of time to check for licenses should not be a barrier to meeting the needs of our communities.”

The statement offers a set of approaches to mitigate risk and suggests caution around circumvention of technical protection measures.  Finally, it ends by encouraging use of already-licensed online content, openly licensed and public domain alternatives, and of working with content vendors to find mutually agreed-on ways to expand existing access to support social distancing for instruction and research.

Individual lawyer-librarians such as the University of Minnesota’s Nancy Sims, University of Illinois’ Sara Benson, and Harvard’s Copyright Advisor Kyle Courtney have blogged, podcasted, and offered webinars about the way that copyright law supports public service.  Courtney calls these copyright exceptions “library superpowers” that allow librarians to respond to this crisis in ways that support their statutorily supported role as stewards of access for the communities they serve.  Individually and collectively, libraries have embraced this role and worked to scan materials even after physical buildings were closed and to build systems for interlibrary loan and scanning at a distance.  One example of this approach can be found in a recent webinar from the Association of Southeastern Research Libraries (ASERL) called “Yes You Can Scan That Textbook,” that offered copyright guidance and practical tips for libraries.  It is available on their archive at:  http://www.aserl.org/archive/.

The through line for all of these approaches is the exigency and immediacy of the crisis and the inability of libraries, educators, and scholars to rely on the traditional mechanisms built into copyright and licensing such as physical access enabled by first sale or negotiated permission.  The Public Statement discussed above explicitly notes that “we also encourage campuses to begin contemplating the longer-term needs this situation presents.  While fair use is absolutely appropriate to support the heightened demands presented by this emergency, if time periods extend further, campuses will need to investigate and adopt solutions tailored for the long-term.”

QUESTION:  An academic publisher asks, “How can publishers, libraries, and other institutions make materials they control or hold available to users during this crisis while still respecting copyright’s scope and boundaries?”

ANSWER:  To meet the needs of educators, scholars, and others who need access to materials they can’t physically obtain, many institutions that either hold physical resources or control copyright are looking for ways to facilitate access and use.  Unsurprisingly, different stakeholders are exploring a variety of distinct approaches.  A tremendous number of publishers have opened up access to some or all of their materials, many of which have been collected at sites like Vendor Love in the Time of COVID-19 (https://tinyurl.com/vendorsupportedaccess).  Initially, this access was granted for the duration of the current spring semester, but as more and more institutions announce that social distancing will continue into the summer, the duration of this limited access may change.

While this access has been critical for research and teaching, some users have expressed concerns about the terms of use for some of these materials, particularly where an account must be created so that personal or institutional data is harvested from each user and in cases where a “free trial” is accompanied by an automatic renewal with immediate billing at unfavorable terms.  As everyone works to find the right balance of access and mission, a simple way to share is the Open COVID pledge available at https://opencovidpledge.org/.  The pledge is a commitment to make copyright and related intellectual property openly available for a limited time.  It can be implemented in a variety of ways including the suggested “Open COVID License” that makes all IP available “until one year after WHO declares the COVID-19 Pandemic to have ended.”

Digital libraries such as the Hathi Trust and Internet Archive have also worked to facilitate lawful access in ways that align with their individual missions.  In April the Hathi Trust offered their Emergency Temporary Access Service (ETAS), “which will allow students, faculty, and staff from eligible member libraries  to have online reading access to materials that are currently unavailable to them in their library collections.”  In their full statement, Hathi emphasizes that this access would be limited to libraries that were experiencing “unexpected or involuntary, temporary disruption to normal operations” and stressed that they were offering what they called a “careful and measured approach to this service, conforming to fair use under U.S. copyright law, in order to help students, teachers, and researchers continue to do their vital work.”  The full statement and details about the program is available at:  https://www.hathitrust.org/covid-19-response.

In contrast to this relatively moderate approach, the Internet Archive announced their National Emergency Library (NEL) at Archive.org/NEL in mid-March.  The NEL suspends the waitlist for books available from the Internet Archive “through June 30, 2020, or the end of the U.S. national emergency, whichever is later.”  The NEL also offers individual authors the ability to opt out by sending an email to [email protected] with “National Emergency Library Removal Request” as the subject line.

Some libraries such as MIT enthusiastically endorsed this approach while many publishers and authors decried it as “outright piracy.”  Dialogue around NEL became so heated that threats of violence and intimidation forced IA to make their list of endorsers private.  Criticism often centered around the fact that NEL is not affiliated with a physical library and offers unlimited access to in-copyright works, which does not follow the one-in-one-out limitations of even emerging systems like Controlled Digital Lending (controlleddigitallending.org).

While both Hathi’s ETAS and the Internet Archive’s NEL offer digital access in a time-limited fashion as a response to an unprecedented crisis, the differing approaches reflect the culture of the respective institutions.  Popular responses may also suggest the central importance of a library as a “steward of access” to a particular community and the values of librarianship more broadly.

QUESTION:  A school librarian asks, “Many of my teachers and fellow librarians use reading aloud as a central component of our educational work.  Does copyright permit us to continue this practice digitally during this global pandemic?”

ANSWER:  While the earlier discussion in this column about openly-available resources and educators’ reliance on fair use offers part of an answer, this question about reading aloud provides an excellent example of these issues in practice, as well as a model for a path forward.  Reading aloud is a core educational activity and many authors and publishers have explicitly stated their support for reading aloud digitally during COVID-19.

Regardless of any formal statements from a rightsholder, reading aloud is also a practice that fits comfortably within the scope of fair use when done as a transformative, noncommercial practice.  Despite that fact, many school librarians have expressed uncertainty or even outright disagreement with a fair use rationale for reading aloud online.  To clarify the ways in which fair use supports this practice, a group of copyright experts and educators have developed and shared a guide to translating classroom practices and taking advantages of new technologies to improve teaching and learning, reach, and equity.  (https://tinyurl.com/read-aloud-online)

The guide lays out the many transformative purposes of reading aloud and walks through specific practices that are likely to fit within the ambit of fair use such as “reading students in to” the virtual classroom or students reading aloud to develop and demonstrate mastery.  It also offers several examples of practices that are not clearly enabled including reading a textbook aloud as a way to replace purchase of commercial course materials or running a public site unconnected to a particular course that profits from advertising revenue.

While the statement was released in the wake of the transition to online learning to facilitate health during a time of crisis, it is not presented as time-limited or even primarily as a response to COVID-19.  For many students with disabilities, facing language barriers, on the wrong side of the digital divide, or otherwise marginalized in our society, it is always an emergency.  In a moment of global crisis, aggressive fair use and generous licensing can save the day, but publishers, librarians, and educators can and should be working together every day to be sure that we are all meeting our mission to teach, learn, and grow as a society.  

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