Authors Alliance, together with Professor Ariel Katz and represented by Sana Halwani of Lenczner Slaght, participated in oral arguments before the Supreme Court of Canada in Access Copyright v. York University. Our arguments furthered the views we shared in our factum submitted last month.
The case involves a claim by Access Copyright, a Canadian copyright collective, which seeks to have York University comply with an interim tariff approved by the Copyright Board of Canada for works in its collection. In response, York University brought a counterclaim seeking a declaration that its guidelines for copying materials for education purposes constituted “fair dealing” under the Copyright Act of Canada (fair dealing is the Canadian analogue to fair use). The case raises the question of whether copyright collectives can force users to license content from them, even if the users prefer to comply with their copyright obligations in other ways.
At oral argument, we began by explaining to the court that Access Copyright does not represent the interests of all authors. Authors Alliance represents authors whose primary concern is their works having the greatest possible impact by reaching the largest possible audience. Unfortunately, the flawed approach to fair dealing taken by the courts harms these interests, and undermines our members’ efforts to support education and informed public discourse, by creating a chilling effect on the dissemination of copyrighted works. Our members’ dissemination goals are advanced by a robust approach to fair dealing.
We further explained how the fair dealing factors in this case were incorrectly dealt with because they were not anchored to specific instances of alleged infringement. The abstract nature of that inquiry was a result of the lower courts’ willingness to make a determination of infringement outside of an infringement action without the proper parties and necessary evidence. The trial court concluded that there were reproductions that entitled Access Copyright to royalties—that there was infringement—without identifying any particular reproduction that was not fair dealing.
One example of why this approach is problematic is illustrated by the way the lower courts handled the “effect of the dealing” factor. The effect of the dealing factor is intended to consider the market impact of the defendant’s actions with respect to the plaintiff’s work on the sale of or royalties from that particular work. But instead, the lower courts looked to the effect on the market generally. This general market approach untethers the analysis from the economic interests of the specific authors of the works at issue, instead bringing in irrelevant evidence of copying by other institutions and of the impact of the copying on the sales of other works.
This was a mistake and the lower courts should have addressed only whether the reproduced work adversely affects or is likely to compete with the original work, not with the market generally. We asked the court to find that it was an error of law to consider this factor in aggregate and at a market-wide level, and to reaffirm the correct approach to the effect of the dealing factor is an investigation into the effect of a specific dealing on a specific work.
Authors Alliance is grateful to Sana Halwani for skillfully representing our interests at oral argument, and to the entire Lenczner Slaght team, including Paul-Erik Veel, Jacqueline Chan, and Anna Hucman, for pro bono assistance with this intervention. We will keep readers updated on the outcome of the case.
Authors Alliance is pleased to announce that Carla Hesse has been elected president of the Authors Alliance Board of Directors.
Carla is a Professor of History at the University of California, Berkeley. A fellow of the American Academy of Arts and Sciences since 2009, she is a specialist in modern European History and the history of communication. She is the author of Publishing and Cultural Politics in Revolutionary Paris (1991) and The Other Enlightenment (2001), among other works.
Carla’s dedication to promoting authorship for the public good will be a tremendous asset to Authors Alliance. “Empowering authors in the public sphere is critical to our future,” said Carla. “I look forward to supporting Authors Alliance’s work to sustain and expand public access to our cultural and scientific heritage and to support the authors who are making that happen.”
The Board and staff of Authors Alliance are grateful to Pam Samuelson, co-founder Authors Alliance, for her service as Authors Alliance’s Board President since our founding. Under Pam’s leadership, Authors Alliance has established its presence as a voice advancing the interests of public-minded authors through policy interventions and educational outreach. Pam will continue to have a hand in shaping the future of the organization as she serves as a member of the Board.
“In the seven years since Authors Alliance launched, it has had much success in providing authors with several guides to address ways in which they can achieve their goals for their works and in serving as a public voice for authors who support fair uses and balanced copyright policies in response to various policy proposals,” said Pam. “There is, of course, much more work that needs to be done. I am grateful to Carla Hesse, my fellow co-founder of this organization, who will carry on leadership for Authors Alliance.”
We recently sat down with Benjamin Keele, Research and Instructional Librarian & Lecturer in Law at Indiana University and co-author (with James Heller and Paul Hellyer) of TheLibrarian’s Copyright Companion (2nd Edition), to learn more about his efforts to revert rights to the book. Thanks to their successful reversion, TheLibrarian’s Copyright Companion is now available for all to read under a CC BY 4.0 license.
Authors Alliance: What motivated you and your co-authors to request your rights back?
Benjamin Keele: When Jim, Paul, and I were writing the second edition of the Librarian’s Copyright Companion (Jim wrote the first edition), I had the notion that it would be great to release it open access from the beginning. However, we wanted the production, marketing, and imprimatur of a reputable publisher like Hein, so the book needed to make some commercial sense. Giving the book away eventually was always in the back of my mind. The Authors Alliance’s guide reminded me that it was possible to ask for the rights back, and after nearly ten years, I figured the book may have completed the commercial stage of its life.
I’m privileged enough to work in a research library, and I regularly hit paywalls and other access barriers to useful information. Making the book open access was a way we could make information about copyright available to anyone that found it useful.
AuthsAll: Can you walk us through the process of regaining rights and the arrangement you reached with your publisher?
BK: It was easier than I had expected. I emailed Hein’s editor we had worked with when preparing the book for publication. She then communicated with the other appropriate people within the company. Hein then supplied a contract amendment that eliminated future royalties and gave Hein a right of first refusal if the co-authors ever decide to write a third edition of the book. These conditions were acceptable, so we all signed the amendment.
AuthsAll:Is there anything that surprised you with the process?
BK: It had not occurred to me that there may be interest in a third edition on Hein’s part. The co-authors all agreed we don’t have the bandwidth at the moment for a new edition, but it is something to keep in mind for the future.
AuthsAll:How has reversion helped you (or how do you expect it will help you) reach your goals for your book?
BK: Our main goal for the book was to provide information on copyright law with a tilt toward users’ interests. When the book was published, our primary audience was other librarians whose institutions could buy copies for librarian professional development and for patrons. Now we can shift our audience to researchers who cannot borrow a copy for some reason or who are doing most of their research in digital resources. The reversion has let us make the book open access and with a permissive license. Maybe someone will choose to translate it or update portions. We have heard the book was assigned as a reading in library science courses. Making the book open access will make it easier to use for faculty and students.
AuthsAll:What advice do you have for other authors who might want to pursue a reversion of rights?
BK: First, focus on finding the right person to ask. Hein is a relatively small organization and we were fortunate that our editor was still with the company. I am trying to help my mom obtain a rights reversion for her book. It was published with a small publisher that has since been acquired by a much larger company, and it seems if you don’t find the right person to contact, your request can easily be ignored.
Second, approach this like a medium- to long-term project and expect things to take some time. On the publisher’s end, rights reversions are probably not a very high priority, so even once you’ve found the person who can make a decision, some patience will be necessary.
Third, think about what you’d like to do with your work when you obtain the copyright. Maybe the publisher will be interested in working with you in a way that will further your goals. You can also do some preparations; the co-authors had all reached agreement on where we’d share the book (through the Internet Archive and our respective institutions’ digital libraries), so once the copyright was reverted, it took just a few clicks to put the book online.
The case involves a claim by Access Copyright, a Canadian copyright collective, which seeks to have York University comply with an interim tariff approved by the Copyright Board of Canada for works in its collection. In response, York University brought a counterclaim seeking a declaration that its guidelines for copying materials for education purposes constituted “fair dealing” under the Copyright Act of Canada. The case raises the question of whether copyright collectives can force users to license content from them, even if the users prefer to comply with their copyright obligations in other ways.
As our factum explains, in the absence of specific allegations of copyright infringement from copyright owners, the lower courts should not have dealt with the issues of infringement and fair dealing. Because the lower courts did so without the proper plaintiffs, the result was a misguided approach to fair dealing that undermines users’ rights and the interests of many authors. Our factum also explains that even when their works are published under “all rights reserved” models, many of our members believe that their interests are best served with a robust application of fair use and fair dealing that does not unduly interfere with their dissemination goals, particularly in educational contexts.
On the issue of whether the approved tariffs are mandatory vis-à-vis users, our factum supports the Federal Court of Appeal’s finding that the approved tariffs bind copyright collectives but cannot be imposed on users as mandatory tariffs. We highlight some of the incoherent outcomes that would follow from the mandatory tariff theory, including the further marginalization of authors who are not a part of the collective’s repertoire.
The Supreme Court of Canada will hear oral arguments in the case on May 21, and Authors Alliance has been granted permission to present up to five minutes of oral arguments at the hearing. Authors Alliance is grateful to Lenczner Slaght attorneys Sana Halwani, Paul-Erik Veel, and Jacqueline Chan, as well as law clerk Anna Hucman, for pro bono assistance with this intervention.
Yesterday, Authors Alliance submitted a comment to the Copyright Office in response to a Notice of Inquiry regarding developing regulations to govern the copyright small claims procedure under the newly enacted CASE Act. In the past, we have spoken out in favor of a sensible copyright small claims process, but cautioned that the CASE Act could invite abuse and pose a high likelihood of harm to authors as both claimants and respondents. Now, Authors Alliance welcomes the opportunity to provide our feedback to the Copyright Office so it can work to ensure that the Copyright Claims Board (“CCB”), which will hear copyright small claims, is an efficient, effective, and respected forum, and moreover that it serves the individual authors and creators it is intended to benefit. We summarize our input below, and invite you to read our full comment for more detail.
Notice Sending
One of the areas in which the Copyright Office requested input is the contents of the notices that will be sent to respondents when a claimant makes a claim against them before the CCB. The CASE Act mandates that these respondents be given an opportunity to opt-out of the proceedings and instead have the claim proceed in federal court, and requires the CCB or an entity acting on its behalf to send respondents two separate notices notifying the respondent of the claim against them. Regarding the contents of these notices, Authors Alliance advocated for clear, comprehensive, and informative notices which will convey to the recipients the nature of the CCB proceedings and the consequences of failing to opt out. We also requested that the CCB include information on these notices about why a respondent might want to opt in or opt out. If a respondent fails to opt out or appear before the CCB, they may be subject to a default judgment that is subject to limited review in federal court. It is our hope that if the Copyright Office implements our suggestions, notices will not be ignored, which could leave unwary respondents on the hook for damages.
Opt-Out
The Copyright Office also sought guidance on the opt-out procedure for respondents who want to opt out of the CCB proceedings. Authors Alliance strongly urged the Office to make opting out as simple as possible for respondents of different levels of technical and legal sophistication. We suggested the Office allow respondents to opt out using a variety of methods: email, online form, over the phone, or by standard mail. We also encouraged the Office to develop a publicly available list of entities that intend to opt out in order to make the forum more efficient for claimants, who can check this list to see if the party they are pursuing a claim against indicates an intent to affirmatively opt out before filing a claim. Finally, we provided feedback on a special opt-out provision for libraries and archives, advocating for a robust opt-out provision that would allow libraries and archives to avoid the cost of defending excessive claims and spend their precious resources elsewhere to further the public good.
Limiting Cases
The Copyright Office also asked for input on whether and how to limit the number of cases that a given party can bring before the CCB over a calendar year. While Authors Alliance did not propose a specific threshold (which would be difficult if not impossible to do without knowing the what the CCB’s caseload will look like), we did commend the Office for its attention to this matter, and suggested that it impose meaningful limits on the number of cases that can be brought by a given party, with the overall goal of deterring unscrupulous actors while keeping the forum open and accessible to those who most need it—individual creators and authors seeking to enforce or defend their rights. We also suggested that the CCB implement regulations to deter “repeat players” from bringing repeated and ill-founded claims.
Guidelines on Unsuitability for the Forum and Award of Statutory Damages
Authors Alliance also suggested that the Copyright Office develop sets of guidelines for the CCB to use when determining whether a particular claim is appropriate for the forum and guidelines for the award of statutory damages. The CASE Act requires that the CCB dismiss claims that are not suitable for CCB adjudication, but does not provide much in the way of guidance as to how to determine whether the CCB is a suitable forum for a given claim. We suggested that the Office set guidelines to help the CCB determine whether a case is suitable for the proceedings, encouraging the CCB to dismiss complicated, fact-specific claims, and hear only straightforward infringement claims. Complicated, fact-specific issues like fair use are not appropriate for this streamlined procedure, and guidelines to this effect would go a long way to making the forum efficient and accessible. Regarding statutory damages, we suggested that the Copyright Office issue guidelines for the CCB to use when deciding whether to award statutory damages. In general, damages awards be proportional to the actual harm from the alleged infringement, rather than the maximum allowable damages under the statute ($15,000 per work and no more than $30,000 overall), which is often grossly disproportionate to lost licensing revenue the claimant would have received if the alleged infringer had obtained a license to use the work. We also suggested that the CCB should be particularly mindful to avoid statutory damages in cases of noncommercial uses.
UPDATE: In March 2022, the U.S. Supreme Court granted certiorari in Warhol Foundation v. Goldsmith, announcing it will hear the fair use case during next year’s term. Authors Alliance will continue to monitor this case and update our readers as it moves forward.
This year is shaping up to be a big one for copyright: a new batch of works entered the public domain, the 2020 year-end stimulus bill made several changes to copyright law, the Copyright Office is currently undergoing its triennial rulemaking process to grant exemptions to section 1201’s prohibition on breaking digital locks, and courts are considering ever more difficult issues related to fair use. Two recent cases that have been making waves in the copyright community are Google LLC v. Oracle America, Inc. and The Andy Warhol Foundation v. Goldsmith. Both cases discuss “transformativeness,” a key component of the fair use test, but reach different results: In the former, the Supreme Court ruled in favor of fair use, and in the latter, the Second Circuit Court ruled against fair use.
At Authors Alliance, we care about fair use because it helps authors meet their goals of seeing their works shared broadly, facilitating the use of copyrighted works in some circumstances for certain specific purposes such as research, commentary, and teaching. Fair use also allows authors to use existing materials to strengthen their own research, commentary, and scholarship. We offer short summaries and takeaways from these cases here to keep you apprised of the goings on in copyright and offer some guidance on how these decisions might impact fair use cases more directly related to authors of literary works in the future.
Earlier this month, the Supreme Court issued its long-awaited decision in Google v. Oracle, a case that has been percolating in the lower courts for years, which concerned the question of whether Google’s unauthorized use of computer code to which Oracle held the copyright constituted fair use. In the case, Google was appealing a ruling by the U.S. Court of Appeals for the Federal Circuit, which had held that Google’s use of APIs (also referred to as “declaring code”) was not fair use, despite a jury reaching the opposite conclusion. Google appealed to the Supreme Court on the question of whether APIs were protected by copyright at all and, if so, whether Google’s use of the code was fair.
In a decision by Justice Breyer, the Court skirted the question of whether APIs were copyrightable, but overturned the Federal Circuit’s finding of infringement, holding that Google’s use of the APIs was fair use. To come to this determination, the Court considered the four factors involved in fair use determinations. It found that declaring code was functional in nature: unlike the more creative “implementing code” involved in designing Android (and written by Google), the Court viewed the declaring code as equivalent to “building blocks.”
The Court also found that Google’s use was transformative in purpose and character because it used Oracle’s declaring code, as well as its own computer code, to create a new platform offering “a new collection of tasks operating in a distinct and different computing environment.” The Court stated that this was sufficiently transformative to overcome the commercial nature of Google’s endeavor—the creation of the massively popular Android operating system. The Court further found that Google used a small quantity of Oracle’s code relative to the total code it used to create Android, overcoming arguments that the 11,500 lines of Oracle’s code that Google used was quite a substantial amount. Finally, the Court considered whether Google’s Android usurped a market Oracle could have otherwise profited from, and decided that Oracle was not well-positioned to develop a mobile platform at the time and that Google had not usurped its market.
For authors who care about the widespread dissemination of their works and contributing to the commons of knowledge, Google’s fair use victory may seem a hopeful sign. But there is reason to believe that the holding will be of limited applicability in the future: It is not clear that it even applies to all software copyright issues. The decision—and importance of details such as the number of lines of code that were actually copied—shows how fact-sensitive fair use is. And the Court’s vision of transformativeness in the context of computer code is not an easy fit for other contexts, creating uncertainty as to whether and how the case will affect authors and creators in the future.
In late March, the Second Circuit Court of Appeals issued its opinion in The Andy Warhol Foundation v. Goldsmith, a case concerning a series of screenprinted images created by artist Andy Warhol depicting the late musical artist (formerly known as) Prince, reproduced in court documents and referred to as the Prince series. The first image of Prince that Warhol created was commissioned by Vanity Fair, and was based on a photograph taken by plaintiff Lynn Goldsmith, a renowned celebrity photographer. All of this was authorized pursuant to agreements between Goldsmith and Vanity Fair and between Warhol and Vanity Fair. The Warhol image that appeared in Vanity Fair included credit lines for both Warhol— the artist—and Goldsmith—the photographer of the work upon which Warhol’s was based. But Warhol did not stop there— he created fourteen additional works in the same style, comprising the Prince series that was the subject of the litigation.
In the case, Goldsmith sued the Warhol Foundation for infringement in the New York district court, alleging that the Prince series infringed on her copyright in the photograph of Prince. The district court found for the Warhol Foundation on fair use grounds, focusing on the transformative nature of Warhol’s silkscreen prints, which it believed “transformed Prince from a vulnerable, uncomfortable person,” as he was presented in Goldsmith’s photograph, “to an iconic, larger-than-life figure[.]” Warhol’s works also changed the image of Prince from a black and white, three-dimensional representation to two dimensional, colorful representations. Goldsmith appealed the ruling to the Second Circuit, which overturned the district court’s finding of fair use.
The Second Circuit disagreed with the district court that Warhol’s images were transformative. In its view, the district court improperly took on “the role of art critic,” making an artistic determination that Warhol’s works were transformative, rather than comparing the elements of the images and their purposes and characters. Under this approach, the Second Circuit concluded that the work retained “essential elements” of Goldsmith’s photograph, and was functionally the same work with a new aesthetic.
Unlike the Google case, the narrow reading of transformativeness in Warhol v. Goldsmith can more readily be applied in other contexts where other creative works could be broken down into their elements and compared. The Warhol court was not the only one in recent months to constrain the so-called “transformative use test,” and courts are increasingly moving away from considering transformativeness subjectively, and towards examining elements of the two works more objectively. Yet the Google decision took a broader approach to fair use, and one which, as a Supreme Court case, will be more influential to courts across the country. The variations in treatment of fair use in general, and transformativeness specifically, show how fair use is a context-specific determination. Creators who would like to learn more about how fair use applies to the common situations they face can turn to our fair use guide for nonfiction authors and the best practices guides specific to other communities of creators.
News about non-fungible tokens (“NFTs”) selling for eye-popping sums has been hard to miss. Nyan Cat, an iconic GIF of a cat with a Pop-Tart for a torso flying through space, sold for nearly $600,000. Twitter CEO Jack Dorsey’s first tweet—a mere five words—recently sold for nearly $3,000,000. And an NFT representing digital artist Beeple’s Everydays: the First 5000 Days collage set a record in March as the third most expensive artwork ever sold from a living artistwhen it sold at a Christie’s auction for more than $69,000,000.
While NFTs offer a new avenue for creators to get paid for digital assets, many have questions about what exactly an NFT holder “owns” in relation to the digital object and whether that ownership includes copyrights. This post explains these concepts and how they relate to ownership of physical objects.
NFTs are unique cryptographic assets that exist on a blockchain. NFTs facilitate the sale of digital items by providing owners of digital objects with a registration record to keep track of and verify the ownership of a digital file. Because NFTs can be used to represent unique digital items, they provide a way for individuals to own and collect “authentic” versions of digitally native assets.
Digital artists have struggled to monetize their creations since digital art can be readily copied and shared online in its original form. NFTs don’t change this: digital files represented by NFTs can still be copied and shared (setting aside the copyright implications of doing so). Instead, NFTs represent something that cannot be copied: the right to claim ownership of the underlying digital work. In this respect, NFTs can be used to create artificial scarcity by making only one NFT to represent a work, bringing “ownership” of a digital work of art more in line with ownership of a physical work of art.
Like physical art, the NFT itself can be sold. Because of the record keeping function of the blockchain, some NFTs ensure that artists get a percentage of the sales proceeds every time the ownership changes hands on the secondary market, a feature that is somewhat akin to an artist resale right, or droit de suite, that exists in many European countries and provides that artists receive royalties for their works when they are resold.
On its own, an NFT does not transfer intellectual property rights to the NFT holder. This means without an additional license or transfer of copyrights, the NFT holder does not acquire the rights to make and sell copies of the digital artwork. While this may seem surprising, this is analogous to how ownership works in the physical world: the ownership of a physical object is distinct from the ownership of copyright. The owner of a painting may do whatever she wants with the physical copy—sell it, give it away, etc.—but she does not acquire the copyrights in the painting simply by purchasing the physical copy. Without further authorization, the owner of a copyrighted painting typically cannot, for example, make and sell greeting cards with copies of the painting on them, which would be unauthorized reproductions of the work. In this way, ownership of the NFT is similar to owning a physical copy of any creative work, though the NFT owner simply has the token recording ownership rather than a physical manifestation of the object.
That said, a digital artist can elect to transfer or license some or all or of her copyrights to the NFT holder. For example, when MetaKoven bought the NFT representing Beeple’s Everydays at auction, he also acquired some rights to display the artwork online. While it is not yet clear what MetaKoven will do with these rights with respect to Everydays, in December he purchased a different collection of digital artworks by Beeple, which he is displaying in a digital museum (where he is also selling fractionalized ownership of the collection). Whether art lovers will find the virtual gallery experience approachable, let alone a satisfactory parallel to the analog world—and whether collectors and investors will continue to find appeal in ownership of NFTs—is yet to be seen.
Authors of written works wondering what opportunities they might have to take advantage of the NFT craze may look longingly at the recent sale of a New York Times column by Kevin Roose about NFTs that was itself turned into an NFT. Pitched as “the first article in the almost 170-year history of The Times to be distributed as an NFT,” it recently sold for $560,000 in a charity auction. Illustrating the concept that ownership of the NFT does not itself transfer any copyrights, Roose’s article makes clear “the NFT does not include the copyright to the article or any reproduction or syndication rights.” The NFT holder acquires no more rights to copy and share the article than someone who accesses the column through their New York Times digital subscription or who has a copy of the Times delivered each morning.
Unsurprisingly, commentators disagree as to whether the NFT hype is here to stay or will soon die down. In the meantime, NFTs offer a novel way for tech savvy creators to bring attention to and potentially monetize their digital works.
Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, is petitioning the Copyright Office for a new three-year exemption to the Digital Millennium Copyright Act (“DMCA”) as part of the Copyright Office’s eighth triennial rulemaking process. If granted, our proposed exemption would allow researchers to bypass technical protection measures (“TPMs”) in order to conduct text and data mining research on literary works that are distributed electronically and motion pictures. Yesterday, Authors Alliance participated in public hearings hosted by the Copyright Office to consider the merits of the proposed exemption.
Text and data mining (“TDM”) refers to automated analytical techniques aimed at analyzing digital text and data in order to generate information that reveals patterns, trends, and correlations in that text or data. TDM has great potential to enable groundbreaking research and contribute to the commons of knowledge. As a highly transformative use of copyrighted works done for purposes of research and scholarship, TDM fits firmly within the ambit of fair use.
But TDM researchers are currently hindered by Section 1201 of the DMCA, which prohibits the circumvention of TPMs used by copyright owners to control access to their works. Section 1201 makes TDM research on texts and films time consuming and inefficient—and in some cases, impossible—working against the promotion of the progress of knowledge and the useful arts that copyright law has been designed to incentivize.
At yesterday’s hearing, the clinical team from the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law School representing Authors Alliance testified about the details of the exemption and its immense value for TDM researchers. The team explained how section 1201 prevents those researchers from creating the corpora of works they need to discover new insights from text and data mining, interfering with their ability to generate new copyrighted works that add to our cultural understanding and advance human knowledge.
Specifically, clinic students, Ziyad Alghamdi, Tait Anderson, and Erin Moore, and clinical supervisor, Professor Erik Stallman, shared how section 1201’s prohibitions chill new research and hinder the progress of knowledge in at least three ways: 1) forcing researchers to limit datasets in a way that makes their findings less illuminating than they would otherwise be, 2) causing researchers to artificially constrain research to public domain texts, and 3) leading researchers to abandon potential TDM projects altogether.
Opponents of the exemption testifying in the hearing—representing publishers, the software industry, and content licensing organizations— raised concerns about whether TDM was fair use under copyright law, whether the proposed security measures for the TDM corpora were sufficient to allay their security concerns, and whether alternatives like pre-assembled TDM corpora would be adequate for TDM researchers.
Regarding fair use, Erin Moore testified that relevant case law firmly establishes TDM as a fair use, and that the fact that the use could have been officially licensed by the copyright holder does not mean the use is not a fair one. Moore also emphasized the noncommercial and educational nature of the uses TDM researchers seek to make under this exemption, classic features of fair use. To address opponents’ security concerns, Tait Anderson explained that “reasonable security measures” as used in our petition was concrete enough to require researchers to take precautions to prevent against public dissemination and unauthorized sharing, while not being overly prescriptive in order to accommodate a wide range of TDM projects with different levels of sensitivity in the underlying data. On the topic of existing alternatives to the TDM corpora the TDM researchers seek to compile, Ziyad Alghamdi highlighted the limitations of commercial TDM databases like Hathitrust, which are both limited in the scope of works they contain and how TDM research can be conducted using these works. TDM researchers are seeking this exemption in part because these databases are costly, difficult to use, and incomplete for answering research questions about contemporary literary works and films.
Other topics discussed during the lively hearing included whether the proposed exemption should align with similar carve outs for TDM research in Europe and Japan, how sharing corpora with affiliated researchers for peer review purposes might work, and how and whether literary works and films should be analyzed differently for the purposes of the exemption. The Librarian of Congress is expected to issue a final decision on the proposed exemption in October 2021. We will keep our members and readers apprised of any updates on our proposed exemption as the process moves forward. We’re grateful to law students from the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law School for their work supporting our petition for this new exemption.
This is the second in a two post series on how libraries have responded to the COVID-19 pandemic, one year after the American Library Association recommended that libraries across the country close. Last week, we discussed the ways in which libraries have supported communities and readers through expansion of traditional services and new initiatives aimed at preservation.
On March 17, 2020, the American Library Association (“ALA”) recommended that public libraries across the country close in response to the challenges posed by the COVID-19 pandemic. That same day, publishing conglomerate Macmillan (one of the so-called “Big Five” publishers that dominate much of the trade book market) announced it would end a controversial embargo on sales of e-books to libraries, also stating its intention to temporarily lower prices on some library e-book licenses “to help expand libraries collections in these difficult times.”
One year later, many libraries remain shuttered or have scaled back their hours, services, and capabilities. Yet e-book lending has skyrocketed, as e-books can be checked out by patrons from the safety of their homes. Libraries have adapted to this increased demand in a variety of ways despite limited resources and budgets. By increasing digital offerings with a special emphasis on making e-book lending available to patrons, libraries have pivoted to serve the needs of a community forced by external circumstances to turn to the internet for information, culture, and human connection.
Library E-Book Lending in the “Before Time”
Prior to the start of the pandemic, a dispute between publishers and libraries on the subjects of e-book pricing and availability to patrons had been quietly simmering. Between 2018 and 2019, four of the Big Five publishers changed licensing terms and raised prices of e-books for libraries. And the bookselling giant Amazon, which has launched its own publishing operations under the name “Amazon Publishing,” has taken an even harsher approach to e-book library lending: it refuses to sell its titles to libraries altogether. In a statement to the Washington Post, a representative from Amazon Publishing stated that it was “not clear to us that current digital library lending models fairly balance the interests of authors and library patrons[.]”
In general, libraries are able to loan out e-books because they acquire licenses to do so. Typically, a copy cannot be checked out by more than one patron at a time and only for a set number of times (with 26 and 52 checkouts being most common), and the licenses may also be limited duration, typically one to two years. Moreover, libraries pay up to five times more for e-books than consumers do. This custom reflects the fact that a library lends each e-book out multiple times, with multiple end readers rather than the single user who buys an e-book from Amazon or the iBook store. But libraries are typically charged the same price for physical books as are consumers, creating an imbalance in access across the two formats. This imbalance has become all the more salient during the pandemic due to the limitations on access to physical books and the budgetary constraints that are felt around the country.
By 2018, 90% of American libraries offered digital loans. As e-book library lending increased in popularity, publishers argued that the popularity of library e-book lending led to reduced profits. In 2019, Macmillan revealed that its revenue per library e-book read was down to “two dollars and dropping,” apparently “a small fraction” of what it makes on consumer purchases. Macmillan and other large publishers complained that the “frictionless” nature of e-book lending means that readers can acquire e-books with the same relative ease as purchasing those e-books. But there is reason to believe the fear that library e-book lending hurts e-book sales is ill-founded—in the first 10 months of 2020, when library e-book checkouts began to increase dramatically, the American Association of Publishers reported that e-book sales had increased by over 16% rather than dropping as more readers turned to library e-books.
Library E-Book Lending During the Pandemic
During the pandemic, library e-book lending increased manifold across the country. In April 2020, the Congressional Research Service reported that demand for e-books (both from libraries and readers who purchased e-books) had increased significantly, and that libraries and organizations were searching for lending models to address this increased demand. OverDrive, the nation’s leading e-book lending platform and maker of the “Libby” library lending app, saw checkouts increase by over 50% during the early months of the pandemic, and many individuallibrarysystems similarly saw large increases in e-book checkouts. New library partnerships with hoopla, another leading lending platform, have resulted in a 20% increase in membership for the platform. At the most basic level, this uptick in demand is not difficult to understand: without access to physical library spaces, e-book lending became for many patrons the best option to continue to access works at their local libraries.
To keep up with the increasing demand for e-book loans and better meet patrons where they are, libraries have adapted their programs and procedures to make e-book checkouts more accessible. Libraries began by investing in more e-book licenses and increasing spending on “digital resources.” As the pandemic progressed, libraries around the country began allowing patrons to apply for and obtain library cards online so that new patrons could access e-book offerings. Library systems have also increased investments in new e-book licensing models, such as the “concurrent use model,” which allow libraries to license a “bundle” of loans to meet high demand that do not expire. This model is particularly attractive for public school students, and it has been used to facilitate access to texts during remote learning. Another lending model that has increased in popularity during the pandemic is the deployment of “skip-the-line” or “lucky” copies of new and popular titles. This system allows patrons to choose to check out an e-book for a shorter checkout window, but to avoid long waitlists that can plague popular titles available for regular check out. And this summer, libraries worked to support patrons grappling with racial injustice following the killing of George Floyd and protests across the country by working with OverDrive to offer extended checkouts for books on anti-racism.
Publishers have also adapted their e-book license terms to be more library- and reader-friendly, recognizing the importance of library lending for the American public. By the end of March 2020, all of the Big Five publishers had announced relaxations of their e-book license terms, reducing prices on e-books for libraries by up to 50% and developing “cost per circulation” catalogues that allowed libraries to pay fees per e-book loan for certain titles rather than requiring an upfront payment for a license of limited duration. But these measures were largely intended to be temporary to help libraries struggling to meet their patrons’ needs during the pandemic, and where library e-book lending will go from here is uncertain.
An Uncertain Future for Library E-Book Lending
While progress has been made towards making knowledge and culture more accessible through relaxing barriers to entry for e-book library lending, it is unclear whether publishers and other intermediaries will return to the state of play prior to the pandemic.
Recognizing the need for fair and balanced license terms for library e-books, several states have introduced legislation mandating that publishers must offer libraries e-books that are available to retail consumers, and must do so on “reasonable terms.” And, in Maryland, such a bill was recently approved unanimously by the state legislature, and is currently awaiting final approval by the governor. Amazon Publishing, which until recently refused to budge on its ban on selling e-books to libraries, is reportedly in talks with the Digital Public Library of America to make Amazon Publishing titles available to libraries across the country through DPLA’s lending platform. ReadersFirst, a library organization that advocates for library users’ ability to use loaned e-books in the way they use print books, is optimistic that other publishers may follow suit and work to make their e-books more accessible to libraries and their patrons.
This is the first in a two post series on how libraries have responded to the COVID-19 pandemic, one year after the American Library Association recommended that libraries across the country close. Next week, we will discuss the ways in which libraries have expanded digital services, and notably e-book lending, for their patrons, and how this has served authors and readers.
On March 17, 2020, the American Library Association (“ALA”) recommended that libraries nationwide close in response to the challenges posed by the COVID-19 pandemic. One year later, many libraries remain shuttered or have scaled back their hours, services, and capabilities. But, asalways, libraries have persevered. By adapting existing services to the needs of their communities during this extraordinary time, libraries have supported patrons struggling to cope with fallout from the pandemic despite physical spaces being limited. And by increasing virtual offerings and launching new preservation initiatives, libraries have supported authorship and preservation of knowledge, helping authors to meet their goals of seeing their works reach broad audiences—even when in-person audiences remain a distant memory.
Supporting Communities
After the ALA recommended that libraries close their physical operations, many library systems sought to branch out to continue to serve the needs of their communities even without being able to provide physical access for patrons. Libraries across the country have expanded wifi access to parking lots, sent out “bookmobiles” to deliver physical books to patrons, and offered curb-side check out. Since the effects of the pandemic have been felt to different degrees across the country, local libraries have worked to tailor these expanded services to the needs of the communities they serve. In Santa Monica, CA, a library has begun offering “seed libraries” so patrons can experiment with gardening, and in Columbus, OH, libraries adapted a longstanding program that provides free lunches to students during the summer into a “grab and go” format consistent with public health guidelines. Libraries in dense urban areas, such as the New York Public Library, have also adjusted their “curbside” offerings to reflect the needs of non-driving communities.
Supporting Authorship
Libraries have also supported authorship during the COVID-19 pandemic by connecting authors to their readers and launching initiatives to collect and preserve new creations. Virtual book clubs and other events for patrons have helped connect readers with books in the absence of in-person events. These book clubs also foster community, replicating (albeit imperfectly) the human connection library patrons previously relied on physical library spaces to provide.
One of the major ways libraries have elevated authors’ voices during the pandemic is through organizing and hosting virtual author talks. These events are in many ways more accessible to readers than in-person talks, as patrons can view them without the time and expense of traveling to the library. The nature of the internet also means that virtual author events are in many cases not limited to patrons of a particular library, but open to all. Moreover, author talks can be recorded and preserved online permanently, helping authors reach more readers over time. The Library of Congress— the United States’ library—moved its 2020 National Book Festival online, and have made the author talks and other events at the book festival available online for all to view. The Free Library of Philadelphia has a podcast dedicated to author talks and other lectures. While this podcast pre-dated the pandemic, it has taken on a new salience as a means to connect authors with readers. The Brooklyn Public Library hosts a wealth of author talks for children and adults, occurring multiple times a week, and anyone can register to attend its upcoming author talks for free. The State Library of Massachusetts also moved its monthly author talk series online in early 2020, making recorded author talks freely available online and allowing anyone to register for upcoming talks.
Another method libraries have used to support authorship during the pandemic is the development of “quaranzines.” Quaranzines are a form of the “zine” publication, and have served as dedicated platforms for community members and authors to contribute creative expression made during the pandemic and help their works reach readers. Libraries, universities, historical societies, and other institutions have launched quaranzines of their own and made these available online.
The East Flagstaff Community Library in Flagstaff, AZ developed a quaranzine project for children in which five picture book authors worked together to develop 20 separate writing and drawing prompts for public school students. Students responded to the prompts, and the collected writings and drawings of the students were bound together in books. These children’s quaranzines are available online under a Creative Commons license so they can be shared and distributed for non-commercial purposes, with the intent that they be used as educational resources in the future.
In Arlington County, VA, the public library system has released weekly quaranzines documenting community members’ experiences during the pandemic. The City of Monona Library in Monona, WI also has an ongoing quaranzine project, and the St. Mary’s County Library system in St. Mary’s County, MD has an upcoming edition of its quaranzine planned to revisit the experience of living through the pandemic now that a year has passed since in-person operations were shut down. These initiatives give voice to authors and elevate voices of new or unpublished authors and writers, helping make authorship available and accessible to all.
Supporting Preservation
In addition to producing and preserving quaranzines and recorded author talks, libraries have taken other approaches to ensuring the preservation of knowledge and of the history of this extraordinary time. One such approach is creating archives of experiences of community members during the pandemic.
The New York Public Library has launched a “Pandemic Diaries” project that collects personal recollections of the past year to preserve a record of this pandemic. And libraries and other public institutions across the country have launched preservation initiatives to create a snapshot of this time in history: the University of Nebraska Omaha academic library has undertaken a similar project to the NYPL’s, with a focus on preserving the experiences of “the diverse voices of our community . . . that have previously been ignored in archives and the historical record.” The White Plains library in Westchester, New York is developing a new “Documenting COVID Collection” to remain part of the library’s permanent collection after the pandemic is over. And the Indiana Historical Society has launched a state-wide initiative to document Indianans’ experience living through the pandemic. Each of these archival projects seek to create a record to aid future writers, researchers, and historians, and ensure that the archives reflect the experiences and values of their community members. We encourage our members and readers to consult their local library, historical society, or academic library to see if similar projects are underway so you too can add your voice to the developing historical record of the past 12 months.
