ARL Urges US House of Representatives to Restore Net Neutrality

*Cross-posted from ARL News*

The Association of Research Libraries (ARL) is profoundly disappointed with the US Federal Communications Commission’s (FCC) repeal of the Open Internet Order, which takes effect today, June 11, 2018. ARL is calling on the House of Representatives to reverse the FCC’s decision and restore net neutrality, a bedrock of equitable access to information.

As of today, internet service providers (ISPs) can legally prioritize some voices—those willing and able to pay a premium—over others, such as nonprofit organizations or people holding minority viewpoints. Instead of ensuring that users can access the content of their choosing on an equitable basis, the FCC is now relying solely on market forces to regulate the flow of internet traffic. This will almost certainly lead to many blocking/paid-prioritization arrangements between ISPs and commercial entities.

One possible avenue to retain net neutrality is through the Congressional Review Act (CRA). Under CRA, Congress can overturn an agency’s decision with a simple majority vote in both houses within 60 legislative days of publication of the agency’s decision in the Federal Register. If both houses vote to overturn the decision, it will then require the signature of the President. The CRA resolution to reverse the FCC’s repeal of the Open Internet Order passed the Senate 52-47 on May 16. The House of Representatives can save net neutrality by taking up the issue and voting in favor of the similar CRA resolution introduced by Representative Doyle (D-PA). The House must act by mid-July if it is to pass a CRA resolution restoring the Open Internet Order.

“Net neutrality was essentially a nondiscrimination rule enabling the free and open exchange of ideas, thereby helping libraries fulfill their mission of advancing education, innovation, knowledge creation, and economic growth,” said Mary Ann Mavrinac, president of ARL and vice provost and the Andrew H. and Janet Dayton Neilly Dean of the University of Rochester Libraries. “We call on the House of Representatives to pass the CRA resolution restoring the open internet and we urge President Trump to sign it.”

Challenges to the FCC’s repeal of the Open Internet Order are also currently pending before the US Court of Appeals for the DC Circuit. ARL is working with other library and higher education associations to advocate for the restoration of strong net neutrality protections through submission of an amicus brief highlighting the importance of these rules for access to information, research, education, and freedom of speech.

Take action on this issue by emailing, calling, or tweeting to your Representatives and encouraging them to restore an open internet by voting for the CRA resolution. Battle for the Net provides an easy way to email, call, and tweet to your lawmakers.

Marrakesh Treaty Unanimously Supported by U.S. Senate Foreign Relations and Judiciary Committees

The United States is moving closer toward ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (Marrakesh Treaty).  The Marrakesh Treaty is a World Intellectual Property Organization (WIPO) based treaty that was adopted in June 2013, and went into force in September 2016 when Canada triggered entry into force as the 20th country ratifying or acceding to the treaty.  The Marrakesh Treaty provides minimum standards for limitations and exceptions to create and distribute accessible format works for persons who are blind or print disabled, and also allows for cross-border exchange of accessible formats. Cross-border exchange is a critical feature of the treaty and could greatly alleviate what is known as the “book famine,” a situation in which the National Federation of the Blind estimates that no more than 5 percent of published works are created in an accessible format.

The United States Senate has been actively considering the Marrakesh Treaty, and the Marrakesh Treaty Implementation Act (S.2559) was introduced by a bipartisan group of Senators on March 28, 2018, including Foreign Relations Committee Chair Corker (R-TN) and Ranking Member Menendez (D-NJ), Judiciary Committee Chair Grassley (R-IA) and Ranking Member Feinstein (D-CA), and Senators Hatch (R-UT), Harris (D-CA) and Leahy (D-VT).

During the Senate Foreign Relations Committee hearing on April 18, 2018, witnesses included Manisha Singh (Department of State), Allan Adler (Association of American Publishers), Scott LaBarre (National Federation for the Blind) and Jonathan Band (Library Copyright Alliance). During the hearing, Singh said that ratification of the Marrakesh Treaty was a “win for everyone,” and pointed out that it would allow people with print disabilities in the United States access to 350,000 additional works that they do not currently have access to.  She noted that while 35 other countries have ratified the treaty (now 37), none of the current parties have the breadth of the collections in the United States. Members of the Committee and the witnesses repeatedly noted that there is no known opposition to the Marrakesh Treaty.

The Senate Judiciary Committee reported the Marrakesh Treaty Implementation Act unanimously out of committee on May 10, 2018. Chairman Grassley’s prepared statement noted:

I’m glad we’re considering S. 2559 today, a bill to implement the Marrakesh Treaty. The United States signed the treaty in October 2013 to facilitate access to published works for blind, visually impaired, or otherwise print disabled persons. The Foreign Relations Committee held a hearing on the Treaty and is planning to move on the Treaty’s ratification process.

The Marrakesh Treaty Implementation Act is a consensus bill that was developed by both the Judiciary and Foreign Relations Committees with stakeholders within the publisher, library and print disabilities communities. We did this in consultation with the U.S. Patent and Trademark Office and the Copyright Office. As such, the bill enjoys the support of all these stakeholders, as well as other interested industry, copyright and public interest stakeholders. I particularly want to commend the National Federation of the Blind, the Association of American Publishers, and the Library Copyright Alliance for working with us in reaching an agreement on legislative text and proposed legislative history. We would not be here today without their efforts.

[ . . . ]

S. 2559 would go a long way in helping to give people with print disabilities—here in the United States and all over the world—greater access to materials in formats such as braille, large print and specialized digital audio files. It is a bipartisan, consensus bill that enjoys widespread support. It is supported by the copyright community as well as by the Administration.

Today, May 22, 2018, the Senate Foreign Relations Committee followed suit and also reported the treaty out of committee unanimously.  The Marrakesh Treaty will now go to the full Senate for consideration and needs at least a 2/3 majority to pass.  ARL urges the full Senate to support the Marrakesh Treaty, which will promote access to knowledge for those who are bind, visually impaired or print disabled both in the United States and abroad.

 

In Vote to Restore Net Neutrality Rules, Several Senators Note Importance of Open Internet for Research, Education and Equity

Today, May 16, 2018, the US Senate voted 52-47 to reverse the FCC’s decision that would eviscerate protections for net neutrality.  The Senate used a procedure known as the Congressional Review Act (CRA), allowing Congress to reverse an agency’s decision with a simple majority vote within 60 legislative days of publication of an agency’s decision in the Federal Register. ARL and other net neutrality advocates are celebrating this vote, which as of just a week ago was not assured of passage.

All 49 members of the Democratic caucus voted in favor of the discharge petition and resolution, originally introduced by Senator Markey (D-MA), and were joined by Republican Senators Collins of Maine, Kennedy of Louisiana and Murkowski of Alaska.

The debate on the floor (video available here) included several statements acknowledging the importance of net neutrality to a wide range of constituents, including the research, library and education communities.  For example, Senator Nelson (D-FL) pointed out that education is built on an open Internet:

. . . and that’s why educators and librarians throughout the country have rallied in favor of net neutrality, knowing that an Internet is no longer free and open is a lost education opportunity for our children. Florida’s colleges, universities, and technical schools rely on the free and open Internet for their vital educational and research missions. Unfettered access to the Internet is essential to research, research into issues as critical to the state and nation as medical research, climate change, sea level rise, whatever the research is.

Nelson went on to note the importance of an open Internet as an equitable issue:

Citizens throughout my home state rely on the internet for civic and social engagement. The internet is today’s social forum. It’s a tool that we use to stay engaged in the lives of family, friends, and peers. The internet can also be an equalizing force, and as such has been a place where communities of color have been able to tell their own stories in a way that they have never been able to tell before, and it has given minority communities the power to organize, to share, and to support each other’s causes every.

Senator Murray (D-WA) spoke as a former educator, pointing out:

Schools have worked very hard to improve access to high-speed connectivity for all students because they know from early education through higher education and through workforce training, students need high-speed internet in order to learn and get the skills that they need.

Senator Markey cited a wide range of stakeholders supporting net neutrality as a right:

This vote is a test of the United States Senate and the American people are watching very closely. This vote is about small businesses, librarians, school teachers, innovators, social advocates, YouTubers, college students and millions of other Americans who have spoken with one voice to say, “Access to the Internet is our right and we will not sit idly by while this Administration stomps on that right.” This vote is our moment to show our constituents that the United States Senate can break through the partisanship and break past the powerful outside influences to do the right thing. The right thing for our economy, the right thing for our democracy, the right thing for our consumers, and the right thing for our future. This is common sense to Americans around the country, with the only exception being telecom lobbyists and lawyers inside the beltway. How do I know? Because 86% of all Americans in polling agree that net neutrality should stay on the books as the law of the United States.

Minority Leader Schumer (D-NY) urged his fellow Senators to vote in favor of the CRA resolution and treat the Internet as a public good, ensuring that discrimination does not occur.  He noted that without net neutrality,

. . . the Internet wouldn’t operate on a level playing field. Big corporations and folks who could pay would enjoy the benefits of fast internet and speedy delivery to their customers, while start-ups, small businesses, public schools, average folks, communities of color, rural Americans could well be disadvantaged. Net neutrality protected everyone and prevented large ISPs from discriminating against any customers. That era, the era of a free and open Internet, unfortunately will soon come to an end . . .

It may not be a cataclysm on day one, but sure as rain, if Internet service providers are given the ability to start charging more for preferred service, they’ll find a way to do it . . .Let’s treat the Internet like the public good that it is. We don’t let water companies or phone companies discriminate against customers. We don’t restrict access to interstate highways saying you can ride on the highway, you can’t. We shouldn’t do that with the Internet either.

This Senate vote in favor of restoring net neutrality protections will put pressure on the House of Representatives, which will need all members of the Democratic caucus plus 22 Republicans to discharge the petition and force a vote. While action using CRA in the House of Representatives faces an uphill battle, public polling reveals that more than 80% of Americans support net neutrality and this issue is one that will likely be a prominent in the upcoming elections. Battle for the Net provides an easy tool for individuals to contact lawmakers and urge them to vote to reverse the FCC’s decision.

For a deeper dive into impacts of the loss of net neutrality for research and higher education as well as legal and policy issues, see the latest issue of Research Library Issues. For additional statements and materials related to today’s vote in the Senate, visit this post on InfoDOCKET.

#RedAlert: One More Vote Needed in the Senate to Save #NetNeutrality

In mid-December 2017, the Federal Communications Commission (FCC) voted to reverse the strong net neutrality protections that had been put into place by the 2015 Open Internet Order. Since that time, advocates for net neutrality—an important concept based on the principle that internet service providers (ISPs) should permit access to all lawful content, without favoring some content over others—have continued to fight to ensure that the open character of the internet remains.

In addition to challenging the FCC’s actions through litigation, one possible avenue to retain net neutrality protections is through a process in Congress known as the Congressional Review Act (CRA). Under CRA, Congress can overturn an agency’s decision through a simple majority vote in both houses within 60 legislative days of publication of an agency’s decision in the Federal Register. It would then require the signature of the President.

Soon after a CRA resolution was introduced by Senator Markey (D-MA) to reverse the FCC’s decision, the Senate version garnered enough co-sponsors to force a vote under Senate rules and Minority Leader Schumer (D-NY) has vowed to hold a vote. To date, 50 senators have co-sponsored the resolution, including all 49 members of the Democratic caucus and Senator Collins (R-ME). Only one more vote is needed for CRA to pass the Senate and with today’s discharge petition, a vote will take place in the Senate by June 12.

An open internet is fundamental to ensuring that access to information remains equitable and that some content is not privileged over others. Net neutrality is based on critical non-discrimination principles, promoting freedom of speech and the Senate could take a welcome step in confirming the importance of an open internet. For a deeper dive into impacts of the loss of net neutrality for research and higher education as well as legal and policy issues, see the latest issue of Research Library Issues.

To help secure one more vote—the critical vote for passage of CRA in the Senate—contact your Senator. Battle for the Net provides an easy way to e-mail, call and tweet your lawmaker.

Senate Foreign Relations Committee Holds Hearing on the Marrakesh Treaty for Persons With Print Disabilities

On March 15, 2018, the Marrakesh Treaty Implementation Act (S. 2559) was introduced in the US Senate by Judiciary Committee Chair Grassley (R-IA), Ranking Member Feinstein (D-CA), Foreign Relations Committee Chair Corker (R-TN), Ranking Member Menendez (D-NJ), and Senators Hatch (R-UT), Harris (D-CA), and Leahy (D-VT), to ratify and implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (ARL’s press release on the introduction of the implementing legislation is available here).  Today, April 18, 2018, the Senate Foreign Relations Committee will hold a hearing on the Marrakesh Treaty.  Witnesses include Manisha Singh (Department of State), Allan Adler (Association of American Publishers), Scott LaBarre (National Federation for the Blind) and Jonathan Band (Library Copyright Alliance).

The Marrakesh Treaty, concluded in June 2013 and signed by the United States in October 2013, provides minimum standards for limitations and exceptions to copyright law to create and distribute accessible formats for people with print disabilities and allows for the cross-border exchange of these formats. The treaty is designed to address the “book famine,” a problem where less than 5% of all published works are created in an accessible format in the United States, a figure that drops considerably in some developing countries. The treaty is in force, with 35 contracting parties, currently: Argentina, Australia, Botswana, Brazil, Burkina Faso, Canada, Chile, Costa Rica, Democratic People’s Republic of Korea, Ecuador, El Salvador, Guatemala, Honduras, India, Israel, Kenya, Kyrgyzstan, Liberia, Malawi, Mali, Mexico, Mongolia, Nigeria, Panama, Paraguay, Peru, Republic of Korea, Republic of Moldova, Russian Federation, Saint Vincent and the Grenadines, Singapore, Sri Lanka, Tunisia, United Arab Emirates, and Uruguay.

The implementing legislation makes some technical changes to Section 121 of the Copyright Act, including expanding the scope of works that may be reproduced and distributed to dramatic works or musical compositions fixed in text or notation. Section 121 would apply for domestic activity regarding the creation and distribution of accessible format works. The bill also creates a new Section 121A to address activities involving cross-border exchange.

Ratification and implementation of the Marrakesh Treaty is critical to improving access to information and culture for those who are blind, visually impaired or otherwise print disabled. The treaty will not only assist those living in countries with extremely limited collections of accessible formats, but will provide significant benefits to those in the United States. The United States will be able to enhance its own collections of accessible format works, through exchange with countries with a common language, such as Australia and Canada, but will also benefit from the ability to import works in a foreign language, such as the nearly 50,000 accessible titles from Argentina.

ARL urges the Senate to quickly ratify the treaty, which will greatly enhance the ability of libraries and other authorized entities to serve those with print disabilities. Ratification and the implementing legislation is supported by a broad group of stakeholders, including organizations representing those who are blind, libraries and authorized entities and publishers.

For additional reading:

Fair Use/Fair Dealing Week 2018 Highlights Balance in the Copyright System

*Cross-posted from ARL News*

The fifth annual Fair Use/Fair Dealing Week took place February 26–March 2, 2018, growing to 153 participating organizations—as well as numerous individuals—celebrating the important and flexible doctrines of fair use and fair dealing worldwide. This year’s event was organized by the Association of Research Libraries (ARL) and participants included universities, libraries, library associations, and many other organizations, such as Authors Alliance, the Center for Democracy & Technology, the Electronic Frontier Foundation, the R Street Institute, and Re:Create. Sixty ARL member institutions contributed a wide range of resources this year. Fair Use/Fair Dealing Week was observed around the globe by participants in such countries as Australia, Canada, Colombia, Greece, and the United States.

Throughout the week, participants celebrated the essential limitations and exceptions to copyright that fair use and fair dealing provide, allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances. While fair use and fair dealing are employed on a daily basis, Fair Use/Fair Dealing Week is a time to promote and discuss opportunities presented, share successful stories, and explain these doctrines.

Each day, new blog posts and other resources were produced and shared and institutions hosted a variety of live events, such as panel discussions, film screenings, button- and kaleidocycle-making stations and more. Daily roundups and additional resources are available on the Fair Use/Fair Dealing Week website. There were 90 news and blog posts, three infographics, three videos, a podcast, and more shared over the course of the week. Below are some highlights.

Fair Use/Fair Dealing Week 2019 will take place February 25–March 1. Plan to participate!

Resources

ARL released the infographic, “Fair Use Promotes the Creation of New Knowledge.”

The Canadian Association of Research Libraries (CARL) released a double-sided infographic—one side pertaining to fair dealing generally and one on fair dealing and education in Canada—“Fair Dealing in Canada: Myths & Facts.” Additionally, CARL launched an expanded website and social media campaign for Fair Dealing Week; the new website includes a compelling testimonials page, highlighting the importance of fair dealing from many different sources.

The International Federation of Library Associations and Institutions (IFLA) released the infographic, “Fair Use and Fair Dealing for Libraries.”

Harvard University released a new comic book, this one on the Authors Guild v. Google case.

Creative Commons Australia produced a Storify recap of its favorite posts on Fair Use/Fair Dealing Week.

Audio/Video

Re:Create released a new episode of its Copy This Podcast, “Copying is Human Nature,” which features Laura Quilter, copyright and information policy librarian at University of Massachusetts Amherst.

The Association of College & Research Libraries (ACRL) released a recording of its webinar with Carla Myers, scholarly communication coordinator at Miami University Libraries in Ohio, “Can’t You Just Say Yes? Answering Copyright Questions about Fair Use for Patrons.”

Massachusetts Institute for Technology created a printable fair use kaleidocycle with video instructions on how to create it.

University of Winnipeg released a Fair Dealing Week video.

University of Lethbridge posted a video about “Fair Dealing in the Classroom.”

News/Blog Posts

The Center for Democracy & Technology posted a clever “conversation” about fair use entirely made up of quotations from other papers, statements, court opinions and more, entitled “I Didn’t Write This Conversation about Fair Use.”

R Street Institute posted, “The Creative Side of R Street,” illustrated with over a dozen GIFs.

There were also several posts related to fair use and trade agreements, including one by attorney Jonathan Band; one by Sean Flynn, associate director for the Program on Information Justice and Intellectual Property at American University Washington College of Law; and one by Timothy Vollmer, senior manager of public policy at Creative Commons.

Here’s an interview with copyright expert Peter Jaszi, which includes a question about the current work on a Code of Best Practices in Fair Use for Software Preservation. The National Library of Medicine’s blog post covers a range of relevant fair use issues and also references the software preservation project.

Aligning with ARL’s infographic theme for 2018, there were quite a few posts about fair use and user-generated content or new knowledge, including the University of San Francisco’s post on fan fiction; University of Virginia’s event on “The State of the Remix @UVA;” a post on the Copyright at Harvard Library blog featuring mash-up videos and entitled “Fair Use and User Generated Content;” Re:Create’s Creator Profile featuring Sarah Loch, a fanfiction writer; the Organization for Transformative Works discussion of the Copy Me project with two creators interested in fan works; and this post by Jonathan Band about the musical Something Rotten.

The Authors Alliance posted several times during the week, including an updated Fair Use FAQ and an announcement of the print release of the guide to Fair Use for Nonfiction Authors. The Center for Media and Social Impact also had several blog posts throughout the week.

In Canada, University of Toronto law professor Ariel Katz shared a draft of his forthcoming book chapter, “Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?” Michael Geist, law professor at University of Ottawa, posted each day of the week.

Fair Use/Fair Dealing Week 2018: Day 5 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 5 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Resources:

Massachusetts Institute of Technology, Make a Fair Use Kaleidocycle

Infographics

IFLA, Fair Use and Fair Dealing for Libraries

Blog Posts

Angel Antkers & Susan Miller on Authors Alliance blog, “Fair Use and the Digital Millennium Copyright Act” cross posted on Colorado Law Samuelson-Glushko Technology Law & Policy Clinic

Australia Digital Alliance, “It’s an important Fair Use/Fair Dealing Week for Australia

Canadian Association of Research Libraries, “Fair Dealing Week 2018 Wrap-Up

Krista Cox on ARL Policy Notes, “Fair Use and Captioning for Those Who Are Hearing Impaired

Michael Geist, “Fair Dealing and the Right to Read: The Case of Blacklock’s Reporter v. Canada (Attorney General)

Anne Gilliland on Scholarly Communications Office Intersections, “Grateful for Fair Use: Combining Text and Images

IP Quail, “Fair Use/Fair Dealing

Colleen Lyon on Open Access at UT, “Fair Use Wrap Up

Carla S. Myers on Copyright at Harvard Library, “Day 5: Fair Use and Course Reserves: Fact and Fiction

Open Library Greece, “Fair Day #fairuseweek 2018: February 26-March 2

Claudia Rebaza on the Organization for Transformative Works, “OTW Guest Post: Ioana Pelebatai & Alex Lungu

Katharine Trendacosta on the Electronic Frontier Foundation Deeplinks, “Fair Use Protects So Much More Than Many Realize

Fair Use and Captioning for Those Who are Hearing Impaired

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Under the Digital Millennium Copyright Act (DMCA), proponents must file for an exemption every three years to allow for the circumvention of technological protection measures (TPMs) to do things that are otherwise completely lawful under copyright. For example, groups representing those who are visually impaired must ask for the right to circumvent TPMs in order to enable the text-to-speech function on e-readers, even though they do not have to ask for permission to create accessible format copy works for hard copy materials. Even if the use is clearly a fair use, because of ambiguity in the text of the DMCA, individuals or groups must request exemptions for non-infringing uses.

ARL, as part of the Library Copyright Alliance (LCA), is consistently involved in the triennial rulemaking process. Among other petitions, LCA joined in a request to allow for circumvention to create accessible formats of motion pictures to those with disabilities, included through captions and audio descriptions.

Recently, rightsholders submitted opposition to exemption requests and the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and the Association of American Publishers (AAP) oppose the exemption for captioning.

The MPAA argues against captioning qualifying as a fair use. In doing so, the MPAA relies on the Register of Copyright’s conclusion in the 2012 rulemaking process that, “neither Sony-Betamax nor the Copyright Act’s legislative history suggests a rule that all reproduction, adaptation and distribution for the purpose of accessibility is fair use.” The MPAA also criticizes the citation of Authors Guild v. HathiTrust as authority favoring a fair use determination.

The MPAA claims that HathiTrust is not applicable because HathiTrust was making text accessible for people that have print disabilities rather than hearing disabilities:

In HathiTrust, defendants were, among other things, making “text-to-speech” versions of literary works so that they would be accessible to the print disabled. Altering motion pictures is a significantly different undertaking, the result of which is likely a derivative work that involves a creative interpretation of the underlying work. Thus, the proponent’s reliance on HathiTrust is misplaced.

While it is true that the facts in HathiTrust involved accessible formats for those with print disabilities rather than those with hearing impairments, the decision in HathiTrust is still highly relevant. Ultimately, the purpose in creating an accessible format work for someone who is visually impaired and an accessible format work for someone who is hearing impaired is the same: to allow someone with a disability to have access to information and culture. Without accessible formats, those with hearing impairments—just as those with visual impairments—would lack access. Indeed, the court in HathiTrust cites the Supreme Court case, Sony Corp. v. Universal City Studios for the proposition that creating an accessible format work for the convenience of a person with a visual disability does not require anything more than the purpose of entertaining or informing to render the use fair.

Creation of captions for those with hearing impairments is clearly analogous to the creation of a Braille or audio format for someone with a visual impairment. It’s unfortunate that rightholders would argue against accessibility for the hearing impaired as a fair use. Without available captions, those who are deaf or hearing impaired do not have equal access to information.

Fair Use/Fair Dealing Week 2018: Day 4 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 4 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Videos

ACRL, Webcast Archive of ACRL Presents: “Can’t you just say Yes?” Answering Copyright Questions About Fair Use for Patrons

University of Lethbridge Library, “Fair Dealing in the Classroom

Blog Posts

Authors Alliance, “Revisiting Georgia State: Fair Use and Academic Incentives

Jonathan Band on ARL Policy Notes, “Can’t Get Away From Fair Use

Gabrielle Barr, Christie Moffatt and Rebecca Goodwin on NLM Musings From the Mezzanine, “NLM Celebrates Fair Use Week

Lindsay Boyd on Canadian Alliance of Student Associations, “Fair Dealing in Education: A Firm Foundation Supporting Canadian Educational Content

Brandon Butler on The Taper, “How Is an App Like a Player Piano? And Does That Help the Fair Use Case for Software Preservation?

Krista L. Cox on Above the Law, “Celebrating Fair Use: Interview with Peter Jaszi” cross posted, in part, to ARL Policy Notes

Creative Commons Australia, “Storify: 2018 Fair Use Week Recap: useful for “aus” to think about

Sean Flynn on InfoJustice, “Comments to the Mexican Senate on Copyright Provisions in the NAFTA Renegotiation

Michael Geist, “Fair Dealing Support for News Reporting and Public Debate: The Case of Warman and National Post v. Fournier

Kevin Gunn on Catholic University of America University Libraries News and Events, “Fair Use Week 2018

Michael Lemley on Organization for Transformative Works, “Fanworks, Fair Use and Fair Dealing

Amy Manns on DeSales University News, “On Display at Trexler Library: Fair Use Week

Re:Create, “Creator Profile: Sarah Loch, Fanfiction Writer

University of Manitoba Health Sciences Libraries News, “Fair Dealing Questions? Ask the Copyright Office!

Micah Zeller on Washington University in St. Louis Scholarly Communication, “Fair Use and WashU: Part 2

Celebrating Fair Use Week: An Interview With Peter Jaszi

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

There are several leaders and pioneers in the field of copyright fair use and Peter Jaszi was kind enough to agree to be interviewed for Fair Use Week.  Peter Jaszi is a professor emeritus at the American University Washington College of Law and an expert in copyright law and fair use. His distinguished career has included numerous projects designed to promote the understanding of fair use in various communities (readers of this blog will likely be most familiar with the ARL Code of Best Practices in Fair Use for Academic and Research Libraries). He is also the co-author of the book, Reclaiming Fair Use: How to Put Balance Back In Copyright, a new edition of which will be published later this year by the University of Chicago Press.

The full interview is rather long, so I wanted to pull out just a few excerpts.  If you want to read the interview in its entirety, in which we talk about everything from every day fair uses, misconceptions about the doctrine, best practices, and career advice, you can visit this post on Above the Law.

Peter Jaszi responding to criticisms about the uncertainty around fair use:

KC: I think there are some other common misconceptions about fair use. Let’s walk through a couple of them. How do you respond to criticisms that fair use is too uncertain and difficult to use because it’s analyzed on a case-by-case basis?

PJ: Fair use isn’t any more difficult to apply or uncertain than any other legal doctrine that requires us to apply a general standard to specific facts — negligence in tort law is an example.   I’d suggest that “certainty” isn’t (and probably shouldn’t be) attainable here. What we should want and can get is some level of predictability, based on accumulated legal precedents. Given the fact that most fair uses are never challenged, the case law doesn’t accumulate at a very fast rate. Since the Supreme Court’s big turn in 1994, there have been no more than 25 or 30 important appellate cases on the subject. Many specific areas in which fair use obviously applies, to at least some extent, remain unexplored by federal judges, and are likely to stay that way. But consumers of law (whether laypeople or lawyers) can and should reason by analogy to more-or-less like cases, and make sound predictions based on the methodology employed in those cases. That’s how law — and confidence in law — develops in our “common law” system, and after 25 years or so of the new fair use jurisprudence, we’re in a position to make accurate predictions about how a court would rule — in the unlikely event that it ever came to that — in the vast majority of specific instances. So I really wish we could put this particular misconception to rest — along with Lawrence Lessig’s famous quip that fair use is just “the right to hire a lawyer,” which wasn’t strictly accurate in 2004 and certainly isn’t today. Professor Lessig has disowned this dismissive take on the power of fair use, and the rest of us should, as well.

On software preservation:

KC: Currently, you are working on a project involving best practices in fair use for software preservation. Why is this an important project?

PJ: The first 50 years of software history are of enormous interest today. For those studying software itself (from cultural and technological perspectives), the ability to analyze and interact with vintage software is essential. The same is true, of course, where investigations of software-dependent born digital materials (from text documents to CAD files) are concerned. So finding, saving and making available old programs are crucial. In this race against time and the forces of deterioration, however, copyright is a barrier, since practically every action that an archive or library might want to undertake to build a software collection or make accessible is regulated by copyright law. That’s where fair use comes in, of course, and why we are excited to be working on a Code with members of the software preservation community under the auspices of the Association of Research Libraries, and grateful that the support of the the Alfred P. Sloan Foundation makes this work possible.

His favorite fair use case:

KC: One final question. Do you have a favorite fair use case?

PJ: From a purely sentimental standpoint, I’d say Authors’ Guild v. HathiTrust, where I had the honor to be part of a great legal team working for a wonderful client, the National Federal of the Blind. But taking a slightly more academic view, I’d probably say Bill Graham Archives v. Dorling Kindersley, a landmark 2006 Second Circuit decision that gave us the fullest glimpse we had had up to that time of where fair use analysis focused on the question of transformativeness was heading.