April 23, 2018

Columbia Panelists Urge Vigorous Exercise of Fair Use

Librarians and educators attending two panel sessions at Columbia University on Tuesday were told that they must employ fair use in a reasonable and robust manner in order to avoid deforming their mission to advance knowledge.

The event, which was organized by the university’s Copyright Advisory Office under the direction of Kenneth Crews, brought together a range of experts who urged the audience to use rational risk management when making decisions about fair use, and to embrace their rights even though the copyright legal landscape is often ambiguous. In fact, as James Neal, Columbia’s university librarian, said: “Ambiguity is our friend.”

Sheree Carter-Galvan, the associate general counsel at Yale University, starkly illustrated the unfortunate and absurd outcomes that can result when fair use is not exercised in a resolute way.

In the early stages of Yale’s open courseware project, Open Yale Courses, the university was too apprehensive about making a mistake. Galvan played a video excerpt from a course given by Professor Langdon Hammer in which he was discussing various images of Robert Frost. But the university had decided not to show the images for fear of infringing copyright, which left Hammer lecturing and referring to pictures that were never seen.

“We were not alone in making these types of choices, and I think we reached a point of desperation because we knew we were compromising the experience,” Carter-Galvan said. “This was not working.”

The uncertainty and fear that distorted the decision making at Yale led to the creation of a code of best practices for open courseware at Yale, and the same spirit animated the decision of the Association of Research Libraries to create a code of best practices for academic and research libraries.

The ARL code, which was released in January, was two years in the making, and it grew from interviews with 90 librarians at 64 academic and research institutions, as LJ has reported.

“What we found is insecurity is everywhere and hesitation is everywhere, and those two things have extraordinary costs,” said Brandon Butler, the ARL’s director of public policy initiatives. “There are lots of projects not happening,” he said.

When a strong sense of fair use was absent, risk aversion grew in its place, Butler said, as many diffident librarians found themselves serving as the institution’s de facto copyright decision maker.

“The goal of this document, in some sense, is to make risk management rational, to take some of the fear out and put a real understanding of how fair use can reduce the risk involved in projects,” Butler said of the ARL code. The code and supplementary material are on ARL’s website.

Butler said the code could act as a “grounding for solidarity,” and the code itself says: “Indeed, simply by articulating their consensus on the subject, academic and research librarians have already lowered the risk associated with these activities.”

Documenting community practices in this way, through an environmental scan, was a key element in the fair use strategy of ARTstor, the arts and humanities digital library,  according to Gretchen Wagner, ARTstor’s general counsel.

The library makes 1.5 million images available to 1400 institutions, and the library relies on fair use for at least 20 percent of the images in the library, Wagner said. Given the library’s scale and the tradition of permissions around images, there was no way the library could obtain permission in every instance — absent an easy and efficient mechanism to do so.

Fair use, then, became a primary mechanism to achieve the educational mission of ARTstor, and the environmental scan was useful in understanding the landscape.

However, community practices are not necessary to exercise fair use, Wagner added.

“You don’t have to point to those types of practices, and you don’t have to point to what others are doing,” she said.

Wagner said posting a copyright statement, stating terms and conditions of use, employing DRM technology, are also not necessary but they can be part of an overall fair use strategy, since they help demonstrate good faith, which is becoming an increasingly important prong in judicial reasoning alongside the four factors set out in Section 107.

“These protections are reasonable accommodations that don’t hinder your broader mission, that are designed to demonstrate that you are trying to be respectful of copyright owners’ interests,” she said.

But for academic librarians to engage on this issue, they require institutional support, which is not always forthcoming, according to Lisa Rose-Wiles, the co-chair of the Copyright Action Group and a science librarian at Seton Hall University Libraries.

“The big thing that’s lacking is dedicated expertise, someone whose job this is and who’s comfortable making these decisions,” Rose-Wiles said. For librarians to have confidence about exercising fair use, institutions will need to spend money, whether it is hiring an expert or training existing people, she said.

“Best practices certainly help, but I think there’s a lot more that we on the firing line need before we are comfortable standing up to the bullets,” Rose-Wiles said.

Support from a university’s general counsel may not be as full-throated and unhesitating as librarians would like precisely because they have a different institutional perspective.

“We are conservative because we have a big task in front of us and that’s to protect the university and also to protect the individuals inside the university,” said Carter-Galvan of Yale. “But I do believe what these codes have done is provide legal counsel with more information about what’s actually happening so we can provide better advice,” she said.

However, the greatest threat to fair use may be a contract sitting before a librarian with a pen. Although the odds of a lawsuit, financial costs, public benefits, licensing alternatives and other factors are in the scales along with fair use when analyzing the risk of a particular project, the first question Robert Clarida asks his clients is whether a contract affecting fair use is in place.

“There is case law that says if a contract takes away your fair use rights, that’s enforceable folks,” said Clarida, a partner at the New York firm of Reitler, Kailas & Rosenblatt. “If the agreement is written in a Draconian and detailed way you may not have a lot of fair use left to argue about,” he said.

Neal, the university librarian, said that contracts should be negotiated aggressively in order “to guarantee capacity and capability which exceeds fair use in the contracts that we sign.”

There were also suggestions among the panelists of federal legislation to change the copyright laws and of more collective action, such as forming a fund for fair use litigation that mattered most to the broader community.

Regardless, all agreed on the need for heightened awareness and thoughtful evaluation. As Crews, the event’s organizer, wrote in the just released third edition of his book Copyright Law for Librarians and Educators:

“If we do not manage copyright to our advantage, we will lose valuable opportunities for achieving our teaching and research missions. If we do not manage our own needs, someone else will make the decision for us.”

Michael Kelley About Michael Kelley

Michael Kelley (mkelley@mediasourceinc.com) is the former Editor-in-Chief, Library Journal.

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