Posted by: bluesyemre | September 16, 2020

#Digitization in an Emergency: #FairUse/Fair Dealing and How #Libraries Are Adapting to the #Pandemic

image CC-BY-SA 4.0 by Dvortygirl

Like every other major institution operating during the coronavirus pandemic, research libraries are confronting sudden and radical shifts in their daily realities. Foremost among these challenges is the near-total loss of access to paper books and other physical library holdings. As of today, nearly every ARL member in the United States and Canada has closed its brick-and-mortar facilities and discontinued or severely limited access to print collections. The same is true for most other types of libraries—both local public libraries and school libraries are widely shut down. This emergency is truly unprecedented in modern times, even during times of war.

During the shutdowns, most libraries and their users must now go entirely online. The problem is that the digital availability of many library holdings is not equivalent to their physical availability. For example, the vast majority of books from the 20th century are long out of print and have never been published in any e-book form. And even for materials that have been digitized somewhere, those digital copies are often not available from most libraries.

The present emergency in library access comes at the worst possible moment, when much of society and daily life is moving entirely online. Broadband networks are straining under massive traffic growth. Demand is skyrocketing for scholarship, knowledge, and culture in digital form, for all sorts of reasons:

  • As classes move online, professors and students need digital access to course materials, which previously were shared or displayed only in a classroom, or retrieved from their library’s physical reserves. 
  • As labs shut down and conferences are canceled, researchers rely entirely on remote collaboration and digital publications and data, so that scholarly progress (and their own careers) do not grind to a halt. 
  • To ward off loneliness and maintain their social fabric, all sorts of community groups—from student organizations to book clubs to religious congregations to political activists—are convening on video chat sessions, often revolving around shared media.
  • Small businesses, families, and individuals are figuring out how to adapt to unfamiliar circumstances—making hand sanitizer and surgical masks, serving the needs of newly isolated elderly and vulnerable neighbors, repairing their own electronic devices, and on and on. 

For many who are stuck at home, one silver lining is suddenly having more time and motivation to learn and create, and to share in these endeavors with others. This is a time not just to read, watch, and listen, but to study and explore. More people than ever are performing music and art online, launching podcasts, uploading videos, and discussing anything and everything on social media. None of this creation happens in isolation—nearly all of it builds upon, and relies on the availability of, what came before. This is the fundamental purpose of libraries: to provide unstructured access to the wealth of human knowledge and culture, sparking self-directed learning and creativity. In the current moment, this service is more indispensable than ever, even when libraries must literally close their doors. 

To their credit, many academic publishers and vendors have responded to the pandemic by loosening restrictions on many digital works and databases. However, more generous licensing terms will not be a full solution to the present emergency. Identifying all of the access gaps and negotiating solutions with individual content providers can take enormous effort and time, far too long to fill the needs that are already here today. Especially for older materials, there may be no digital versions at all. And that’s assuming that a book, film, or other work isn’t orphaned (meaning that it would be practically impossible to find and contact the copyright holder to negotiate a digital license).

Fortunately, the principle of fair use—a pillar of the US copyright system—provides a crucial safety valve, as does the doctrine of fair dealing in Canada. Research libraries have taken the lead in clarifying and applying fair use and fair dealing to the present crisis. Earlier this month, a broad group of copyright experts from university libraries published a statement on fair use, explaining how, “while legal obligations do not automatically dissolve in the face of a public health crisis,” US copyright law is “well equipped to provide the flexibility necessary for the vast majority of remote learning needed at this time.” Similarly, several experts on Canadian copyright law posted a detailed analysis of why “the circumstances of the current emergency justify a broad construction of fair-dealing.”

What are these fair uses in practice? To begin with, academic libraries are necessarily digitizing more materials in response to specific demands. For example, the University of Georgia Libraries are “providing emergency scanning of print and digital materials from our collections to our faculty and students to ensure that…education and research remain continuous.” Cornell University Library has advised faculty on how to assess “whether fair use permits scanning” of physical materials for online teaching. However, selective scanning is not a comprehensive solution. As the pandemic worsens and shelter-in-place orders proliferate, many libraries have had to send all of their staff home, leaving no one to pull books from the stacks and digitize them.

In response to unprecedented exigencies, more systemic solutions may be necessary and fully justifiable under fair use and fair dealing. This includes variants of controlled digital lending (CDL), in which books are scanned and lent in digital form, preserving the same one-to-one scarcity and time limits that would apply to lending their physical copies. Even before the new coronavirus, a growing number of libraries have implemented CDL for select physical collections. For example, MIT used CDL for a collection of works that were inaccessible during the renovation of one of their libraries. The justifications for CDL, both in legal and public interest terms, are at their strongest right now, to allow for continued progress of the arts and sciences while physical library holdings are broadly inaccessible.

Just this week, HathiTrust launched the Emergency Temporary Access Service (ETAS) for US member libraries experiencing “an unexpected or involuntary, temporary disruption” requiring closure or restricted access to print collections. Like other iterations of CDL, the ETAS is grounded in fair use, enabling one-to-one digital access corresponding to physical holdings. Crucially, this service harnesses HathiTrust’s existing repository of digitized items to meet immediate needs, rather than forcing libraries to digitize on their own. 

At least one other institution has gone even farther in response to the present access crisis. Just last week, the Internet Archive announced the National Emergency Library, which will provide temporary online access to 1.4 million books in its collection, through “June 30, 2020, or the end of the US national emergency, whichever is later.” To be clear, this is not the controlled digital lending model. While the National Emergency Library includes digitized books previously provided through CDL, it eliminates their wait-lists, allowing more than one user to borrow the same book at the same time (while still maintaining other restrictions through DRM). Note also that authors can contact the Internet Archive to remove specific works from availability. 

Whether or not one believes that the National Emergency Library falls within the scope of fair use, the underlying need and urgency is undeniable. Many individual librarians have endorsed the National Emergency Library (NEL) on this basis. The major lobbying groups for authors and publishers have expressed “outrage” at the initiative, though some individual authors have been much more charitable. In reacting to either the NEL or any other adaptive measures, we hope that copyright owners will take a full and public-spirited view of the current crisis. The pandemic has not suspended copyright law or contracts, but our collective focus should remain on finding solutions to the most urgent practical challenges, so that we may sustain teaching, learning, and scholarship in these uncertain times. 

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