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Reading Aloud: Fair Use Enables Translating Classroom Practices to Online Learning by Meredith Jacob et al is licensed under a Creative Commons Attribution 4.0 International License and is available at https://tinyurl.com/read-aloud-online My book chapter from Copyright Conversations, published by ACRL, is available here: Fear and Fair Use:  Addressing the Affective Domain         Sara Benson: Hello and welcome to another episode of Copyright Chat. Today, I wanted to take a moment to discuss with you some questions about reading aloud in the era of COVID-19. Lately, many folks have tried to engage with their students in an online forum. Why have we begun to do this? Usually, librarians in public libraries, school libraries, and even academic libraries will engage with their students in face-to-face classrooms on very frequent basis reading aloud sometimes in groups, sometimes with the librarian directing but usually without any fear of retribution and exercising their rights under the face-to-face teaching exception of copyright. When teaching in a face-to-face environment the copyright exception is rather clear. The Copyright Act provides that anyone may read aloud in the course of face-to-face teaching in a non-profit educational institution or library as long as they are performing or displaying a copy of a lawful work. So, this does not allow them to make a copy of the work but rather to read aloud, to watch an entire movie, to act out a play, to listen to music, all of those sorts of things that we do in the course of face-to-face teaching. However, in the era of COVID-19, many folks have had to move their classrooms or their library’s classroom settings online and when doing so they’ve become concerned about licensing issues and the realm of possibility of being sued under the guise of Fair Use. Unfortunately, publishers have tried to clear this up but in a way that just made things more confusing. So, many popular publishers reached out on their websites granting libraries a “exception” to copyright allowing them under their purview of owners of the copyright to perform the works with certain guidelines. The guidelines varied from publisher to publisher. Often, they would include that they had to limit the number of users that they were displaying the work to or credit the publisher when they read the work, et cetera, et cetera. I know the publishers were attempting to do something good; to make an otherwise muddy area more clear for their users, their patrons, the librarians, other members of society who wish to read aloud. The problem is that we didn’t really need the publisher’s permission to do this in the first place. When we exercise Fair Use, we do not need to ask for permission to do so. The problem is that many folks feel very uncertain when exercising Fair Use. They feel that the risk is too great, that they don’t want to be sued, and that they don’t feel comfortable making a good faith Fair Use determination. Unfortunately, the more that we give in to our fear of exercising Fair Use, the more that we allow publishers to overreach. Again, like I said, we didn’t need the publishers to give us permission to read aloud books. Especially, if we were doing so for educational and transformative purposes. Let me give you a greater example here. Let’s say I am a school librarian and I’ve been forbidden from meeting with my students face-to-face because of the possibility that COVID-19 would be spread in those interactions. I wish to read from a book, a children’s book online and provide that streaming to my students in my classes. When I read aloud, I often pause for emphasis, I often explain the meaning behind certain phrases. I use it as an educational opportunity to get the students to think about the context in which the story takes place and I use it to explain the meanings of different words and maybe even grammar. So, I’m not just reading the book straight through but I’m providing educational opportunities and other questions that the students can think about as they’re listening. In this respect, I am not transplanting the original market for the work but I’m transforming the way that I am presenting the work in a way that brings new meaning or message. The clear and classic transformative Fair Use example. Now, I know what you’re thinking. You’re thinking that poor librarian could still be sued for exercising what be seems to me, Sara Benson, to be a clear Fair Use. That may be true but I also would like to point out that there is a possibility that she wouldn’t get sued because if she had a good faith belief that her exercise was Fair Use then Section 504C-2 of the Copyright Act provides that she could not be sued for statutory damages in that instance because her belief was a good faith belief and she was acting as a non-profit educational librarian and in that scenario, I don’t think that they publisher would have as great as an incentive to sue because they would get any large damages in that instance. So, in other words I want to point out that when a read aloud scenario in order to educate to help your students to process information to provide additional context and meaning to the work that you’re reading. You’re not transplanting the market value for the work but rather you’re providing a transformative educational experience for the students and one that the publisher has no right to tell you how to do so. I know, the publishers were trying to do something good by providing some limited exceptions to their copyright but we really should feel a little bit more empowered and use the Fair Use limitation on the rights of the copyright owner to go forward with read alouds in a way that is educational and transformative for our students. I’m linking here, in this podcast episode, some explanations of this Fair Use exception as it applies to read alouds and this was drafted by some very intelligent, smart copyright librarians and other individuals in the copyright field and I hope that you will find it informative, as well, and I find their examples really helpful too. So, one of the examples that they provide where they state that it would not be a Fair Use is one in which a librarian starts a YouTube channel that is more for entertainment than for education and opens it up to the general public and receives ad revenues for that channel. I think, that is a clear example where the transformative Fair Use doctrine has been pushed a little bit too far and the commercial use is potentially transplanting any revenues that the publisher could make off of their work. However, they do provide the example that I used earlier where someone is using the work to educate their students and to educate the public or their limited public in the case of a classroom experience about different themes from the book or different vocabulary from the book and in that instance they conclude that it is more likely to be a Fair Use and so, I would encourage people to review the guidelines set forth in the tiny URL linked from this episode and to think through Fair Use with a little more clarity and little less fear and I’m also linking to a chapter that I wrote in the “Copyright Conversations” book below about fear and Fair Use and kind of quell that anxiety that comes when we try to exercise Fair Use. So, I hope you found this informative and I look forward to seeing you on another episode of Copyright Chat.  

Sara Benson: Welcome to another episode of Copyright Chat. Today, I am very pleased to be speaking remotely with Michael Furlough who is the Executive Director of the HathiTrust Digital Library. Welcome to the show.

Mike Furlough: Hey! Thank you very much for having me. I really appreciate the opportunity to talk with you all today. Sara: Thanks so much for coming and virtually, at least, for spending some time with me to chat about this. So, I’m pretty familiar with the HathiTrust Digital Library but I know a lot of listeners may not be. Could you explain to the listeners who are unfamiliar with the library, what the HathiTrust Digital Library collects? Mike: Sure, and I will give you a little bit of a history, too. So, our primary goal and mission is to collect, preserve, and make accessible materials of scholarly and cultural record. Mostly, that takes the form of books that have been digitized from research libraries. Right now, the collection has about 17.4 million digitized volumes. That is like a book on a shelf that has been put on a scanner and that corresponds to just under 9 million titles. So, that includes books, single authored books, but also, serials, journals, things like that. We got started—really the start of HathiTrust emerged from the moment when Google, when it was still a pretty young company, began working with libraries to scan collections at a really large scale. I mean, their plan had been to or was to simply scan everything in these libraries and one of those early partners with Google was the University of Michigan and soon it was followed by other colleagues from the Big Ten, including Illinois, and those libraries started to plan for large scale cooperatively funded infrastructure that would support preservation and support access and really focus on a researcher or student mode of access to the collection. They recognize that they work together they can do much more with their joint collections effectively in a way that they couldn’t in a grant landscape. So, they also started working with other universities and in 2008 the University of California joined on with the Big Ten to form HathiTrust. We now have about 150 members worldwide and we’ve launched a lot of major programs that help us take advantage of the corpus, take advantage of the collection in ways that you just couldn’t for a print collection, as well. Sara: Wonderful. So, it sounds like the collection is fairly robust at this point especially. What is your role within the library? Mike: So, I’m the Executive Director. My job is to lead the organization as a whole. And it really is an organization, as I said. So, I do things like on a day-to-day basis I’m working with my team of about 12 people to help monitor our uses, monitor our finance. On a larger scale, I’m looking at our strategy, helping to set and define policy. I am accountable to a Board, a board of governors that includes representatives from the memberships, so, I work with them regularly, monthly, in a—to give updates and talk about what we’re working on and to understand what direction we might—what course corrections, rather, we might want to be making. So, we have— one thing I would let your listeners know is that we have services that are operated at different institutions. So, I am based at the University of Michigan, but some of our services are operated here, but others are operated at Indiana University, some at the University of Illinois. California Digital Library also operates some services. All of these are like contracted services. So, even though my team is about 12, really were relying on the distributed expertise of the membership and there are dozens of people that work on HathiTrust. Sara: Wonderful, yeah. I’m very familiar with some of the work that goes on at the University of Illinois in collaboration with the iSchool, as well. Is—can you talk a little bit—I’ve heard a lot of buzz lately around the Emergency Digital Library. Can you talk a little bit about that and why that was started? Mike: Yeah. So, maybe first I should say a little bit about how access usually works in HathiTrust. You know, the collection is, as I said, over 17 million volumes. Much of that material is in copyright and it was scanned lawfully for preservation purposes and we’re able to take advantage of fair use and other exceptions to the copyright law to use the copyrighted materials in particular ways. We can provide access to users who are blind or print disabled, we can make it available for search. The HathiTrust Research Center which is all affiliated with the iSchool of Illinois is a service that allows for advanced users to run software for text and data mining on the entirety of the collection without regards for copyright status. That is something fairly, clearly defined lawful under fair use. But for the works —the only works that we really show in view form, the works that people can read on the site, are the works that are in the public domain. So that’s material that was published before 1925 in the U.S. or maybe it was works that fell out of copyright because they weren’t renewed, or they were never registered. The members of HathiTrust have the ability to access those materials in full and download them. That is the normal way of work, but those in copyright materials, normally readers can’t see them. What we have done recently is launched an emergency temporary access service that is really for us unprecedented and we think unprecedented in library land, as a whole. What we’re doing now is providing limited access to those copyrighted works due to the fact that libraries have been closed for public health reasons. We launched this on the last day of March. We spent about three—three and a half weeks in March planning it, developing it, testing it, before we got to put it out live. Where it’s activated students and faculty and staff at a member institution, like Illinois, have the opportunity to log in HathiTrust and they would log in just as they might log in to their email portal at their university, use the same credentials. Those persons would then have access to books in HathiTrust that are both in the collection of HathiTrust and in your local library collection. So, books that are in the library at Illinois and are in HathiTrust are viewable to students and faculty and staff at Illinois. You can read the books on screen. You can’t download the books in full, though. And we give access to users for up to 60 minutes, but a user can extend that 60-minute period by continuing to read the book. So, if they’re paging through the book their access duration will continue to extend. We call that a check out but it’s really not a check out like you’re taking it away, alright. You’re using it entirely within the HathiTrust interface. Last point about the way this service works is that a user—the number of users who can access a book is—matches the number of books on the shelf. So, if you have one copy of a work only one user at a time can use it, just like only one user can use that book at a time in the library. If it’s three copies on the shelf, then we can allow three users at a time. Where we are making this available is—it’s very localized. It’s the library is—users where their libraries have this service are closed or access to their collections is currently not available, substantially disrupted because of the public health crisis. It’s not activated everywhere. Not all HathiTrust member libraries have chosen to use this service. In some cases, they believe they can provide access in a way that was enough for their patrons or they simply just made the choice not to close all their library locations because their situation allowed that. What we’ve seen in the last several weeks is that usage has been very high and gradually increasing. Since the end of March through yesterday we have had over 208,000 checkouts. So, 208,000 instances of books being checked out, used by a member. That’s an average of just under 5,000 a day. We’re seeing about 3,400 unique books being used in a day on average by about 2,250 unique users per day. All of those are on average. So, we’re — that’s a lot of use for a library that is honestly—can be—is not especially well-known by users until they suddenly find us like this. So, we’re really pleased that we can provide this access. We recognize that in the time when we all of a sudden had to flip a switch and close our buildings up, try to maintain access for instruction and research there’s a real challenge there and unless we took these steps, we felt that our members would be kind of stuck in trying to provide access for their students and faculty. Sara: Yeah, it sounds like it’s getting a lot of use and I’m really pleased to hear that. Is this digital lending emergency library based on the idea of controlled digital lending? I am familiar with that concept that it’s a fair use if you have, say, one of those books in your collection and you’re only lending out one electronic version of the book. Is that kind of the theory behind it or…? Mike: Well, it’s—you know, one difference I would point out here is this: is that we’re not really lending a book. So, in some models of controlled digital lending someone is being given a file that they can then take away and read on other devices, not unlike that you might do at your public library with OverDrive or some applications for your library collections. Emergency temporary access is based on fair use. We—when we were determining if or how to operate this service, we looked at the four factors defined under Section 107 and there were two factors, the first and the fourth, that we really learned on heavily in our analysis. The purpose of the character of the use, for example. What we’re doing here is definitely not a transformative use. When we are digitizing books for computational access, that mig