Submission Date:
Question:
In the spring, it was clear academic libraries providing digital resources were in a state of emergency and fair use restrictions were loosened.
This fall, we are asked to plan for face to face learning, but we may be asked to turn on a dime and provide digital resources overnight if a student or faculty member in a course is unable to attend class.
We are hearing mixed messages from other institutions. What is our situation today, emergency or status quo?
Thank you
Answer:
Before I answer this question, I do have to emphasize: as I wrote here, fair use was not modified during the height of the initial pandemic closures. Further, there is no case law or regulatory guidance indicating things will be any different if we have to return to the level of lockdown experienced this Spring.
There is no "emergency use" exception to copyright law--even under fair use. That said, this is an excellent question that captures the experience of working in higher education right now, and I do have a few helpful things to offer in response.
Higher education libraries trying to support another immediate conversion from in-person to online learning should consider doing the following:
1. Work with their academic and IT colleagues to optimize their institution's rights under the TEACH Act, which under the right conditions, allows the digital transmission of copyright-protected material.
"Optimizing," in this case, means presenting otherwise inaccessible materials in class, so the TEACH Act's[1] exception infringement can be fully used, while making the most of the medium. For example, if a history class would typically read a chapter of a book before class, then meet in person to discuss the chapter, perhaps now a part of the online class could consist of the faculty member or students reading the chapter aloud,[2] and the class using an asynchronous message board to discuss it.
This method requires faculty to be flexible, but it is one way to ensure access for all, when all else fails.
2. Unite with other institutions to re-negotiate the terms of digital licenses from academic publishers.
I cannot stress this one enough. Academic libraries must unite, must negotiate hard, and must threaten to boycott any publisher that refuses to offer a reasonable price for students to access content online. This was critical before COVID, and it is even more critical now.[3]
3. Much easier, and even cooler than #2: plan to collaborate with students' local libraries to ensure students can take full advantage of Copyright Section 108's support of access via inter-library loan.
What?
That's right. Let's say I am a college student from Littleplace, NY. Suddenly, it's October and I have to vacate my dorm room at ABC College, due to a local surge in COVID-19. To be ready for the rest of my (now online) classes, I need 12 articles, a textbook that costs $500 (that I was previously sharing with two friends), and a course pak I forgot in my dorm.
So long as I have access to the list of materials, I can head over to the Littleplace Library (or call them) and work to find the materials I need. Using its rights under Section 108 of the Copyright Code, the Littleplace Library can get me a copy of the articles...possibly even in collaboration with the ABC library, or another academic institution with the right subscription.
In my observation, this is a very under-discussed option. Remember, your students have a right to work with their local library to get copies under a combination of 108 and (on the part of the student) fair use. The key is having the course materials listed in such a way, that the local college or public library can easily (and quickly) help them.
This, by the way, is one of the many reasons it is critical to keep open every single one of our small and mid-size libraries in small towns and villages across the country.[4]
4. Use your institution's compliance with NY's Textbook Access Act.
This is another "if you have time" one.
In New York, all higher education institutions and publishers must follow this law[5]:
Textbooks shall be sold in the same manner as ordered by such faculty member or entity in charge of selecting textbooks for courses. In the event such product is unavailable as ordered, the bookstore, faculty, and relevant publisher shall work together to provide the best possible substitute that most closely matches the requested item or items, and the publisher shall make available the price of such substitute or substitutes readily available.
This clause has always been applied to combat predatory pricing for course materials, but lends itself to the current situation, too. If the instructor was given a discount digital copy, the students should be able to buy one, too.
5. Take some time to examine the latest ruling on academic e-reserves and fair use, so you feel comfortable making the call when you can post things on e-reserve without permission.[6] Fair use has not been "loosened," but it still has lots of room. The full document has been updated to "Ask the Lawyer" as "Becker Ruling 2020." It's boring,[7] but very instructive.
My best wishes for a supported and supportive prep for the Fall semester.
[1]The full requirements of this law can be found at: https://www.law.cornell.edu/uscode/text/17/110
[2] This would also allow presentation through adaptive technology, for those who need it per ADA.
[3] I understand if you are too busy coming up with an "August Staffing Plan" and trying to figure out where to get 10 gallons of hand sanitizer to organize the revolution. But this really is important.
[4] As if I have to sell most of you on the importance of funding libraries.
[5] Full text at https://www.nysenate.gov/legislation/laws/EDN/722.
[6] Always use your institution's fair use form to record your conclusion.
[7] The helpful stuff starts on page 6.
Tag:
Academic Libraries, COVID-19, Digital Access, E-Books and Audiobooks, Emergency Response
