Announcing the RPTF Copyright Series Webinars

In 2022, leading up to the Radio Preservation Task Force Conference, the Radio Preservation Task Force’s Education Division, in partnership with the Preservation Division, invited three lawyers to discuss copyright as it pertains to audio-visual materials, specifically audio/radio collections over the course of three sessions.

We are excited to announce the publication of these fully transcribed webinars and invite you to watch if you were unable to attend or re-watch. Be on the look out as we continue this series in 2024!

Thank you to our presenters, Charles Cronin, Kevin Smith and Brandon Butler.

Charles Cronin:

Kevin Smith:

Brandon Butler:

RPTF Copyright Series Session Three

About the series: The Radio Preservation Task Force’s Education Division, in partnership with the Preservation Division, invited three lawyers to discuss copyright as it pertains to audio-visual materials, specifically audio/radio collections over the course of three sessions.

We are excited to present the third session here featuring Brandon Butler. This presentation was held on December 1, 2022.

An interactive transcript can be found below the video.

About the presenter: Brandon Butler is currently the Director of Information Policy focuses on such matters as intellectual property, copyright, licensing and user privacy as they are related to the acquisition, dissemination and preservation of various forms of information and cultural artifacts, and as they are related to scholarly communication. He serves as an expert consultant to UVA librarians, to groups and individuals within the University, and to national and international efforts focused on relevant questions. He provides guidance and expertise to the Library as it develops plans and strategies to address the challenges that it faces as a leading university research library. He also serves as an advocate for creative legal strategies to help the University Library advance the institution’s mission “to record, preserve, and disseminate the results of intellectual discovery and creative endeavor.” As Director of Public Policy Initiatives at ARL, he represented the Association in a variety of policy matters, and was co-principal investigator of a project to develop and promote what instantly became the widely-respected Code of Best Practices in Fair Use for Academic and Research Libraries.

Maristella Feustle: All right, I think we’ll go ahead and get started. Welcome again to, to everyone joining us today. This is the third of three sessions in a series on copyright, particularly as it as it pertains to radio, but also more broadly to, to recorded sound. This is uh uh sponsored by the Radio Preservation Task Force, which is a project of the, the Library of Congress. And uh and today we have with us Brandon Butler who is uh currently the Director of Information Policy at the University of Virginia. Uh He serves as an expert consultant to UVA librarians, to groups and individuals within the university and to national and international efforts focused on questions relevant to, to copyright and surrounding issues. Uh He provides guidance and expertise to the libraries. He develops plans and strategies to, to address the challenges that it faces in the leading university research library. And of course, those are wide widely, those issues are widely shared across the, across the profession and across archival collections. Uh He serves as an advocate for creative legal strategies to help the university library advance the institution’s mission to record, preserve and disseminate the results of intellectual discovery and creative endeavor. Uh also as the director of Public Policy Initiatives at ARL, the Association of Research Libraries. Uh He represented the association in a variety of policy matters and was co-principal investigator of a project to develop and promote what became the, the well known code of best practices and fair use for academic and research libraries. And uh today, the the subject for discussion is, is again a fair, fair use and overcoming risk aversion. So, um, um, welcome to, to Brandon and, uh, we’re, we’re delighted, we’re delighted you’re here and looking forward to hearing your talk.

Brandon Butler: Excellent.

Maristella Feustle: Oh, sorry, I just, uh, yeah, I just did a, uh, a global mute and it does the hosts too.

Brandon Butler: Totally. No, that’s always good, uh, good Zoom hygiene at the very beginning. Um So, uh, yeah, it’s, I’m thrilled to be here and to speak with you all today. Um This is, you know, uh I’m a, I’m a indie rock music nerd, uh, lifelong, uh, you know, kind of sound recording enthusiast. So, uh, I love talking in particular about recorded sound and copyright. Um, so, uh, I appreciate the chance to speak with you all today. I’m gonna share my screen and, um, and get started and I, what I want to talk to you today about is, is how to do fair use, uh, without being fearful about it. Um, and how to overcome the kind of risk aversion that is too often associated with um taking advantage of what is ultimately actually a, a right uh that, that we have um uh to make fair uses. It’s an important legal right. That’s just as legitimate as the copyright uh rights of, of uh authors and others. So, um here’s a, a, an overview of what I’m gonna talk about first, I’ll sort of introduce the fair use doctrine. What is it, how does it basically work right now? Um And then I’ll talk about the strategy for overcoming fear that I am most familiar with, which is the development of best practices statements, um, which has been a really successful sort of movement, um, that’s been iterated across, uh, uh, more than a dozen communities to try to, you know, enunciate fair use values and, um, announce a kind of a set of fair use practices that the community endorses as legitimate.

Brandon Butler: I’ll talk about why those things work and how they’ve worked so far in some of the communities that have used them. And then finally, I’ll talk about some other kind of risk reducers and perspective shifters around fair use that I find helpful when I talk to people about fair use and why you shouldn’t be fearful when you take advantage of it. And then, um, we can talk. Um, so I will try to move, uh, quickly without talking too fast here. Um, so first, right, you can’t talk about fair use or I can’t talk about fair use without talking about the purpose of copyright. And uh this is um an artist’s rendering of the constitution. Uh article one section uh uh article one section eight, clause eight of the constitution. You know, it’s the part where the Congress shall have the power to raise armies and tax people and regulate interstate commerce and blah, blah, blah, blah. And uh somewhere in that list, you will find Congress shall have the power to promote the progress of science and the useful arts by securing for limited times to authors and inventors, the exclusive rights in their writings and discoveries, right? Um So that’s, that’s the constitutional basis for copyright. And it’s really interesting because you’ll hear people say, you know, sort of like copyright is, is, is constitutional, it’s a constitutional right, kinda sorta right? But if you actually read the text, which I I like to do that, um you will see Congress has the power to promote the progress of science, right? That’s what Congress has the power to do and it can do that by securing for limited times, et cetera, et cetera, right? Um And so the the the upshot of that structure, you know, which the scholar scholars of copyright sometimes call this the the two by structure of, of the clause. It means that the purpose is to promote progress and securing limited rights is a means to an end, right? And so the Supreme Court put it uh uh put a point on it in the 1970s when they said private motivation, that is the author’s motivation to secure a copyright and make money. Or, you know, the Disney Corporation’s motivation to monetize copyrights must ultimately serve the cause of promoting broad public availability of literature, music and the other arts, right? So copyright is only working when as an end result of the copyright system, the American people have the broadest possible access to culture, right? And if copyright starts to undermine that access and limit access in a way that doesn’t uh that doesn’t serve the public interest, then it’s straying from its constitutional foundations. And so, and what that means is that copyright is a, is actually a complex system that has exclusive rights as a part of the bargain, but it has rights of users as the other part of the bargain. And that that rights of users part is just as important because again, it serves the same umbrella purpose of promoting broad public access.

Brandon Butler: And so fair use isn’t crucial is just as crucial just as central to the copyright system as the exclusive rights of authors. And so what is fair use? Well, fair use is this broad flexible open-ended right to use in-copyright works without permission or payment. And what that means, what I mean by broad flexible open-ended. There’s no um if you go to to other, other countries, if you look at the laws of other countries, there are, um, there are similarish provisions to fair use in, in many other countries. But, but most of them are sort of closed ended lists. Right. And so they’ll say sort of, you know, um, if you’re, if you’re engaged in scholarship, criticism or education, uh, or news reporting then you can do fair use. And that is the, that is, those are those four things and if you’re not doing those four things, you can’t have fair use, right? You can’t have fair dealing, you can’t have whatever the sort of right is, but fair use is open ended. It uses uh sort of flexible language like such as, you know, so fair use for purposes such as scholarship, criticism, comment, um is, is not an infringement of copyright. And so what that means is that judges have this very flexible power to on a very case-by-case basis, permit unauthorized unpaid uses. Um uh in cases where that use actually supports the public interest and the, and the, and the true umbrella goal of copyright, um fair use is as old as copyright itself. It was created by judges. Um It’s part of the sort of Anglo-American common law tradition whereby judges could uh make stuff up um to, to put it not to fine a point on it. Um When judges would hear cases, uh someone would come before them and say, you know, this guy, this, this this, this person infringed my copyright and the judge periodically, uh, as the fair use law was developing, judges, you know, from time to time would say, you know, technically, yes, this looks like an infringement. It meets the test of what, you know, would be an infringement and yet it seems good, you know, it seems like this is good for the public. It seems like this is not the kind of thing that copyright should actually stop. And so I’m gonna let it go. This might be the time to disclose that I’m dealing with the early days of the COVID virus right now. Um And so I apologize for my occasional coughing. Hopefully, I’m still lucid enough to give this talk. Thanks for bearing with me. But so it was a judge made doctrine, right? Judges, judges sort of created it on the, on the, uh, over time and evolved it and it eventually evolved into this four factor balancing test which was written into American law in the late 1970s, um, but written into the law in a flexible way. So that judges still have broad leeway to apply these four factor balancing factors, um, uh, in a flexible way and to take note of changing circumstances in the world, right? So these are the four factors, right? The, the, the, the statute says judges, uh, fair use is not an infringement.

Brandon Butler: Uh, anyone who makes fair use that’s not infringing, you’ll know if the use is fair by thinking about these four factors and weighing them together. Uh uh uh And these are the factors, right? What is the, the purpose or character of the use? The reason for the use is the way I shorthand that. What kind of work is being used? Uh How much is used? And what is the effect of the use on the ordinary traditional reasonable market for the, for the work that was used? Um, you may notice something about these four factors. They’re not enough heh they’re just not enough. Um, they don’t settle the issue for you. Right? You can, you can consider those four factors and you still won’t know if a use is fair. Um, uh, the, the, the analogy I sometimes use is, you know, it’s as if I told you, you know, go out in the woods, uh, and find me a, a bear and you’ll know if something is a bear by factoring in, uh, the color of its fur, its size, its shape and what it smells like. And if that’s all I tell you, you know. Right, you can say, well, ok, so it’s big, it’s brown, smells bad. Um, you know, et cetera. You don’t know if that’s a bear or not, right? Like you’ve considered all the factors, but you need to know in light of what, right? What do these factors need to say to me in order for me to know that something is fair and for a little while, actually, unfortunately, in the, uh, seventies and eighties, after these factors were codified, there was some confusion in the courts. Um, and one of the biggest sources of, uh, sort of legal problems or problems in getting good legal advice about fair use is that if you have a, a lawyer who has not been keeping up with fair use law, who sort of went to law school in the eighties, right? Um, you know, your general counsel, generation of lawyers, um, if they’ve not been keeping up with fair use law, they might still think fair use looks like it did in the seventies and eighties, which was pretty confused, the, the courts, um, fell into this confusion for a while, um, and couldn’t quite make sense of the factors, but there’s good news, um, there’s good news, uh, uh, since then. So first of all the judges, the judges in the federal courts have, have really embraced fair use and the kind of balancing the balancing feature that fair use plays in, in copyright, especially as copyright has gotten longer and stronger. Right.

Brandon Butler: So over the course, certainly of, of my lifetime and, and I’m sure many of yours, right. Copyright term has gotten extended, you know, 20 more years in the Sonny Bono Term Extension Act in the late nineties. Um, but, you know, but of course it’s got, it was extended many times before that, right. Copyright used to last for sort of 14 years and now it lasts for essentially a century and, and more. Um so as copyright has gotten longer and stronger judges have actually generally, um looked, uh looked for ways to counterbalance the length and strength of copyright. And so fair use has grown in its importance over the last few decades Uum uh accordingly. The other thing that’s important is that the Supreme Court has said in, in two separate decisions that fair use is a, is a kind of First Amendment safety valve in the Copyright Act, right? So copyright would be a kind of private censorship law, if not for fair use. Uh and that would be inconsistent with the First Amendment. And so you need fair use in order to ensure that copyright doesn’t come into conflict with the other values in the constitution. Um So fair use has this kind of First Amendment valance which, you know, again judges love the First Amendment. And then sort of most importantly, the Supreme Court in the early 1990s kind of got its act together and, and helped all of the federal courts kind of um organize themselves a little better in terms of thinking about those four factors, right? So in a case in the early 1990s called Campbell v Acuff-Rose, the Supreme Court embraced uh a version of the fair use calculus that centered largely around the concept of transformative use. And this was a, a concept that was created by a a an appellate court judge named Pierre Laval in a law review article in the Harvard Law Review. Um and Laval was one of these judges in the 1980s who was wrestling with fair use and he kept getting reversed. Uh Back then, he was a district court judge and he kept saying like this is fair use. And the, and the appellate court would say no, it’s not. And he would say this is not fair use. And the appeal court would say yes, it is. And he was really sort of tearing his hair out like I can’t, there’s no consistency in this doctrine. So he wrote a law review article where he tried to really make sense of fair use.

Brandon Butler: And uh and he, his article was able to persuade the Supreme Court. And so in the Supreme Court’s opinion, in Acuff-Rose, they really uh centered Laval’s theory, which was uh which was centered around this concept of transformative use, right? So, taking an existing work and using it or a portion of it for a new purpose or in a new context and in a way that adds insight or uh makes it available to a, a different audience for a different reason from its original kind of creative or economic purpose, right? So it’s not merely sort of the, the opposite of fair use is a, is kind of substitutional use or unfair competition is one way to think about it, right. It’s uh uh I’m on the market and I’m selling copies of your work and competing with you in that market. Well, that’s not fair, right? Copyright is meant to allow the copyright holder to control that market and, and monetize their work. But if you’re not doing that right, if you’re engaged in a different kind of activity altogether, if you’re engaged in scholarship, criticism, et cetera, right? You’re a different part of the cultural landscape from the part that’s being economically and culturally occupied by the creator, then fair use should give you the leeway to occupy that part of the cultural ecosystem. And uh again, remembering copyright’s kind of constitutional purpose of, you know, fostering a flourishing cultural landscape, promoting the progress of science, which capital S science back in the founding era meant learning, right? Education access to information. So if your use does fit that category of a transformative use, a use that is not merely unfairly competing, but in fact doing something different, well, then the only question becomes, is the amount that you’re using appropriate to that transformative purpose? And if it is uh scholars have shown in a, a series of articles that have gotten stronger and stronger over time, uh legal scholars have examined the fair use cases after Campbell, and the most recent one was called “Is Transformative Use Eating Fair Use?”

Brandon Butler: And the answer was yes. And I think that’s great. It’s good because transformative use is coherent. It is a framework that we can understand. It makes the factors make sense. And uh and that, that a that article uh “Is Transformative Use Eating Fair Use?” came out like last year. It is brand new and it analyzes the case law right up until the most recent Supreme Court fair use case. So you can uh you can take it to the bank that transformative use is really central. So one more thing I wanted to say about fair use for the benefit of this audience, um which is the pedigree of preservation in fair use is deep and strong. So there aren’t cases about it because people don’t sue libraries, knock on wood, right? I mean, you know, uh with, with a few recent exceptions, um high profile exceptions, people don’t sue libraries for preserving things. And so there’s not case law, you can’t go and say, well, here’s uh you know, um uh uh here’s a case that shows that preservation is fair use. People don’t sue libraries, but also it’s just so, uh it’s well entrenched actually. So if you look at the, this is from the legislative history of the Copyright Act, the 1976 the last major overhaul of the act, you can see it’s the House Judiciary Committee’s report on the act says, um uh back then they were really interested in like, right preserving the old nitrate film um efforts of the Library of Congress, the AFI and other organizations to rescue and preserve this irreplaceable contribution to our cultural life are to be applauded and making duplicate copies for purposes of preservation, certainly falls within the scope of fair use, right? So, so there’s a real pedigree for preservation as a fair use. This is not something we’re kind of making up in 2022. This goes back. Um The people who codified fair use in 1978 uh had preservation in mind and it’s, they don’t really mention a lot of other fair uses like preservation is the paradigm case for a fair use.

Brandon Butler: OK. So let me talk a little bit about best practices. Um And I’m gonna have to speed up, I’m go, I’m not making enough progress here. So the best practices codes um I’ve been blessed to work on these. Uh I’ve done several of them now um since 2010 when I was uh first started working 2009 when I first started working with ARL. Um And there are a ton of them. These are just a few examples, documentary filmmakers were the first community to do it uh back in 2010. Um But since then, communication scholars, poets, and poetry scholars, uh the dance community, collections of dance related materials, open courseware, and of course, the ARL code that I worked on. And since then, there have been uh five or 10 more uh after the ARL code, including one I’ll talk about near the end of this segment about software preservation. So lots of communities have done these best practices codes. What are they, how does the, how do they come to be? Well, uh Peter Jaszi and Pat Aufderheide are the kind of uh originators of the process. And they describe it in detail in their book “Reclaiming Fair Use.” Um But the basic idea is that there you need a trusted organization, uh a convenor uh in a way that would sort of sponsor, steer and endorse the best practices. So you need somebody like ARL, right? Um or in the documentary film community, it was the, you know, International Documentary Association IDA. Um And so you need some kind of umbrella organization that will sponsor it, that will help bring it to life and give it legitimacy. Um And then with that organization’s kind of blessing, you start off with confidential interviews to find out what, what are the situations where fair use is, is potentially useful? Meaning what are the situations where people are routinely um hitting a kind of copyright wall when they’re trying to do their work? Right? And they feel like this is something important, this is something I should be able to do, but I’m being told that copyright won’t let me do it. Um And you know, important work is not getting done because there’s uncertainty about what copyright will let me do. Once we identify those kinds of problem areas, recurring problem areas in core kind of mission-critical um parts of the work that you do, then there are like small group deliberations about those problem areas to develop a kind of consensus about how fair use could apply in those areas, right? And so we start from the big principles of transformative use, you know, how is this different, how is your use culturally beneficial and not a substitute? Right? And we reason about that and we think about, OK, so what could you do to keep your use within the bounds of that transformative rubric? Right. And so then we kind of try to figure out, you know, how can we describe what the community thinks is legitimate in a set of principles that apply to these recurring scenarios and we include limitations that say, you know, if you do this much, you know, if you, if you, if you’re gonna invoke this principle, then you need to be sure not to, you know, um use it in this way, right? Or um this principle only goes so far. Um So each principle is usually accompanied by some limitations and some uh some recommended kind of best practices within the principle. Um Once we have a kind of consensus from the community, though there’s always a a kind of panel of independent legal experts who review the statement and put a kind of seal of approval and it’s not their job to say, you know, um, this is exactly the advice I would give. Right? Um, because every lawyer has it’s kind of a unique um personal kind of interpretation of a fair use and they might, they might have, they might have trimmed things over here a little differently or over there a little differently. But I think every expert can acknowledge that there’s a zone of reasonable practice. Right? And this may not be exactly what I would do, but a reasonable lawyer could certainly endorse this approach, right?

Brandon Butler: And so we uh we get that kind of a a a sign off from 3 to 4 kind of external reviewers and then we can publish the code. All of the codes live online. They’re collected at the, at the Center for Media and Social Impact um which is Pat Aufderheide’s uh center that she started at American University. And I’m a huge fan of reasoning by analogy and you can go and look at those codes and find a community that sort of looks like yours. And again, I think software preservation might be a good one for, for this group to look at in addition to the ARL Code um and, and get some insights as to how fair use might apply to what you do. The documentary filmmakers code is a good example of how these best practices can really succeed. Uh It’s the oldest code. And so it’s had the longest uh kind of time to take hold and the successes are, are remarkable. Um TV programmers like PBS, you know, Frontline um uh uh uh um um Independent Lens. Um those kind of documentary programs that uh that are really the, the lifeblood of, of doc filmmakers. They started airing the kinds of kinds of movies that they wouldn’t air before. Once the best practices code came out, the films got made, that couldn’t get made before um after the code came out. The probably the most important development was that insurance companies, every film has to get an insurance policy that says, you know, uh that covers them in case they made a mistake. Uh with all of the because films have so many legal, you know, tangle of legal obligations, they have to satisfy um every film gets an errors and omissions insurance policy and the insurers started to insure for fair use. And they said, you know, if you get a legal opinion from a lawyer that says everything in this film is fair, we will insure you uh based on that, um which they didn’t, it used to be, they wouldn’t do that, they would only insure you if you cleared and got permission for everything in your film, anything that you didn’t get permission for, they wouldn’t insure that, but now they insure fair use. And so lawyers have used the statement to build their own practices, giving people advice on how to take advantage of fair use um including me, I advise filmmakers all the time now, based on these principles, in part.

Brandon Butler: What the codes can do as well is they uh provide a kind of input for risk management. They help, they help uh practitioners put legal risks into perspective and think about the the mission risk, which I’ll talk about in more detail later on. But you know, balancing the uncertainty that they may feel about fair use against also the importance of doing your job and doing your work and getting things done, right? Um The codes help people think through in that, in that framework, um codes represent the views of practitioners in a conversation that often can feel like uh one sided. Um You know, you can say this is what my community believes is legitimate. Um And, and, and a and a and that gives you a little bit more voice in a conversation that sometimes can feel like your voice doesn’t matter, right? In a conversation with a a a general counsel or, or a leader or a gatekeeper. Um and also can provide a kind of groundwork for solidarity in the community, right? So if everyone has a kind of set of agreed principles, then you won’t find yourself, um you know, doing something and, and, and someone else in the community saying, oh, that seems risky, right? Um Because we’ve all kind of talked about this, right? We’ve had a, we’ve had a, a consensus that we’ve developed and so there’s solidarity in the community about what’s OK. The best practices also can be a much better front line kind of guide for practitioners versus a lot of the outdated kind of guidelines and rules of thumb around fair use. You know, um if you’ve, if you’ve been working in libraries or archives for, for the last, you know, 10, 15 years, um you’ve surely encountered guidelines like, you know, well, 30 seconds is fair use or, you know, uh 10 pages is fair use or 20% is fair use and none of that stuff is real. Uh uh It’s all sort of made up and, and, and very outdated. A lot of it goes back to the seventies and eighties before the transformative term that I described to you. Uh And so it’s, it’s really um useless, but it’s all we had for a long time. And the best practices approach can provide a kind of replacement for those bad old uh guidelines. Um Often if you’re engaged in kind of a, a big project, you can get, you can develop a kind of legal strategy for that project, right? You can maybe work with your counsel or work with uh uh people in your library that have some copyright expertise and say here’s how we’re gonna do this project, but sometimes you’re just doing kind of a one-off thing and you don’t have the time or the resources to develop a kind of overarching strategy. Again, the best practices can tell you well, if it’s just one of these five common scenarios, here’s what, here’s what you do, you know. And, and that makes it so you don’t feel like you have to go, um, develop, you know, get a memo from your copyright librarian for every time you touch something that’s, that’s protected by copyright. Um, and again, uh it’s really powerful because these, these statements address these common recurring uh scenarios.

Brandon Butler: Another great use for the, for the best practices. And again, you can, you can do this by analogy with, with all of the different best practices documents that are out there is that they are full of rhetoric, you know, they’re, they’re an argument. I mean, ultimately, these are persuasive documents, they are meant to help persuade the gatekeepers and the people who are in a position to say no. And so in the, the front matter, you know, every code has a kind of introductory chapter that says here, it’s the, it says essentially the kind of stuff I just told you about the history of fair use. And it’s meant to catch people up who may not, again, who may not have been paying attention to how fair use works now. And so it’s, it has this educational uh benefit. Um And then within each principle, the way they’re written ah you know, the the facilitators, people like me, Peter Jaszi, you know, we helped to translate the the consensus in the community into a, a kind of a quasi legal argument. You know, here’s why this is fair use. Uh Here’s what we heard from the community about why they think this is legitimate but put into terms that should look more familiar to an attorney who’s familiar with fair use. And so the, the, the beginning of each principle has that kind of miniature fair use argument, which can be helpful. And then whenever, whenever a best practices code comes out, we try to include sort of supporting materials online FAQs, quizzes, you know, uh infographics and all that material helps to kind of build literacy and confidence in the community.

Brandon Butler: Um I wanna suggest that you take a look at the, the software preservation code um as a potentially um especially useful uh resource for, for y’all because it is about preservation. Um And although it’s preservation of software, uh the, I think one of the biggest hurdles that people struggle to get through in terms of um thinking about fair use and preservation is the question of whether and how it’s transformative. And I was actually just going back and looking in my, you know, my sort of like Zotero Library of uh preservation, copyright materials. And uh there’s this, there’s an article by mm you know, my friend and, and yours, Peter Hirtle about uh copyright and archives and, and Peter, you know, sort of in his article says, well, you know, it’s not clear how, how archival practice is transformative because it’s not critical, right? We’re not criticizing the material. We, we don’t, we don’t comment on it, we just sort of present it. Um And that’s fair enough. I get it. Uh I’ve, you know, Peter and I have talked about this. Um but I don’t think that’s the entire story. And if you take a look at the software code, uh what you’ll see is an argument, a series of arguments about why preservation is transformative. Um having to do with the different cultural and social role that preserved cultural heritage materials play relative to the commercial market that these materials might have existed in originally, right? And so it’s, it’s never been the case that you have to literally change the thing, you know, transformative was, is a term of art. It doesn’t mean literally changing the material. It doesn’t mean you have to intervene on it or, or, or even comment on it. Um What it means is you’re doing something different with it. And uh what we argued uh in the software community based on the deliberations within that community about the importance of preserving cultural heritage software. Uh And uh was, you know, look, this material might have been originally meant uh for use by architects to help them design buildings better, right, or whatever. But when we provide it to people in a research context, they wanna know, how did this software work? How might it have influenced the way that architects designed their buildings, right? What does it look like and feel like when I run this software, they’re not designing buildings anymore, right? This is not the market for research access to architectural uh design software um well, frankly doesn’t exist, there is no research access market, right? Um And that’s exactly the point. That is where we fit in, right? That is where cultural heritage institutions come into play. We are not intruding on a market when we preserve materials and make them available for research. It is a separate cultural sphere. And that’s why uh in our view, it’s trans- it’s a transformative activity um that should be protected by fair use. So check that out, I think you will find it um valuable and, and uh interesting.

Brandon Butler: So let me lay down a few more kind of what I would call risk reducers and perspective shifters, right? For, for folks who might be anxious about fair use um and ways to kind of change the way you think about it. Um So let me get back to this concept of mission risk, right? Often when we often, when we um are thinking about, you know, uh uh is this legal right? Can I do this under the law? Is it gonna be fair use or not? Um The the the the risk associated with infringing copyright is very vivid, right? It’s very vivid to your mind. Um It’s, it’s not hard to imagine, especially those of us who kind of like lived through the copyright wars of the nineties and early oughts when, you know, grandmas were getting fined six figures uh, and more because their grandkids shared two songs on, on a, a file sharing software. Copyright infringement sounds really scary and doing it seems really risky, right? Um, but it’s important to remember the risk on the other side of the ledger, right? So it’s not the case that uh if you, if you don’t preserve this thing, then nothing will happen, but nothing bad will happen, right? If you don’t preserve materials, lots of bad things will happen, right? So you, you preserve materials and you know, if you feel like there’s uncertainty there, there’s a risk, right? There’s a risk that someone will get mad and they’ll write you a nasty letter or whatever and we’ll talk about that risk, not that high, but that if you don’t preserve those materials, there’s, of course, the risk that they’ll go away forever, right? That they’ll be lost, that no one will be able to find them that the last copy will die before it’s put on a durable medium, et cetera, right? Cultural heritage lost, research and teaching opportunities are lost, right? I mean, um copyright risk can actually influence what fields of study are available to researchers, you know, and to teachers. So, for example, um uh I’ve worked with film historians like Peter Decherney at University of Penn at uh Pennsylvania University. Um and Peter teaches, you know, massive open online courses. He’s, he’s a believer in teaching a lot, you know, in kind of spreading the gospel of like film literacy. But um if you go and look at like, what kinds of courses are offered in these big online platforms, there aren’t courses about things like the history of film because people are scared to include clips of films in these big open online courses. They’re afraid that this could be a copyright risk, you know, problem. But what that means is that, um, if you want to take a class on the internet, there’s an infinite number of classes you can take about materials that are in the public domain or about materials that are not copyright encumbered, you know, algebra, but you cannot study contemporary culture online because of copyright fear, right? That’s, that’s messed up, right? Like that’s a problem. That is a risk. Um, that is a downside. And so it’s something to think about. We have a mission to educate and to support research. And um, if we allow uncertainty about copyright to curtail that mission, something is lost. It’s not nothing. Um, research and teaching curtailed. Funding opportunities missed, right? Like if you’re not willing to flex your fair use muscles, then you’re not will-, you’re not gonna be able to apply for grants uh to digitize material for preservation purposes or to make them accessible, right? Um And ultimately, you are the client, that’s the other thing to mention, right? You know, when you talk to somebody like a general counsel, um their job is to help you do your job, right? Um And so ultimately, you know, your goals and your purposes should be the governing, you know, the, the guiding light. You know, of course, they can’t, you know, of course, their job is to, is to sort of um help you do that without incurring undue legal risk. But um but reducing risk to zero in a way that reduces your mission to zero is not an acceptable outcome, right? So remember that.

Brandon Butler: Um fair use cuts Gordian Knots. I am such a a fan of fair use. I sometimes wonder if I’m such a fan of fair use because I’m lazy. Uh You know, III I really hate um the kind of persnickety um uh uh time intensive uh work that is involved in lots of the other ways of trying to clear copyright questions. Um uh So there’s a huge problem of course, y’all may have heard, uh I’m sure by now of the the issue of what are called orphan works, right? Works where the the there’s some copyright holder out there somewhere because they’re less than 100 years old or whatever. And so probably there’s somebody out there who probably holds copyright. Figuring out who that is and where they are and getting them to answer your email is a whole another question, right? Um And if you are um completely beholden to getting express permission every time you try to do something. Well, then an orphan work is just um uh dead to you, right. There’s nothing you can do. If you can’t find a rights holder, then you can’t do anything with it. Um And that’s crazy. That is crazy. That is a failure of the copyright system if it actually worked that way. But again, fair use is meant to ensure that the copyright system doesn’t fail, right? Fair use is the safety valve that says look, the purpose of copyright is to enrich culture. And so if you reach a dead end trying to find people, um and yet, you know, uh what you wanna do is culturally beneficial uh copyright should not stop you, right?

Brandon Butler: And so orphan works are a category uh where fair use can really be helpful to you. Um And of course, in the case of orphan works, um there’s a, there’s a kind of argument that um whoever this person or entity is clearly they’re not gonna be harmed by your use because they’re not on the scene, right? They’re not, they’re not anywhere out there waiting to hear from you. They, they don’t want your money, they don’t want your permission, they, they are unfindable. Um And so fair use can sort of cut through that problem for you.

Brandon Butler: This one, I think uh the next one I think should be kind of near and dear perhaps to this community, which is the layers of multiple rights that can be involved in any particular kind of cultural object, right? So, I mean, thinking about like a radio broadcast, right? There’s songs, there’s the musical record-, there’s the the musical composition on the one hand and the sound recording on the other. But that’s true also for all kinds of other works, right? There’s a script on the one hand, a kind of written uh teleplay and then there’s the performance of the teleplay and all of these rights have different rights holders potentially, right? And if you wanted to do kind of a perfect job of clearing all rights in order to, to make use of a of a, a particular sound recording, um you may never reach the end of it, right? It’s a snarl. It’s a, again, it is a Gordian Knot, but again, fair use uh can cut through all that because fair use is based on your transformative purpose and it will apply regardless of all of the multifarious, right um uh rights holders that might be implicated by any given work.

Brandon Butler: Um Large collections are another huge Gordian Knot, right? Um There’s been lots of good research done, Henry Lowood’s, done this with software. Um There’s work in the research triangle uh with uh manuscript collections. Um It is simply not feasible to actually do the diligence that would be involved in like finding identifying and seeking permission from every rights holder implicated in, you know, a typical large archival collection. Like it’s the the sheer scope makes it prohibitive. And so again, fair use can cut through all that you can say at the level of at the collection level, this is fair use and you can do what you need to do to preserve at the collection level without fretting about all of those individual people and, and rights holders that are implicated by every little item.

Brandon Butler: Other legal provisions in the Copyright Act can be really powerful when you jump through all the hoops. But again, they, they are a lot of hoops to jump through. So the Music Modernization Act, um Section 108, the Teach Act, each of these other kind of copyright safety valves are great, but they are um much harder to navigate than fair use. Um They require uh uh more diligence, more ticking of boxes more doing searches for rights holders and things like that, that um uh or imposing technical measures in the case of Teach Act or interpreting tricky words like obsolete in the case of Section 108. Again, fair use is much simpler and cleaner and clearer. Um And I I mentioned undue diligence.

Brandon Butler: So the last thing I wanna say and then we’ll do Q and A is remember the other person has some risk calculus on their side too. Right. So there’s a reason people don’t sue libraries and it’s not just because it would be a jerk thing to do. Um, one of them is copyright litigation is expensive for the plaintiff. Right. Um, studies have shown that it’s a, it’s a six-figure. Uh, it’s sort of, uh, $300,000 was the average cost of a copyright case. And so for someone to haul off and actually go to court over copyright, they really need to be, you know, um, deep pocketed and willing to, willing to fight. And a lot of folks I think would rather avoid that if they possibly can. Um Another thing that’s important to know is plaintiffs pay when they lose fair use cases. And so that’s where my little graphic comes from. South Park Comedy Central, not, not an impoverished defendant. Um, you know, they’ve got money, they’re, they’re doing fine. But, uh, when the, when the guy who made this sort of, um, absurd video in the bottom right-hand corner sued them for making fun of him and lost, like immediately, the court said, look, this is obviously a parody. This is obviously a fair use. Um You have wasted this court’s time. You will pay Comedy Central’s lawyers. Ouch. And this is a part of the Copyright Act, um, that is uh important to know about. That a plaintiff who brings a lawsuit, uh and loses in a case where they probably shoulda known they were gonna lose is gonna end up paying the attorney’s fees and costs of the defendant. And so that means, not only is the, not only do they have the six-figure cost of their own legal fees, but then they have the six-figure costs of the other person’s legal fees as well. So it’s another reason they might think twice. Um, another thing to know is the, the big old nasty remedies that we think about when we think about copyright infringement, um, the against kind of six-figure plus remedies, those are only available to people who register their rights. And so if you have a collection of things like home tape recordings, um, amateur recordings, archival materials that were never published, they were also probably never registered. Right? And so you can think about, well, if they didn’t register, um, are they gonna be able to, are they gonna be able to kind of recover the kinds of remedies that would motivate them to, to file a lawsuit in the first place? Um, quite possibly not, right? And so that again, makes it for a potential plaintiff, it makes it not attractive to bring a lawsuit. Um, if you, if you think you’re gonna lose on fair use and you know, you, even if you win, you’re not gonna get that much money, then the plaintiffs are not likely to move forward. Um, there’s a provision in the act actually that says in, at 504 C2 , a library or library employee, a library or archives or a library or archives employee um with a good faith belief that their use is fair uh cannot be uh subject to statutory damages uh for uh uh for, for the, for the activity if they had a good faith belief that their use was fair. Right? And so again, that damages, the possible remedies a plaintiff could get are become much less attractive, right? And, and the downside for you are, is much, is much less intense. And for those of us in state institutions like the uh University of Virginia, we have state sovereign immunity from damages. That is, they can sue us for copyright infringement, but all they can get as a remedy is an order that we stop, they can’t get any money. And again, that’s gonna make it less attractive uh for anyone to bring a lawsuit against a state entity. So, you know, it’s not just, it’s not all the risk is not just on us, the risk is on the plaintiff as well. Um And it’s really not that attractive to bring kind of frivolous lawsuits against libraries. And that’s part of why it doesn’t happen.

Brandon Butler: Ok. So that’s, that’s my spiel, I’m sticking to it and it’s 2:50. So maybe we can do a few minutes of uh of Q and A before the top of the hour.

Allison Schein: Yeah, that would be great. Thank you so much that was so informative and very, very exciting. Um So we’ve got a couple of questions. Uh libraries can make duplicate copies for preservation. But what about lending these copies to patrons? Is that distribution?

Brandon Butler: So a few answers to that. Uh yeah, it is distribution, lending is distribution. Um And the then the question becomes, so what? Right? Why does this, why does this matter? Um it matters if you are looking at um specific provisions that uh only apply to specific kinds of uses? Um It doesn’t necessarily matter if you’re thinking about fair use because again, fair use doesn’t, doesn’t make those fine distinctions, you know. Well, it’s OK to make copies but it’s not OK to distribute. Um fair use will let you do anything that fits within the four factor kind of transformative analysis. So that’s what I like about it. You don’t have to kind of fret too much about those fine distinctions like is it reproduction? Is it distribution? Is it performance and so on?

Allison Schein: Great. Um What other outdated guidelines existed before the new principles? Uh CONTU comes to mind anything with bright line numbers, I assume but curious about other examples.

Brandon Butler: Yeah, you know, so CONTU absolutely, totally outdated. Um There were a set of guidelines called “the classroom photocopying guidelines” that were promulgated in the late 1970s. Um You know, that’s where you get things like uh one, you can make one copy, you know, but you can’t do two semesters in a row or two years in a row, you can’t use the same material, all that stuff- completely arbitrary that none of that is actually true. Um It was negotiated, you know, it was, it was literally cigar chomping lawyers, the law firm I used to work for, it was one of the partners I used to work for, he was the guy literally chomping on a cigar in a room, negotiating this with the publishers and it was never codified as the law. It was just a gentleman’s agreement and we’ve moved on from that. So we don’t have to worry about those anymore.

Allison Schein: Thankfully. How do video [throat clearing], excuse me, how do video recordings of programs that were broadcast on TV, Such as the nightly news fit into fair use? Are these limited to on site viewing in a classroom setting and not via a streaming or a shared video file?

Brandon Butler: Fascinating. News is fascinating because it’s subject to this weird, you know, I mean, it’s a good kind of parable for, you know, how politics actually really works. Um There was a, again in the sort of seventies, uh when the in, in early eighties, when the big last big copyright overhaul happened, there was a, a senator in Tennessee who was convinced that, you know, this may sound familiar to you, the media had a liberal bias and he wanted to, he wanted to ensure that uh Vanderbilt University in his home state would be able to build its comprehensive uh archive of broadcast news, documenting the liberal bias in the media. Um And so there’s a provision if you look at Section 108, there’s this weird little provision that does a little judo chop and says, you know, whatever else happens, you can record the news. Um but that’s not fair use. And, and it’s funny because uh it has um it, it, it, it uh well, fair use is interesting here because again, fair use is only gonna, is, is, is gonna give you the flexibility to think about those things about “Well, can I lend it or not? Can I, can I have it on site or not?” And the lens that you have to take when you think about fair use in that context is well, is access to this material in a research context, transformative? And is there something about seeing it remotely versus seeing it on campus that changes the transformative calculus? And at first blush, I don’t see anything that does, you know if that makes sense. So the, the fair use uh the fair use argument would not necessarily distinguish between on-campus and off-campus. And we’ve, we made that argument about software uh in the DMCA last last, last round, we argued for off-campus access to software because we didn’t see any fair use reason to limit it to on campus.

Allison Schein: Great. Thank you. Uh someone we uh weighed in if they’re not mistaken, part of the problem of recordings of historical radio. Oh, wait, was there a radio question? Um, historical radio is the undefined copyright status of the original broadcast? For example, if it was an interview without music, without a script, does it carry much less risk than a broadcast of a radio play with music?

Brandon Butler: [throat clearing] Yeah. Yeah. And a again, um, it’s true that you could if you wanted to sort of go down the rabbit hole of figuring, I mean, there’s some very tough technical copyright questions about copyrightbility of this kind of material. Um where there, there was a broadcast but there was never a uh there was not a script, for example. Um And you could say you, you could, you could, you could go down that rabbit hole. But again, the, the, the nice thing about fair use is if you have a, a good fair use rationale for preserving and providing research access to sort of a collection or a broadcast, then you don’t have to say, well, we’re gonna, for example, we’re gonna take out everything that was scripted, you know, because that doesn’t work, right? We can’t, the, the scripted stuff is not safe but the unscripted stuff is OK. And fair use actually has a nice kind of universality to it. If, if it, if it applies, it will apply without regard to those kind of finicky technicalities which again, sometimes those can be really interesting, you know, if uh some of some, you know, if a, if an item is in the public domain, for example, right, due to failure to meet some of the formalities that were, that were required before the 1976 Act, that’s huge. If something is in the public domain, then you can do anything with it [Right.] and you don’t even have to think about fair use. And so it can be worth picking through these kind of finicky details if you wanna sell copies, for example. But in a, in a research context, um I think that often it’s more efficient not to worry about the finicky stuff and to use fair use to get the big jobs done.

Allison Schein: Um Great. Um Does transformative use uh play a role in software video game uh emulation as opposed to just transformation? What about software editions and older version that maybe aren’t supported? But new additions are coming out and still actively sold?

Brandon Butler: Yeah, check out the code. Um I think you will, you will find it very interesting but the short answer is uh yes, it’s a lot about emulation. Uh emulation is a huge part of why we’re interested in this stuff right now because it’s making um software access and preservation so much easier.

Allison Schein: Great. And then um real quick if you can answer this in, in a minute because we wanna mindful of everybody’s time and health. Uh Can you comment on the Internet Archive’s digital controlled uh lending program which contains many in-copyright books.

Brandon Butler: Yeah, I mean-

Allison Schein: works, excuse me, not books works in.Yeah.

Brandon Butler: Yeah. Yeah. Yeah. Um all I can say about it is that uh the, the, the fair use argument for controlled digital lending is at its strongest when you can tell a story about why the the lending is kind of non-substitutional, right? It’s non, it, it is transformative, it’s, it’s, it’s working in a way that’s not unfairly competing. And so, you know, II I don’t fully embrace the kind of argument that that controlled digital lending is always and per se fair use. I think it’s fair use sometimes and not fair use other times. And we’re still working out which uses are in those two categories if that makes sense.

Allison Schein: Yeah, great. Well, thank you so much. This was really a treat. Um and, and really very, very informative and thank you again, especially uh after so recently catching COVID, we definitely appreciate you spending your time with us

Brandon Butler: You bet. Thanks for having me. It was very fun to speak with you all.

RPTF Copyright Series Session Two

About the series: The Radio Preservation Task Force’s Education Division, in partnership with the Preservation Division, invited three lawyers to discuss copyright as it pertains to audio-visual materials, specifically audio/radio collections over the course of three sessions.

We are excited to present the second session here featuring Kevin Smith, for his presentation, “Teaching Libraries about Copyright in Sound Recordings.” This presentation was held on November 17, 2022.

An interactive transcript can be found below the video.

About the presenter: Kevin Smith became the first Michael and Eugenia Wormser Director of the Libraries at Colby College in August 2022.  Prior to Colby, he was Dean of the Libraries at the University of Kansas, where he also taught Copyright Law as Courtesy Professor of Law.  He became dean at KU in 2016 after 10 years as Director of Copyright and Scholarly Communications at the Duke University Libraries. In his role as both a librarian and a lawyer specializing in intellectual property issues, Smith advises faculty, staff, and students about the impact of copyright, licensing, and the changing nature of scholarly publishing in higher education.  He has also taught a course on Legal Issues for Libraries with Will Cross at the UNC School of Information and Library Science.  Smith is the author of numerous articles on the impact of copyright law and the internet on scholarly research as well as libraries’ role in the academy. He has been a highly regarded blogger on these issues for many years, and in 2013 published Owning and Using Scholarship: An IP Handbook for Teachers and Researchers with the Association of College and Research Libraries.  His book on Coaching Copyright, with Erin Ellis, was released by the American Library Association in the spring of 2019. 

Maristella Feustle: All right, I think the the pace of people joining, joining the meeting has uh has settled down. So thanks to everyone for, for joining us today. Um This is the second in the series of talks on copyright uh sponsored by the, the Radio Preservation Task Force, which is a project of the Library of Congress. Uh This is the presentation by Kevin Smith who became the first uh Michael and Eugenia Wormser, Director of Libraries at Colby College just this past August uh prior to Colby, he was Dean of Libraries at the University of Kansas where he also taught copyright law. And um he became the dean at KU in 2016 after 10 years as Director of Copyright and Scholarly Communications at the at Duke University Libraries. In his role as both a librarian and a lawyer specializing in intellectual property issues, Smith advises faculty, staff and students about the the impact of copyright licensing and the changing nature of scholarly publishing in in higher education, he has also taught a course on legal issues for libraries with Little Cross at the UNC School of Li-Information and Library Science. He’s the author of numerous articles on the impact of copyright law and the internet on scholarly research, as well as libraries role in the academy. And he has been a highly regarded blogger on these issues for many years. And, and in 2013, published “Owning and Using Scholarships: An Intellectual Property Handbook for Teachers and Researchers” with the Association of College and Research Libraries. And uh his lastly, his, his book on “Coaching Copyright” with Erin Ellis was released by the American Library Association in the spring of 2019. So, um welcome, welcome Kevin. Um And uh many, many thanks for being, being here with us with us today. And uh we’re, we’re really glad, glad you’re here and looking forward to, to your talk.

Kevin Smith: Well, thank you very much. I’m delighted to be here. I’m going to apologize from the beginning for any uh unanticipated sound effects. I have a head cold, I’m not COVID, but I have a head cold and if I sneeze and sniffle and such, I apologize in advance. So I’m going to go ahead and share my screen and uh get started.

Kevin Smith: So I hope you all can see that screen. Thank you. So I chose as the topic, this idea of teaching librarians about copyright for a couple of reasons. First, although at KU I taught copyright in a law school, I’ve most, I’ve spent most of my career teaching librarians about copyright. Um And then I’m very aware that uh by the nature of the project that is sponsoring these talks. There are going to be people here who know a lot about these issues and I, I don’t want to be uh sort of beating a dead horse here. However, um I hope that the approach that I’m going to take, which is an effort to structure thinking about a particular copyright issue. That is how do we preserve a sound recording, um will help provide a pathway through what is a very complex area of the law. I’m also probably going to go quite fast through some very complicated material. But as I say, first of all, I really don’t want to um for those who know a lot about this topic and it is in many ways the structure uh that I, I think is important. So with that, oh, and by the way, if you have questions for me, that’s great, please put them in the chat if I see them and it’s uh it’s not too, too difficult, I’ll uh I’ll respond um as we go and if I don’t, they’ll collect them at the end and somebody will help me make sure that we get through any questions and I’m having trouble advancing my slides. Of course, I am. There we go. Uh Just follows as the day of the night. Um So copyright and librarians, librarians spend a lot of time around copyright issues more and more of course, as we make transitions in format and all kinds of things and copyright produces a high level. I literally stopped in the hallway coming in this morning with somebody with a copyright question and, uh, very concerned, uh, and, you know, the concern is sometimes it’s ethical. I want to do the right thing, but sometimes it’s really practical. I, I don’t want to get sued. I don’t wanna lose my house, which isn’t going to happen. And I try to reassure people, but that high level of anxiety means that librarians tend to self censor, they tend to not do things they would, that would be permissible because they’re not sure. And they’re concerned, um sometimes rights holders will talk as if librarians want to run amok and trample copyright underfoot. In my experience, nothing could be further from the truth. Uh by and large librarians want to obey rules and they’re frustrated when the rules are unclear or overcomplicated. Uh We’ll talk in a few minutes about a situation where the law literally has an exception to an exception to an exception. So things get pretty complicated and I think that’s frustrating. Many librarians have tried and many people, not just librarians have tried to develop rules of thumb in copyright to protect themselves. Uh It’s very common to hear about percentages of a work that you can use as fair use. None of those percentages are in the in the law and they’re almost always more restrictive than a fair use analysis would actually be, depending on the purpose because the amount that you use and fair use is intimately related to the purpose of the use. But again, my point is just that um librarians tend to be anxious about copyright, they tend to want clear rules and uh they tend to self-censor. That’s been my experience.

Kevin Smith: Copyright is complicated. It’s a mess in a lot of ways, an early judge, this is just a story, in the famous case of Folsom v Marsh from 1843 that uh was the first use of what we now call fair use. Uh But in that case, Judge Story said that copyright approaches as near as any of our law to the metaphysics of the law where distinctions are very subtle and refined and sometimes almost effervescent. Um So copyright has always been very confusing, very hard to get a hold of. As music copyright can be some of the most complicated Uh it is often a thicket of rules and licenses and I love this statue which is is called the uh Ram Caught in a Thicket, a reference to a biblical story. But uh the idea of being trapped in a thicket uh and not able to find our way out I think is uh common. And so what I will have tried to do is guide people through a process to help handle that ambiguity. Um The process that I use is a structured approach to any copyright issue. Uh it does not reduce the complexity. Uh And I think the rest of my presentation will prove that it doesn’t reduce the complexity because there’s plenty of complexity. But I hope it offers a guidepost that allows people to navigate that complexity.

Kevin Smith: So the core of the process that I want to suggest is to, is to ask people to pose five questions, the answers, these questions should be treated in order. It’s the order is intentional and it helps uh to make sure that you’re not arriving at issues you don’t need to address. Uh far too often people confronted with copyright issues start with fair use. Um And any, any question they want to try to figure out whether the use is fair use. In fact, I think fair use should be the fourth thing you look for. Um And this, these set of question is designed to help people ask in a particular order, the things they need to know in order to arrive at an answer. Um We will not be looking today at the second question about a license. Uh That’s too situations specific. Uh And at the very end, I’ll mention the question of who can you ask for permission? But for the purposes of this discussion, I want to focus on three of these questions again, in the order they’re, they’re written here. Is there a copyright? Then number three, does one of the specific exceptions in copyright help and the third question or it’s the fourth question nonetheless, is this a fair use? Um I do think it is important to look at the specific exceptions and especially in this case of preserving a sound recording, uh the specific exceptions are important and in many cases, very helpful uh before we get to fair use. So again, the order here is important and it’s intended to help people analyze the issue in a logic of the issues in a logical way.

Kevin Smith: So when we’re talking about preserving sound recordings, we’re almost always in the realm of music copyright. And as I said, music copyright is one of the most confusing areas of copyright law and even longtime experts in copyright uh throw their hands up and shake their heads at music copyright. Um Lot of reasons for the complexity. First, there are multiple rights in any musical recording. Uh Of course, composer and lyricist may have rights, a performer has rights and those rights are different than the rights of the composer and the record company probably owns rights. Uh So you’re always dealing with sound recordings with multiple rights, I suppose you’re not if a single person turns on the recorder and speaks into it, they would be the sole copyright holder in the recording. But in the vast majority of cases, and certainly if you’re talking about preserving recorded radio programming, uh you’re talking about multiple layers of copyright and the copyright protection differs. Uh The composition, the composer and lyricist is protected under one set of rights, uh all six of the exclusive rights that copyright grants. Um but the performer uh the recording uh is only protected by four of those rights. So it gets complicated because we’re talking about different protections for different forms of a work. Then there are different conflicting decisions. Uh One of the most contested areas in copyright is sampling.

Kevin Smith: Uh The, the recording of uh music from one recording on to another. Uh There have been very conflicted decisions here. And by the way, this is the area because we’re talking sampling uh occurs a lot in hip hop music. Uh This is one of the areas of copyright where the idea that copyright is a neutral law that applies equally to everybody uh is disparate. Uh The sampling decisions clearly show a disparate impact on musicians and other artists of color. Uh and also gender disparities. Um So that’s a really complicated where there are conflicted decisions and there is clear evidence of bias in the courts.

Kevin Smith: And then there were changing rules. In 2018, the Music Modernization Act uh addressed the anomalous situation that we’ve had for many years that recordings that were fixed before 1972 simply were not protected by federal copyright law. Uh We introduced copyright protection for sound recordings in March of 1972 and it was not retroactive. So federal law never applied to sound recordings. Um And for sound recordings that were fixed prior to that day until the Music Modernization Act in 2018. Um So again, music copyright is a thicket of strange and apparently contradictory rules. So I, I should look to see if like half the audience has left because I’ve been very um negative about this. But we’re gonna try.

Kevin Smith: One other thing we need to talk about just because it’s a phrase that you hear a lot is the idea of broadcast rights or neighboring rights. In most countries, copyright law is one thing and then laws about performance of sound recordings are different. They’re called neighboring rights. They’re usually in a different part of the law in most countries and in the international treaties, uh that’s not the case in the United States. We include copyright for sound recordings in our regular copyright regime. That’s why you have those places where the law, you know, these rights apply to everything else, but only these rights apply to sound recordings because we haven’t broken out neighboring rights. We’ve instead tried to uh gerrymander the law uh so that it can deal with sound recordings in the same body of law that we deal with novels and works of art. So neighboring rights in other countries pay royalties to performance, performers on sound recordings. So when a sound recording is broadcast on the radio or played publicly, there is a mechanism for performers to get a royalty. The United States does not recognize a public performance right in sound recordings and performers do not earn a royalty for uh re- public performance of recordings on which they perform. Excelt that we introduced uh 19 in the 1990s I don’t know the exact date is a limited public performance right for digital transmissions of a performance. So analog radio, you still don’t get paid if you’re a performer, uh a sound recording, a performer on a sound recording when that recording is played. But if it’s broadcast in a digital transmission, you would get a royalty uh with this addition of the digital transmission, right, which is section 106 of the copyright law. Number six, it’s the sixth uh exclusive right in copyright. Um And then the Music Modernization Act came along and applied the entire set of exclusive rights to sound recordings. So now it’s no longer just sound recordings that were fixed after 1972. They have this digital transmission right. Now all sound recordings do.

Kevin Smith: Is it getting bad enough? It gets worse. Um I am going to get to my questions now and I hope that will at least begin to structure the information that we need to answer any particular question. But I wanted to build up. I wanted to show you what a mess this is. So the first question that I encourage people to ask is, is there a copyright? Um because often there isn’t more often than people anticipate. Uh You will find that there is not that a, a particular work is not protected by copyright for a variety of reasons, especially in the works from the mid 20th century. But when we’re talking about sound recordings, usually we’re going to find that there are several copyrights and I’ve already said there are multiple rights in uh a lot of sound recordings. Um There is for music, there are the, there’s the composition, right, the performance right. Um For a recording of a radio broadcast, you will have individuals who are speaking, you may have live performance, you may have recorded performance. So there is a lot of different material. It’s, there are usually multiple copyrights in those recordings and it’s often hard to find the owners. Um And I’ve already said a lot of this about pre-1972 sound recordings. Um The one thing I should add is that the uh Music Modernization Act of 2018 gave varying terms of protection to these sound recordings that were now being incorporated into the copyright, the pre-72 sound recordings. Recordings that were fixed before 1972 as they were brought into federal protection, the law designates different periods of protection.

Kevin Smith: So the term of copyright for most of them is 95 years generally. But depending on how recently, how close to 1972 they were fixed recorded, um there’s a transition period so they may have longer than 95 years and that was to prevent anything before 1923 from dropping immediately into the public domain. So again, there’s a lot of potential confusion around this question. Uh 95 years plus the transition period uh is what we have to look at for pre-1972 sound recordings and then the protection may depend on the use. Um I’ve said this before, but I can’t say I realize from teaching law students that I have to say these things multiple times in multiple different ways before the meeting [meaning?] because it’s so odd makes sense. The public performance right only applies to digital audio transmissions of sound recordings, not analog radio. That means a performer has the right to object or get a royalty for a digital audio transmission if their work is on Pandora or Spotify or Sirius XM Radio, but not for analog transmissions, um for terrestrial radio, for example. And it’s actually a little bit worse than that because the right in digital audio transmissions only applies to certain kinds of digital services, not subscription services. So I promised you that these questions would provide some structure. But I also said they did reduce the uh complexity.

Kevin Smith: As I said, we were going to skip over the second question because it’s very situation specific. So my third question, we’ve gone from the first question. Let’s first determine if there is a copyright who the rights holders are, what rights um apply to the particular use that we want to make of a sound recording. So that’s what you get out of asking that first question. They’re not easy to determine those things, but the first question guides you to that set of questions so you have the information that’s necessary to move to the next set of questions. The third question in my list of five is, are there specific exceptions in the copyright law that will impact our ability to do whatever it is with this sound recording that we want to do? And the answer is there are, and I’m gonna talk specifically about two of them. One is section 114. And if you know the copyright law uh in the first chapter, uh there’s some preliminary matters and then there is section 106 which tells us what the exclusive rights of the copyright holder are. There are six of them and can I do them off the top of my head? I don’t know. To make copies of a work: reproduction right. To um distribute those copies, to prepare derivative works, a public performance right. A public display right. And a right over digital transmissions. Those are the six exclusive rights. Um And then there are exceptions after section 106, they’re from section 107 which is fair use to section 121 or 122, I can’t remember how many sections there are in that chapter of the copyright law. They’re all exceptions. There are exceptions to the exclusive rights. In other words, the rights holder has the right to control these uses except in these situations. So sections 107 to 121 are exceptions to the exclusive rights. One of those is section 114 and it specifically applies to sound recordings. And the way it’s phrased in the copyright law is it’s a limitation on the scope of the exclusive rights in sound recordings. That is it narrows it down by providing exceptions, you have an exclusive right except in these cases, the scope is narrower. And the first thing you find in section 114 is that the exclusive rights in sound recordings do not include a public performance right. They don’t include the public display right either but who cares. But it’s really important that it does not include a public performance right in a sound recording. So suppose I’m driving my convertible around [Waterville Bay?], which should be very cold right now. But suppose I’m driving my convertible around and I have the radio on and I turn it up really loud. I’m potentially making a public performance of uh a sound recording or maybe I have a CD in. My car actually still has a CD player. My wife’s newer car does not. But suppose I have a CD player and I put a CD in, I’m making what is arguably a public performance because people around my car, I’m at a stop sign and they’re all annoyed with me because they hate my taste in music. I’m making a public performance of that sound recording. The performer has no right to object. They don’t have a public performance right in the sound recording, potentially, though the composer of the work would have a right to object.

Kevin Smith: Um So the exclusive rights do not include a performance right. That’s one of the things we learned from section 114, uh independent fixation of the same sounds is OK. That means covers. That means I can go ahead and make a recording of, it’s a horrible thought, but a recording of me singing some popular song that I really like. I can make that recording without having to pay a royalty to the performer, the first performer. But I would still have to pay a royalty to the composer because there is a, a reproduction right and I’m reproducing the sounds that that composer uh put together. But there is not a public performance right in the sound recording from which I’m making a copy, a cover. So that’s, that’s one piece of the law that’s very, very strange. I can’t tell you how often my students would come up to me with specific examples. But what if so and so records a version of this and my answer was always the same. The composer of the work has a stake in this. They always have to pay royalties to the composer. And there are structures for this. There is what’s called a mechanical license. Those royalties are paid to composers through ASCAP. That’s the one most people know. Um BMI Broadcast Music INC is another. Um ASCAP is the American Society of Composers, [Authors] and Publisers. They exist to collect royalties on behalf of composers um for their musical compositions. Uh So that’s the statutory licensing scheme that I’m referring to there. They always have a stake in a cover, for example. Uh Even though the performer, the original performer of the song did not. And looking at the time I’ll take just a minute to digress and say this is one of the places where the music copyright has routinely done a disservice to um performers from underrepresented groups. Uh For a long time in America, there was a whole industry of doing covers of songs by um African American artists by, they were covered by white artists to make them more palatable to the majority culture and sell more copies. And the African American artists did not get a benefit from this. They did not get royalties. So, um Nina Simone who uh recorded a song that was written for her called “Please Don’t Let me be Misunderstood”, it was re-recorded a year later in a cover by group called The Animals. Nina Simone got no benefit from the runaway hit The Animals made with that song. Pat Boone and Elvis Presley were both uh artists who made their livings for a long time basically in whitewashing um recordings by African American artists. So this provision about covers that excludes performers from uh royalties, Uh what did a significant disservice uh to African American artists and other uh underrepresented groups.

Kevin Smith: So, so what does this mean for use, this particular exception? Section 114, which tells us the scope of the exclusive right in sound recordings. Well, it tells us that the rights holders in the composition have a stake and that’s the mechanical licensing I was referring to ASCAP, BMI. It tells us that the performers rights will depend on the use. Covers don’t require permission from the individual performer and neither does analog terrestrial radio transmission. Um But digital transmission on certain services does um require a royalty to the performer. And since the Modern- Music Modernization Act made that rule, the MMA also establishes a mechanical licensing scheme. So performers will get a license. There are a few other people who get li uh licensing fees here for broadcast of their work through terrestrial, I’m sorry, through digital uh transmission. Uh There is the same mechanical licensing scheme for that, that, well, a parallel mechanical licensing scheme for them that there is for composers. Um So that’s section 114. Uh There is another exception that I think is even more on point for the particular question of, can we preserve a sound recording of a radio transmission? And that’s the specific exception for libraries, section 108.

Kevin Smith: Um It’s uh it is specifically for nonprofit libraries. Um It allows preservation and it allows uh resource sharing inter library loan. Uh You have to be a library to take advantage of it. Uh And it drives librarians crazy because the rules are so complicated in section 108. This is the place where there is literally an exception to the exception to the exception. I’ll tell you about that in a minute. Um Well, I’ll tell you about it right now because it’s the next thing on my list. Sorry about that. Uh The question is, does section 108 which allows a certain number of copies to be made for preservation purposes. Does it apply to sound recordings? Um to musical or video or audio-visual work? And if you read the text of that, they have the exception and you get to the end and it says none of the above applies to musical or audio visual works. So there’s an exception to the exception. But then it says accept that two of the provisions and that the two provisions that allow for copies for preservation do apply to music and audio visual works. So that’s the exception to the exception to the exception.

Kevin Smith: Um Why it was written that way? I have no idea. Although a lot of law is written that way, I think the issue is to try and be as specific as possible, but it makes things not at all clear. The result is that probably the two provisions about preservation copies being made for preservation by a library do apply to a recording of a radio broadcast. Um You can probably use sections 108 B and 108 C to make preservation copies. Now, there’s a limited number of copies and there is also a limitation on what you can do with a digital copy. You make an analog copy, that’s fine.

Kevin Smith: You can make up to three of them and you can do what you want with them, distribute them whatever. Uh But if it’s an analog copy, the uh provision says that it, if it’s a digital copy, I’m sorry. The provision says that you cannot distribute it outside the premises of the library to the public. There is no case law to tell us what that means. There’s a lot of disagreement about both premises of the library and who the public is uh in that provision. So we know there is some limitation on what you can do with a digital preservation copy. But there’s a good deal of debate about what exactly the uh the parameters are.

Kevin Smith: So let me get to well past time probably, um the real question, can you copy a recorded radio broadcast for preservation? What kinds of content are going to be there? Well, probably as I’ve said, recorded or live music, talk news, all of those things are likely to be treated slightly differently uh in terms of the rights uh that they have. And I’ve, I’ve done something to confuse you about that already. But um the bottom line is probably, again, no case law interpreting it and some ambiguities because of the complexity of section 108, but probably section 108 does allow us to make copies for preservation, three copies at most. And uh digital distribution is severely limited, but um probably section 108 does apply. So, remember we’ve asked, is there a copyright and seen some of the complexities there?

Kevin Smith: We’ve asked about the specific exceptions. 1 14 limits the exclusive rights in a sound recording in a way that other exclusive other materials are not limited. But that’s what section 1 14 does. Section 108 says probably um libraries, nonprofit libraries can make a limited number of copies for preservation purposes and they can distribute those copies except if they’re digital copies, which almost everything we make for preservation now is um there are limitations on what we can distribute. And then this last note, another exception, the copyright law, it’s not an exception to the copyright law. I’m sorry, it’s a separate section uh reminds us to watch out for unauthorized fixation. Um So this is primarily about bootleg recordings of live concerts and things like that.

Kevin Smith: And I could imagine such a thing being included in a sound recording of a radio broadcast. So you do have to be careful about unauthorized fixation. That is somebody who records, um, a copyrighted work, the performance of the song, uh, without authorization, that recording will not be subject to any of the protections or the exceptions in copyright. It is, in fact an infringement itself. And that’s what Chapter 11 tells us. So I’ve done my best to pull together all of the specific exceptions that apply when you’re looking at the issue of recording, um, or preserving a recording of a radio broadcast. And then there’s the question of what fair use supply.

Kevin Smith: And at this point, actually, I think I, and I think librarians in general should breathe a sigh of relief. We’ve gotten to the question that as uncertain as fair use is I think is the heart of the matter and often where we’re going to find that we’re gonna be OK. Um Fair use was written for libraries. It was written for the purpose of preservation, purpose of teaching, purpose of research. Uh It’s where the law is trying to help um those of us who are committed to preserving and distributing uh the knowledge of the ages. So if we look at fair use, we get uh almost, but it’s almost the typical pattern. The purpose of historical archive of a radio station, for example, is probably transformative and a transformative purpose is the single best thing you can get uh when you’re looking at whether fair use of, of and it’s a non-commercial use almost always.

Kevin Smith: So the purpose of the use. The first factor of the fair use test is almost certainly on our side, if we want to preserve, um, a recording for radio broadcast, the nature of the material, the second factor varies really widely. It’s almost impossible to apply this factor, but it doesn’t matter because courts pretty much ignore this factor. Uh, they look heavily at the purpose and much less at the nature of the material that’s being used. Amount varies widely as well. How much of a copyrighted work uh is being used in the work we want to preserve. It varies widely, but it’s often the entire work.

Kevin Smith: And so in the standard fair use analysis, that’s not going to count in our favor. But again, courts often tell us that if the purpose is transformative, the amount doesn’t matter or is measured by what’s needed for the purpose. And so using an entire work is often acceptable because it’s necessary for the purpose. Certainly, if the purpose of creating historical archive were considered transformative, you would make the argument that the entire work has to be part of that archive. So this one is probably not going to count against us. Um Although there’ll be a lot of variants in, in how much it counts for us or or not. And then finally, is there a market to be original?

Kevin Smith: The fourth very use factor? Um When you’re creating an archive, often for a radio station that’s gone out of business. And I’m gonna talk about an example in just a minute. Um, there’s no market for the original, uh, these are unique works. The co, the conglomeration that is a particular radio broadcast is a unique work that isn’t fixed anywhere else, uh, isn’t for sale. Um, I suppose there would be a question of whether an archive of a radio broadcast that includes Prince singing. Let’s go crazy.

Kevin Smith: Just to pick a song that’s has some history with copyright law. There’s a, there’s a radio, uh a recording of a radio broadcast that includes that. I suppose you could argue about whether or not making copies for preservation purposes of that recording that radio broadcast in any way damages the market to the sale of uh recordings of prints. But I think that’s really tenuous and I don’t think a court would consider that to be uh a significant form of market impact. So I think the fourth fair use factor is probably going to favor this question about making a copy of a radio broadcast for preservation purposes. I, I think we’re in good shape on one and four. That’s often the case.

Kevin Smith: We one and four, we either know they’re on our side or we know they’re not. And the other two are ambiguous and very often they decide the matter. And I think they do here. I think that probably the argument for making preservation copies of radio broadcasts, the fair use argument is probably going to favor the copying. I wanted to close or nearly close with uh an example that I was involved in. Um that is the radio Haiti archive at Duke University. Um And when I was first brought in to assess the the copyright issue, we’re making a digital archive available to the public of the broadcast of radio Haiti.

Kevin Smith: We had to deal with all of the complexities uh that I’ve just outlined for you. Uh But there were some unique circumstancess. This came to the library from the widow of the station owner. He had been a strong political activist and opponent of the uh the regimes of the Duvaliers in Haiti and he was assassinated for his politics. Um So she had a strong interest in bringing this archive to do, having us digitize it and make it available uh to the world on the web. She asserted that she had rights from most participants and she wanted this digital distribution. Um She didn’t have documentation.

Kevin Smith: Uh The lawyer in me was very skeptical about whether she actually had the rights, but this set of recordings was very important for the history of Haiti. Uh At the time, it was the only creole language radio station in the country. Uh but had a lot to do with political movements in Haiti as well as cultural developments in Haiti. Uh So the librarian and they really wanted to do this. The lawyer in the um was skeptical of the rights that the uh the widow was telling us she held. But also aware that um you know, the most likely person to object to the preservation and, or, and the distribution, the worldwide distribution of this material was this woman herself. And she was here saying I want this, that’s a really heavy problem on the scale of going ahead with this Duke did go ahead with it.

Kevin Smith: You can find it on the Duke uh special collections and archives website. Uh They rely on the rights of the donor um transferred to them and on fair use. And I think it has been fine. Uh It’s been several years since it’s been up on the web. And I think it’s been fine, but it’s an example of like, because like I said, all of those complexities came crashing down on me and then I had to stop and work carefully through them to come to the conclusion that yes, we could do this. There was a certain amount of risk, but there was also a real risk of not doing it. And we ultimately decided that it was the, the uh the value of preserving and making public this bit of history from Haiti uh was worth whatever risk there was.

Kevin Smith: And that brings me to the last thing I wanna say, which is, this is not just about anxiety reduction where I began this talk, but it’s about risk mitigation and copyright is almost always about risk mitigation. There are very seldom clear answers. I hope for better or for worse. I hope I prove that to you. Um So when you’re considering a large collection, like the one that uh of the, the Radio Haiti archives, I always recommend thinking about four different strategies. The first is to recognize that some of the material will be in the public domain. Remember my first question was, is there a copyright?

Kevin Smith: There’s more in the public domain than people realize because at least in the United States for a long period of time, about 40 years, copyright had to be renewed. Most copyrights were not renewed and things from the middle part of the 20th century dropped into the public domain. So even if we can’t figure out which specific items are and are not in the public domain. Recognizing that there often will be such materials in a collection helps reduce overall the risk that you’re running and the anxiety that you need to feel. So first start with that first question about the public domain. My second rule here and this is where I jump to question five. Remember who do I ask for permission?

Kevin Smith: Get permission from large or potentially Liu rights holders? You don’t need to get permission for everything. But think about who are the people who are likely to object and if possible get them on board. I worked on another project involving um a newspaper archive. It was about what was called the University of North Carolina Chapel Hill called the Long Civil Rights Project. Um And there were a lot of articles from one or two newspapers in this archive. Um, some of the first African American newspapers like the Chicago Defender, talking to them about the project really helps reduce the risk.

Kevin Smith: Not only did they give them permission, they were enthusiastic about it. Um So, you know, talking to large rights holders or potentially luti ones uh is a good way to reduce the risk even though you recognize that you’ll never find all the rights holders um support your fair use case, do everything you can to make the collection transformative. Uh especially for example, include historical uh background, historical references, you know, bring together things from your uh special collections to the creative context, a new context and the new meaning because that’s gonna be really important for the fair use case. And then the last one is always respond to inquiries. Um people call up and they’re angry. I dealt with a case like this where a person called me up angry because something she had written was in one of our archival collections that was online and the conversation, we did not have to take the material down. The conversation was long, but it was really fruitful for both of us because I learned more about the context that I was able to pass on to the curators.

Kevin Smith: And she recalled why, what she had written was historically insignificant. She recalled that this was important and she understood why we had put it in as part of the collection. And when we got off the phone, she didn’t want to want us to take it down and we had learned a lot so those conversations can be really, really important. But notice I’d say respond to inquiries, take down should be a last resort. Somebody who calls and is angry about this. So usually if you can’t come to the kind of conclusion I did with my person, if you can’t come to that kind of conclusion, you might say, well, it sounds like we just need to take this down, but that should be a last resort and that will satisfy the vast majority of people who are angry about something in your collection. So these four problems of strategy for risk mitigation, I think, you know, start with your five questions and end with these four prawns for risk mitigation.

Kevin Smith: And I think I hope that this structure will help you think through projects about all kinds of things, but including uh the preservation uh sound recordings of radio broadcasts. And I will stop through that and say, thank you for your attention. And uh can I answer any questions and I can’t see the chat or something?

spk_2: There are some questions and I realized when I came back on that my mic was not muted. So I apologize that there was all sorts of clicking noises. I was trying to get the captions figured out. However, let’s start with questions. Emily asks if I want to digitize a recording of, of a professor’s lecture at Bates or elsewhere. Do I need to attempt to get permission from the lecturer? In order to do so, what if said lecturer is deceased?

spk_2: How may I obtain permissions if any? And this is for in-house

Kevin Smith: use? Ok. Um, you know, that’s the situation where my first reaction would be to try and get permission because it makes things a whole lot easier. But first of all, is there a is there a uh a copyright? How old is the recording? Um We wanna make sure it was authorized that the person knew they were being recorded. So there’s all of those questions that I want to walk through.

Kevin Smith: But the bottom line for me is let’s reach out to family that’s who you would ask for. Uh especially for a lecturer who comes and gives uh you know, as an individual gives a lecture. Um The record, the authorized recording, the rights are held by the lecturer. No question about that. When that person died, they would have passed to their family. They very few people say in their wills. Here’s the people who get my copyrights.

Kevin Smith: Most people don’t even realize they have them. Uh So they pass in a will as part of a residual estate usually um very often to um a surviving partner or spouse uh them to Children. So my first reaction would be, can we find and reach out to um those people if we can? Then I think we’re in a fair use situation and you ask yourself those uh those factors. Um I think especially if you can put it in context where there are other lectures on the same topic where you can create a digital archive where they’re in dialogue, then you’re going to have a strong argument for a transformative fair use. So that, that would be my approach.

spk_2: Great. Thank you. Next question. Hi, Kevin. Thanks for this info. Is it possible to discuss a case study?

spk_2: I’m working on digitizing a portion of sound recordings from the 19 fifties for online use as well as preservation. Most of the recordings were live sound recordings, meaning meetings, events, demonstrations since these were never quote unquote published. Do the speakers captured in the sound recordings still hold copyright or would any permissions lie with the creator who recorded the sound? Would you support an order for work slash fair use determination if the errors of the speakers in this context

Kevin Smith: cannot be found? Yeah, there’s a lot in

spk_2: maybe that takes, gets taken offline if that

Kevin Smith: very well. And, and this is one of those points where I think, you know, I need to pay for a pencil in front of me. I need to be writing things down and things will get through. So I’m a little concerned about you relying on what I say off the top of my head. Ok. Fair enough. Yeah.

Kevin Smith: But having said that I’m gonna go ahead and say some things off the top of my head. Um So from the 19 fifties,

spk_2: yes, from the 19 fifties. Uh and it doesn’t sound like there were any performance. Uh It’s not like songs, right? So it’s meetings, events, demonstrations. So there might be chance. What not. And so since they were never published, do the features in the recording hold copyright or does it hold with the person who recorded the event?

Kevin Smith: Thank you. I uh I was pausing and giving me time to think and I have so to some degree put my thoughts together um under the copyright law that was in effect in the 19 fifties, um these unpublished works became protected by copyright. They were protected, they weren’t protected by federal copyright. Originally, they became protected by copyright in the 1976 Copyright Act. Um So yes, probably there is a copyright. It’s very well, probably there is an original copyright. It’s very hard to know who held that copyright because there would have been multiple speakers.

Kevin Smith: So that’s a mess in a way. But for recordings protected for anything protected by copyright prior to 1978 from the 1976 Act took effect. Copyright had to be renewed after 18 years, after 28 years. I’m sorry. After 28 years. There’s pretty much zero chance that if there was a copyright that it was ever renewed. And I’m, I’m questioning what I’m saying, even as I say, unpublished recordings are treated di or unpublished works are treated differently in the 76.

Kevin Smith: And so, yeah. Ok. No, no, no, I’m gonna, I’m gonna, I’m gonna just quickly go through my questions. I’m not sure whether there’s a copyright here or not. I really am not. I would need to do more work and we need to look at the specific materials to be certain. Um So I’m just not sure of the answer to. Is there a copyright?

Kevin Smith: So let’s assume that there is preservation recording, copying is almost certainly permitted under section 108. So to make copies for the purpose of preserving this history of your institution, I think that’s fine and I think probably a fair use argument will favor this partly because of the kind of recordings they are. Uh it’s not creative particularly, it’s factual. It’s just a recording of what wasn’t historical, if perhaps not historic event. So I don’t have a problem with doing this. I have some uncertainties at the very beginning that I would just need to work through more carefully about whether there’s even a copyright. But assuming there is, I think it’s probably a safe activity.

spk_2: Great. Thank you so much. Next question. Any specific guidelines for digitizing a public radio interview program, air dates 1972 to 1990. Uh The interviewer died in 1997. Are there any uh resources that you can point

Kevin Smith: to? Well, there are likely resources uh for that specific situation and I don’t think I can.

spk_2: Yeah, I would invite David if he hasn’t already to check out um the association for recorded sound collections website and the International Association for Sound and audio Visuals Materials. They might be able to point you or help you in that

Kevin Smith: direction. Yeah, thank you. That’s great. Otherwise, there’s probably a copyright in most interviews. In fact, uh there are works of joint authorship in the sense that the interviewee and the interview are both full copyright. One of the things that means is you only need, if you’re going to get permission, you only need permission from one of those uh you because that’s the rule for works of joint authorship.

Kevin Smith: Um In this case, you say the interviewer who’s presumably the consistent voice is deceased might go to the interviewers family to see if there are, if they’re willing to transfer whatever rights they might hold, that would significantly reduce your risk. Um Interviewees, it’s gonna be a little harder because presumably there are a lot of them and you don’t want to invest in trying to contact them all so that you work your way down through the list. I’ve started with my question about permission. I know, I’m sorry, I’m, I’m sort of breaking my own rule here. But then you go back and look at fair use and again, an interview program, uh

spk_2: I would check for releases there might be in there.

Kevin Smith: Thank you so much. Of course, you would look for releases. So you should follow my questions the way I said, rather than the way I just did look for releases. Um, are there releases from the interviewees? That’s certainly best practice. That will help you a lot.

Kevin Smith: So, is there a copyright that look for licenses in this case? Releases from the interviewees? Um Specific exceptions. Again, you’re gonna have the ability to make preservation copies uh within some limitations, fair use. You probably are going to have a strong fair use argument here. Preservation itself has been recognized by the courts in the Hoppy Trust case as a P A transformative purpose. Um So you probably have a good fair use case.

Kevin Smith: And then the last question about who to ask permission, I think I’ve already addressed. So,

spk_2: and for our last question, thank you, everyone. I know we are uh a little over time but we appreciate you sticking with us are radio broadcasts originating outside the US but held and used by a library in the US subject to us. Copyright law due to the Bern convention.

Kevin Smith: Oh my heavens. Uh talk to your lawyer. That’s the best answer I can give you. But I, I will say this at the very least the existence of a copyright will be determined by the law of the country of origin. Um So you’re not going to be able to simply ignore the foreign origin here and then other countries have neighboring rights. They’re usually less protective than, um, us copyright law because we just lumped sound recordings into, uh, our regular copyright law.

Kevin Smith: They actually have more protection in the US than many neighboring rights provisions in other countries laws would give them. Uh So you need to determine term of protection based on the law of the country of origin. If there is a copyright, you certainly can rely on fair use or the other provisions of the US law. I would just be aware that if you put this out on the internet for everybody and somebody really does object, then you could be sued in the country of origin uh because a plaintiff might consider that a better forum. So there is some risk here. Uh And ultimately, I, I think my questions and especially my, my four prongs of strategy at the end are helpful here, but probably this is a case where you need to sit down with an attorney who represents your institution and uh make a risk assessment.

spk_2: Great. Thank you. And while I said it was gonna be the last question uh before I just want to address Frank’s point really quickly, I think I know the answer, but I’ll see it’s a very easy. Uh You mentioned the permissions are only applicable to libraries is an archive considered a

Kevin Smith: library. Well, section 108, that’s specific uh inception is only applicable to libraries fair use. Everything else is applicable to everybody. Uh 108 is applicable to libraries and archives. So it does archives. There is actually there has been proposals to broaden its applicability to include museums.

Kevin Smith: It does currently but it does include libraries and archives on the first provision. Uh in section 108 gives you a definition of, of who to whom it is.

spk_2: So, and Emily says, thank you, Kevin. This is this presentation, your extensive knowledge and your answer to my question has been extremely helpful. Can she reach out to you for any additional questions as she puts together her uh proposal for her digitization project and from your sister to college?

Kevin Smith: Of course, that’s fine. Great. I like answering copyright questions actually.

spk_2: Thank you everyone I think can close us out.

Maristella Feustle: Sure. Yes. And uh thanks again to, to Kevin Smith. This has been, you know, I’m a, I’m a top, you know, copyright, not fan, but uh definitely a close follower and this has been dynamite, I think for the, the structure uh and clarity that it’s provided. So, so I’ve, I’ve, I know I’ve really enjoyed today’s presentation and especially uh the, the issues of equity and the application of the laws and in and in court cases. That’s an important point that I think doesn’t get brought up often enough.

Maristella Feustle: And also uh just the, the need perhaps for a wider conversation on section 108 because I think it, that is kind of the, the, the trap that a lot of people run into and they’re trying to figure out what does section 108 say we can do in the digital age. So, yeah, I uh I think today today has been a really, really enlightening session. And so we, we thank, we thank Kevin again and it also sets up our next uh speaker in the series very, very well. Um Brandon Butler will be speaking on particularly uh overcoming risk, aversion and fair use. So, so we have, we have kind of a kind of a, a good progression here at our first session. Charles talked about kind of the history of, of these laws and why things are the way we are or why, why they are the way they are. Uh Today, we’ve, we’ve talked about some of the particulars of navigating uh compliance with the law and considerations of fair use and then we’ll, we’ll dig into fair use some more next time. So again, uh uh this has been a spectacular session.

Maristella Feustle: Uh Thanks to all of you for joining us. Uh Thanks once more to, to Kevin Smith and we’ll hope to see you for the next session.

Kevin Smith: Thank you.

Maristella Feustle: Thanks.

RPTF Copyright Series Session One

About the series: The Radio Preservation Task Force’s Education Division, in partnership with the Preservation Division, invited three lawyers to discuss copyright as it pertains to audio-visual materials, specifically audio/radio collections over the course of three sessions.

We are excited to present the first session here featuring Charles Cronin, who speaks on the lasting ramifications of the case of White-Smith Publishing Co. v. Apollo Co. (1907). This presentation was held on October 20, 2022.

An interactive transcript can be found below the video.

About the presenter: Charles Cronin (B.A. Oberlin; J.D. American; M.A., Ph.D. Stanford; M.A. Information Systems, Berkeley) is a musician and lawyer in Los Angeles. He established the Music Copyright Infringement Resource while a graduate student at Berkeley in 1997 and continues to oversee the project’s increasingly distributed authorship. He is a Visiting Scholar at GWU Law School and an Adjunct Professor at the Claremont Graduate University of the Claremont Colleges.

Charles Cronin: And, and so um let me, let me got it. Ok, let me share my screen and um a few slides that I wanted to uh discuss with you. Let’s see, slide show, share screen. Uh Let’s see. OK. [mouse clicking] Is my screen now shared?

Female voices: Yes, it is.

Charles Cronin: It is terrific. Ok. Let me just. OK. So I wanted to uh begin with a very uh uh broad uh consideration of uh two fundamental um but rather difficult issues uh that arise with every uh every copyright dispute, every copyright uh uh issue. And that is um the truth, what is considered legally protectable, copyrightable expression and for how long does copyright protect? So let’s start with for how long it’s protected. Um And in uh in considering both of these questions, one thing to bear in mind is that it’s um uh both the term and the scope of copyright protection are flexible and are there’s no, there’s no uh uh uh a fixed term for, for um all of uh for for eternity. It’s, it’s a constantly evolving uh process, both the term and the scope of copyrightable protection. So let’s start with the, with the term for how long is it protected? Well, on the slide, you can see it’s continually uh changing and you’ll also note it’s continually expanding. Um so the first term in the late 18th century was a 14 and 14 renewal term of a total of 28 years. Um and [throat clearing] for the next three revisions of the Copyright Act, which was in 1831 and then 1909, the term continued to expand, but note the word renewal, um renewal um implies what are called formalities. And that is registration issue of publication. Um and uh the fact that you had to renew your copyright the way today you would have to um uh renew a trademark by indicating that it’s continually in use. This, this renewal requirement, the formality of requirement of dealing with the copyright office and making a formal claim and renewing the formal claim uh for copyright protection came to an end in 1976 and 1976 is the law, the act in which under which we’re currently operating, which doesn’t mean that the term um has been uh the term that was established at that time is current. So in 1976 the term was the life of the author plus 50 years. So query whether in some cases if the author dies within the year of uh of uh of, of uh of, of creating the work, the term coul- his, his or her term could be in fact shorter than that under the 1909 act. Um so it’s the life of the author plus 50. Um this was expanded thanks to Sonny Bono in 1998 in the 1998 act that extended it to life plus 70. Um this is also known as the um uh OK, I would say not paradoxically but uh um scathingly perhaps as the Mickey Mouse Term Extension Act. Um they, because many people think that essentially Disney was behind this because they wanted to protect their uh their seminal uh characters.

Charles Cronin: Um in any case. Um it and I should also caution that when I, when I say the term is life plus 50 or life plus 70 there are many variations on this uh on this term depending on um whether it’s a corporate author or a joint author or a single author. So this is just a broad uh statement of the, the uh of the, the current term of copyright protection. Um and as I, I fo- im- implied there, it’s, it’s quite tricky to determine whether something is, in fact within uh copyright. Uh uh it still within cop under copyright protection. There are a couple of good resources that I wanted to bring to your attention. You may be familiar with them because both of them came from the library uh World One is by Lolly Gasaway who’s now retired um uh who created a a a a really superb chart where a kind of a um a kind of an algorithm by which you can determine whether a work is still protected by copyright. Um and that’s uh you’ll find that all over the, all over the web. It’s now been uh used and linked to by virtually every fair use uh site of every library um uh in the, in the country um and probably elsewhere as well. Um and then there’s uh another, even perhaps more complex uh version of this uh when do works fall into public domain by Peter Hirtle at Cornell. And so I’d encourage you to uh take a look at these uh these guides uh which will uh as I mentioned, sort of present an algorithm for determining whether a work is still uh under copyright protection. Uh The Peter Hirtle uh guide is particularly um uh valuable and that it deals with um international copyright. So it’s not, not limited to uh US uh copyrighted works in the United States.

Charles Cronin: Um so, um and even while these are models of clarity, you’ll, you’ll see once you, you take a look at these um these guides that they uh that they, it’s, it’s not an, it’s not an easy question. They, it, it probably uh these guides raise a lot of questions um in the, the minds of the user as to whether a work has been published. And when was it published? Um uh uh when was it created, etcetera. Um but they are a very good starting point for determining whether uh a work is in the public domain. OK. So now we turn to the issue of what is copyrightable and like the term um the scope of copyright protection continually uh morphs and essentially it almost continually expands.

Charles Cronin: Um so if you have the very first US, copyright uh act from 1790 protected, specifically maps, charts and books. Um andvif you think at the time 1790 the, the US was very much a developing country and what was valuable at the time? Well, maps, charts and books. So factual information is very valuable, whether it was like tie charts or uh or or surveying maps. And these were con considered obviously valuable works of uh intellectual property of authorship and they were uh and hence, they were, they were protected by copyright. Um in 1831 musical works were specifically included in-

Charles Cronin: in- hello,

Allison Schein: Sorry about that. You’re on again.

Charles Cronin: I’m on. Ok. Yeah. Ok. So I’m not sure exactly where I was cut off. But um 19 so in 1909, a very significant development that we’re going to talk about um in, in, in greater detail, um musical works in a format rendered mechanically were protect, specifically identified as protectable works um uh under the statute. Um and we’ll see how that came about and why. Um and then 1976 the, the uh the door was flung wide open and any original work of human expression that was fixed was prot- uh potentially protectable. So there are a couple of things to bear in mind here on the 1976 act, which is still, uh still uh current, the current statute, um, original works of human expression. That means it has to be a human. So if I record my dog barking, that’s not a, um, a uh, a protectable expression, um, has to be human expression and it has to be original. What does that mean? It doesn’t mean it has to be brand new. It means it has to be specifically created by a an- the individual who’s claiming protection. So that means if for some reason I wrote word for word Shakespeare’s Hamlet without ever having knowledge of this, of this work prior I could copyright Hamlet from, from the moment I fixed the work. That means I have a copyright in Hamlet, but that doesn’t mean anybody can perform or copy Shakespeare’s version. So my copyright is useless, but technically, I could have a copyright, copyrightable work in something that existed before as long as it was original to me, as long as I created it.

Charles Cronin: Ok. Um so, so once again, copyright, the scope of copyright protection continually expands. So it started out with maps, charts and books which included a lot of, a lot of factual works. Um and uh by, but by 1976 so it was original work of uh of human expression basically anything that can be fixed in a tangible medium of uh uh a tangible format. Um one thing to bear in mind also is that over time, um copyright has moved, moved away from uh protection of factual works like tie charts and surveying chart. And in fact today, uh factual works are not protected by copyright. So if you have a uh you know, telephone book, um that’s just uh you know, rote uh listing of numbers and addresses, names um in an alphabetical order that’s, that’s not protectable um because it’s not, it’s purely factual. Um so it has to have <