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