Home > Librarianship > Boston Library Consortium Networking Day 2013: Strategic Thinking about Copyright for Libraries in a Digital Environment presented by Kevin Smith, J.D.

Boston Library Consortium Networking Day 2013: Strategic Thinking about Copyright for Libraries in a Digital Environment presented by Kevin Smith, J.D.

This week I went to the annual networking day for the Boston Library Consortium, an association of 17 academic and research libraries working together to provide better information to our patrons.

The speaker this year was Kevin Smith, J.D., a lawyer librarian (yes, those exist) who is an expert in copyright law for libraries.  He works at Duke University and also writes a widely regarded blog on scholarly communication.  The following are my notes from his presentation entitled “Strategic Thinking about Copyright for Libraries in a Digital Environment.”  Please feel free to ask me for any clarifications (to the best of my ability) in the comments.

  • When we open a library and let the public in, we are taking risk. We plan and mitigate for them [risks]. Copyright should be no different. It’s not all or nothing.
  • Digital environment has rewards
    • opportunity to create new knowledge
    • new ways to reach community
  • Think about copyright in terms of the mission of your organization
  • In the past 5 years, there’ve been an unprecedented number of lawsuits [against libraries regarding copyright]. So far, libraries have won all of them.
  • Kirtsaeng vs. John Wiley
    • doctrine of first sale applies to any material manufactured with consent of owner in the US [ie it doesn’t apply to pirated copies]
    • this leaves the status quo in place
    • Courts like libraries. They understand and appreciate what libraries do.
    • Library Copyright Alliance
    • copyright cuts across partisan lines
  • New Challenges: MOOCs and mass digitization
  • Author’s Guild vs. Hathi Trust
    • AG argued that what HT was doing with the scans, not the making of the scans themselves, was what was wrong
    • AG argued that libraries shouldn’t be allowed to rely on fair use
    • Judge said no, libraries can rely on fair use
    • Judge said fair use can support a mass digitization project
    • Is it fair use to digitize for greater access? We don’t know yet/it depends
    • Courts like transformative use
    • purpose –> even if the work itself isn’t change, its purpose is now for a different audience
    • Judge said these instances are transformative:
      • indexing
      • preservation
      • access for persons with disabilities
  • Strategy for Mass Digitization
    • recognize some material is public domain
    • seek permission from prominent or large-scale rights holders
      • people who are most likely to object and are possible to find
      • watchfile –> writers, authors, and their copyright holders
    • rely on transformative fair use
      • improve the context of the transformation (frame it)
      • fair use supports good library practice and good pedagogy (teaching)
    • have a “talk to” policy
      • a talk to policy is not a take down policy
      • you can learn a lot from people who originally call angry
  • GSU and UCLA
    • 70 of 75 excerpts on ereserve were deemed fair use
    • strict length limit of 10% or 1 chapter, whichever is less, was used
    • if we’re within limit, the subsequent semester rule (ereserves can’t be duplicated from one semester to the next) is impractical and unnecessary
  • non-transformative fair use
    • not clear that new form of access is transformative
    • ereserves are generally not viewed as transformative
    • address with context and creativity
    • It doesn’t have to be transformative to be fair use. It helps but isn’t necessary.
    • 4 factors of fair use
      • purpose
        • usually in favor of libraries
      • nature
        • usually in favor of libraries
      • decidedly small
        • can go either way
      • impact on market of original
        • This usually weighs against as long as holder is providing way to get license for digital use. If there is no way to get a license then it weighs against the copyright holder.
  • Strategy for eReserves
    • balance forms of access
      • having all the readings available digitally looks bad
      • balance purchases, licenses, and fair use
    • for fair use, stick to small portions
      • 10% isn’t the law, but it’s a good rule of thumb
    • always keep course site closed
    • be creative
      • think about what makes your site a unique exercise in pedagogy
    • seek permission when larger excerpt is needed
  • Strategy for Streamed Videos
    • almost anything shown in face to face classroom is legal
    • students are not a market that rights holder is allowed to exploit
    • look for ways to enhance the case
      • works that are unavailable
      • works where it’s difficult to contact rights holder
      • special pedagogical needs ie language instruction
  • Strategy for MOOCs
    • two separate MOOC tracks:
      • teaching content
      • course readings
    • teaching content
      • clearly transformative fair use but it’s more limited
      • be as obvious about transformative use as possible
      • link to original when possible
      • seek permission
      • Remember creative commons is a form of permission. Use creative commons when possible. For example, if it can be illustrated with any picture of a tomato, find a creative commons one.
    • course readings
      • when seeking permissions, talk to the marketing guys! MOOCs are a great marketing opportunity
      • MOOCs are new and are a huge opportunity
      • remind faculty of open access options, such as putting their author’s final draft into the institutional repository
  • Conclusion
    • balance risk with reward
    • If we don’t take at least some risks, we won’t get any rewards
    • Avoid extremes
  • Q and A
    • Tiered pricing has no legal support for academic use
    • fair use argument is harder to make the larger the scale. ie if it’s for a 30,000 person MOOC as opposed to a 25 person face to face class.
    • copyright law defines fair use for educational purposes as “teaching activities in classroom or similar space normally dedicated to instruction”
    • Dissertations are a work of public scholarship. The university can set what requirements they want to for issuing degrees. Indefinite embargoes should not be accepted, although a case could be made for the traditional 6 month, 1 yr, 2yr, or 5yr. 5yr should be an exception though.
    • Gray markets, such as ebay and Costco, are very important industries.

For more information on fair use, copyright, and libraries, please see my posts Code of Best Practices in Fair Use for Academic and Research Libraries and On Open Access (OA) and Institutional Repositories (IRs).

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