Wednesday, September 29, 2021

Answering Tough Questions: Consultations and Policy Development: 2021 Miami University Libraries Copyright Conference

This session is "Answering Tough Questions: Consultations and Policy Development."

Presenters: Kenneth D. Crews and Jack Bernard

Description: As copyright librarians, we are sometimes asked to be involved with challenging consultations, projects, or policy development. In this session, we’ll identify ways to help efficiently guide our libraries and library patrons through these situations and establish balance between the rights of content creators and those seeking to reuse works. 

Conference host, Carla Myers, reminded us that the copyright community is a welcoming one. She is thankful for those who are presenting this year and have presented in the three previous years.

Jack Bernard has done work with HaithiTrust.

This was a Q&A. Questions are in bold below.

Crews: What do we mean by tough copyright questions? Difficult? Unusual? Complex? Mysterious? The mythology of copyright? Questions can be tough because of sensitive situations, emotional investment, financial investment, etc.

Bernard: Tough could be because of a tight timeline or risk. It could be tough because we see a copyright concern, when the person who has sought us out does not. Context matters incredibly.

Crews: Some people are risk tolerant and look for forgiveness if something goes wrong. Others are not risk tolerant. Those are not risk tolerant will not be happy if contacted by a copyright owner. A publisher, for example, may not be risk tolerant because of their investments in a project. Risk changes depending on the situation and people involved.

Bernard: Risk is a X-Y graph. Risk is on the X-axis. The Y-axis is how likely someone will care. There could be more factors, but this is a simple way of thinking about risk. Are you willing to endure any transaction?

Crews: An additional variable on a scaleis decision-making. So not just one item, but making a decision that will affect multiple items. For example, deciding to digitize all dissertations for a university. Can you make sweeping decisions? We will error by being over protective or by being under protective. How big of a mistake are you willing to absorb? Who should make the decision?

Bernard: He talked about how complex dissertations are! They could include databases, for example. Our old fashion systems cannot handle those layers and layers of complexity.

Crews: And what will the university's alumni think about their dissertations being digitized? That adds to the complexity. Should you ask your alumni for permission?

Bernard: Don't ask for permission. BTW once a dissertation is online, search engines might find plagiarism.

Crews & Bernard: What if a person said they had a dissertation and no dissertation is digitized or discoverable...and the institution can't find it?  Digitization finds a flaw in that person's past!

How do you evaluate risk practically? What considerations do you take into account? How to explain risk to people who do not understand copyright?

Bernard: We set standards at our institutions. Get to know the attorneys at your institution and have an open dialogue. It is perfectly fine that your interpretation is different than ours, but recognize that our standards and practices are different. Don't feel that you always need to engage in a copyright 101 or 501 class on the fly.

Crews: Think about a policy that has gone through a vetting process. The policy can be instructive and an educational tool. It also guides you. That policy then helps you address the person who has a copyright question.  If that is not satisfactory, then the policy should tell them who to contact.

Jack Bernard
Bernard: Some of you might be "the copyright person." You might be reluctant to pass the question to someone else, especially if they are highly knowledgeable about copyright. 

People who are really serious about this issues will be willing to invest time to improve the system.

Be willing to hire someone to help you develop policies, etc., if you need it.

Crews: He has been inside counsel and outside counsel. He noted that pressure is on the outside counsel more in assuring that the questions are answered properly. They are the last line of defense.

I think preservation questions under Sect. 108 very difficult -- where is the nexus with fair use?

Bernard: He started with Section 106 (of course!). It begins with noting Sections 107-122. Some of those things in Section 107-122 are fair use and some are not, but we're giving people rights to use.

Crews: Section 107 uses the word "consider".  The four factors are to be considered.  It does not give exact answers and many people had questions, which led to Section 108-122.

Section 108 let's libraries to make use of works in their collections in different, specific ways.  The preservation statutes in Section 108 are specific, even if some words are not defined (e.g., library).  For example, you can make preservation copies of unpublished works in specific circumstances. You need to work through the statute - slowly - and see what Congress wants you to do. 

Bernard: Preservation is not a hard problem, but how to you use what you preserve? That is hard. Efforts to preserve things will not be the problem. But then there will be new appetites for how to use those works. That is where the challenges and potential problems will lie.

Crews: Section 108 in terms of preservation is pretty good, but it has limitations. He notes that some sections - like this - are the result of lots of lobbying. Congress does want to give the library useful exceptions, but various industries don't want Congress to give libraries too much power. 

In 1998, there was an amendment to Section 108 to makes explicit the ability to make digital copies. Libraries wanted it to be explicit, but then Congress added text to make the entertainment industry happy (e.g., restrictions on the distribution of the high quality digital master).  There are sections of this statute that need to be followed closely.

If you can fit your activity satisfactory into a specific statute, do it. But if your activity is not fit into a specific statute (108-122), go back to fair use. Evaluate whether if your activity can fit into fair use.  Maybe yes. Maybe no. Maybe you need to modify your use.

Bernard: Sections 108-122 are designed to be easier than fair use. But remember you can do a fair use evaluation.

Section 107 is the trickiest for music!  Bass line (Under Pressure) or chord structure?  or remixes? or arrangements, samplings...

Crews: I don't know if that makes fair use trickier. What is the use? 

Bernard: We spend more time romancing the issues. And there are music bounty hunters. Music has also gotten more complex.

The public performance rights for music have been cut up into small piece, which becomes problematic.

Both Crews and Bernard talked a bit more about music, based on comments in the Zoom chat. Bernard noticed that even sampling small pieces can get someone into trouble. Crews even mentioned Katy Perry and "Dark Horse."

[The conversation shifted to e-reserves, which was something in the session description.]

Crews: E-reserves! We think of this as a library question, but it's not really.  It is not in Section 108. 

Many universities and colleges have policies which the instructors and librarian use. Be wary of word count guidelines and simple answers. Can we use the four factors of fair use in this context? What are the details? 

How much time will be spent thinking about fair use? Could the time and energy be offset by taking a different course? Can you be more creative? For example, rather than making copies of two chapters for each student in your class, buy a copy of the book for each student. 

Bernard: Walked through a similar scenario.  In his example, he told the faculty member to keep notes of how the decision was made.

If the book isn't in yet for a class, can a few portions of the book be made available for students?

Bernard: He feels this would be low risk.  He also said publishers often will provide copies of introductory chapters, knowing that books are being purchased.

What is a public performance?

Bernard: Many places that seem very private to use are public places under copyright law. Private places are your house or your hotel room, for example. A wedding, which may be a private affair, are considered a public place.

Crews: The definition of "public" is troublesome. He notes the details (in the bold text below), which are often forgotten.

From Section 101:

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Section 110 notes what can happen in a live face-to-face classroom. Section 110 exists to give greater certainty. It must exist, because the behavior - showing a movie in the classroom - could be a copyright infringement ("substantial number of persons outside of a normal circle of a family and its social acquaintances").

Bernard: Courts are likely to take a narrow view of what is private and an expansive view of what is public.

In conclusion...

You don't have to be a lawyer to be knowledgeable about copyright and help your institution make thoughtful decisions. Copyright is not simple to apply, so learning and applying it is not for everyone.

Think about the whole ecology of your institution.  If you are going to disrupt the ecology too much, your risk goes up.

Crews: Look at the statutes. Be flexible on what the words mean, especially those that are not defined in the law. Always give yourself an out, while recognizing that there are exceptions.  Remember that there may be multiple routes to get to the use you want.

Kenny Crews

About Kenny Crews' background, @RateMySkypeRoom (a.k.a. Room Rater) on Twitter said: "Good depth. Horns.* We are pro duck. Lighting needs a tweak. 9/10 @kcrews *Horns are not considered taxidermy which is the ultimate Room Rater violation."

Copyright Chat Live: 2021 Miami University Libraries Copyright Conference

Conference speakers

This session is "Copyright Chat Live: Learning to be a copyright librarian through community conversations."

Presenters: Will Cross and Sara Benson

Description: In this session we will introduce the Scholarly Communication Notebook (SCN), an open, community-based resource for copyright education. We will explore the opportunities for connecting open education and copyright literacy through one of the unique projects that is part of the SCN, the Copyright Chat Podcast. Join us to participate in an interactive workshop where you will learn more about podcasts as OER (open educational resources), collaborate to decide on a topic for a podcast episode about the SCN, and help to record a live episode of the Copyright Chat Podcast. Come ready to participate in a fun and interactive session! 

Conference sponsors
"Our collaboration is both from the mutual realization that scholcom [scholarly communications] and copyright have been under-addressed in LIS education." Coming out of library school, Cross wished that he knew more. 

Open education gives us the opportunity to say that there is more than one correct answer.  It allows for conversation. "...knowledge should not be an elite domain." 

Cross noted that there is exciting work being done with open education at community colleges. That work should not be lost.

Benson's Copyright Chat Podcast goal is to bring quality information to the public. Not all of the podcast episodes are focused on copyright and libraries. Most of the episodes are interviews with experts. She is contributing a "fun way to learn about copyright by listening to the Chat podcast and completing exercises tied to episode content." The podcast is licensed to be open and she encourages others to build upon them.

 Benson provided some podcast tips.

How to build a copyright podcast
Benson and Cross then began recording a podcast episode of Copyright Chat using the conference participants as those asking questions of them on the topic of potential liability under the CASE Act and sovereign immunity. October 4 is the deadline to give comments to the Copyright Office on the CASE Act.

Does sovereign immunity extend to librarians in the scope of their employment at land grant institutions? 

Benson referenced the Georgia State case. Sovereign immunity protects from large statutory damages. It does not prevent you from being sued and asking for an injunction. It is unclear if sovereign immunity extends to employees in the CASE Act.  

Cross noted that sovereign immunity is for public information. the CASE Act is a small claims tribunal. Should individuals opt out? Should the be covered by their employment? If staff run the library, how can you separate them from the library?

Libraries serve society, hence Section 108.  So it is weird to protect the institution and not the people who do the work.

This part of the CASE Act will impact what libraries do.  If library employees are being sued, then that could cause libraries to shut down. 

Libraries often weigh in on court cases that could impact libraries. We need to remember those and that advocacy is important.

Is there is a risk involved in stressing how the CASE Act will impact our daily work?

Benson says, "no." She did not include everything she does in her comment to the Copyright Office. She did include information on specific areas where this would have an impact (e.g., in her teaching). She used very normal examples.

Cross agreed that Fair Use is a risk assessment and exercising a "muscle." The Copyright Office has not always been a "library first" organization. 

He also noted that there are concerns about sovereign immunity and its broad use. "These are stormy times." Benson noted ongoing conversations on sovereign immunity.

Question about the constitutionality of the CASE Act?

Benson believes this has to do with the tribunal, because it is not an official court and part of the judiciary. Cross noted that the 7th Amendment states that people have the right to a trial by jury.

While this tribunal is said to be for small claims, Cross notes that the amounts are not small, although small for large multi-national organizations.

Benson said that EFF is interested in backing a plaintiff, once someone is sued.

Does the CASE Act affect faculty?

The opt out provision is for libraries and archives specifically. 

However, will the CASE Act affect faculty? Yes, but we don't know specifically how that will occur.

How do we educate our non-library community?

Benson noted that this is all still a moving target. Once we know more details, that education will be important. What is it? What are the potential outcomes? How does being at a state institution impact this? What are the options? 

Be sure to talk with your administrators and the organization's counsel office.

Who should submit comments about the CASE Act?

Check with your institution and see if someone else should send in those comments, e.g., counsel office, dean of the library, government relations, etc.

Consider if you can send in a comment as yourself and not as an employee of your institution.

What type of communication would you have with your administration?

Cross said that our associations could produce model language. That would be a great service from our associations. Create a repository. It is too early to do that.

What's next?

People should sign-up for U.S. Copyright Offices notices. This will help you be engaged in the process. 

Once things get a bit more settled, then we can create tools to help with our staff and faculty. Don't engage them too early, because right now things could change.

Will the CASE Act create copyright trolls?

Benson, yes, that is a possibility. 

Someone has said the CASE Act could be a copyright troll factory. Trolling models already exist.


Rent NOT to Own: Copyright, Licensing, and the eBook Revolution : 2021 Miami University Libraries Copyright Conference

Miami University Conference logo
By the way, this is the fourth interaction of their copyright conference. They have over 160 people registered for the conference this year, including people from outside the United States.

This session was on Sept. 28.
Presenter: Kyle K. Courtney
Description: Copyright, licensing, and eBooks are destroying core access, collection development, and preservation activities in libraries, archives, museums, and other cultural institutions. Nearly all the major publishers charge libraries higher licensing fees than the consumer prices for the same material, and place strict limitations on how the licensed content can be shared or loaned. And each license does not confer any ownership under copyright’s first sale doctrine – these eBook deals, at best, are temporary rentals. This directly impacts an organization’s ability to serve their communities. As a result, many communities lack meaningful access to books needed for education, research, entertainment, and general learning. However, states such as Rhode Island, New York, and Maryland represent a new hopeful front in the eBook licensing problem: state contract and consumer protection laws. Join this session for a discussion of these new laws that are harnessing state law to assert the library mission through “reasonable terms,” weaponizing the very tool that has been used against libraries for decades: licenses.
"Rent not to own" is a position that Courtney believes we (libraries) can get out of. His alternate title is, "The problem with ebooks and how libraries can solve the problem & save the world."
 Last year: Library pandemic narrative - the fallacy of licensing culture:
  • Out of control licensing culture
  • Devaluation of library's legal and economic value in collections
  • Excessively narrow fair use analysis
  • Fear of technology preventing legitimate legal uses....
In summer 2020, the types of licenses expanded, such as "read along" licenses. "Must be licensed?"

The question became - no matter what -  "Why didn't the library get a license?" 

Courtney asked, "How do libraries legally do what we do?" He then references the bundles of rights under Section 106 and then noted that there are exceptions to those rights, e.g., Section 107 and Section 108.

With ebooks we tend to focus on "to distribute copies of the work." However, there is the first sale doctrine in Section 109.  It is Section 109 that allows libraries to circulate legally acquired works.

Licenses eviscerates the library mission in terms of sharing, preservation, etc. Licensing requires libraries to "repurchase" content multiple times. Licenses can make the libraries mission impossible eBook licensing continues to threaten the very existence of libraries.

Licenses really impact collection development. Courtney pointed back to 2011 and the HarperCollins 26-checkout limit  and its impact on library collections. In 2019, Macmillan attempted a two-month embargo on library books. In other words, trying to say that libraries are affecting their market. This year was the DPLA agreement with Amazon, which makes ebooks and audiobooks available to libraries. Available, but not sold. There are positives with the DPLA deal, but it perpetuates the licensing model. Finally, he pointed to the Maryland Library Association statement on Maryland's Digital Content Law. This could result in libraries becoming a version of Hulu or Netflix, where libraries do not own their content. 

Two solutions:
  1. Publishers stop selling libraries materials with overly restrictive licenses. Sell the materials with the full rights libraries need to have in order to accomplish our non-profit, preservation, education, research and access mission.  
  2. Use the same laws that have been weaponized against libraries: Contract and licensing law (with a sprinkle of public policy enforcement). State legislatures have introduced bills to force publishers to offer electronic "literary products" licenses to state libraries on "reasonable terms." A bill on this did pass in Maryland and became law on June 1.  A version has been introduced in New York and Rhodes Island.

    The Association of American Publishers believe this is problematic. They believe that federal law preempts state law in this area. They point to Copyright Law Section 301.  However, Section 301 does not apply to contracts. 
Courtney pointed to the Senator Wyden and Representative Eshoo press release and walked through the questions they are asking in their letter to the Big Five publishers.

State law governs the formation of contracts and licenses. They can mandate terms that are fair and practical. They can ward against unfair and deceptive practices. He pointed to state level net neutrality bills as a precedent for this.  
States govern state procurement laws. This is where we can work to impact publisher licenses. A positive use of contract law!

Courtney believes that "reasonable terms" need to be defined and not left to be fuzzy. 

This tactic would not solve all problems, but it could be an important start.

Becoming a Copyright Librarian: 2021 Miami University Libraries Copyright Conference

Since it was online, I was able to attend the  2021 Miami University Libraries Copyright Conference. Below are my notes from the first session on Sept. 27.

Graphic of who is attending the conference

Becoming a Copyright Librarian

Presenters: Emilie Algenio, Kenneth D. Crews, and Pia Hunter 

Description: In this session three panelists will share their stories about taking on responsibilities as copyright librarians.

Emilie Algenio - She began with a very honest land acknowledgement (i.e., telling the true history of the Native people who lived in her region), which I greatly appreciated.


What works in becoming a copyright librarian?

  • Take a workshop, etc.
  • Delve into a community of practice - bounce ideas off of another expert. Different people have different subject strengths.
  • Captain your own ship - Become a copyright leader in your workplace. Look at the research your colleagues have done. Draw upon the collective wisdom.
  • Manage relationships - Maintain a collegial relationship with your colleagues, especially on your campus.

What doesn't work?

  • The view from 10,000 feet - details matter
  • Documenting impact, without clarification - What impact matters to you and your organization?
  • Sticking to the U.S. - Have international colleagues gives you a broader perspective. Attend international conferences, e.g., IFLA, if possible.

Pia Hunter

Three essential qualities:

  • Collaborative persistence: Identify the needs of your constituency and plan to work with them - again, and again. You need to be patient.
  • Adaptability: Embrace evolution because the law is ever-changing. There is constant change and innovation.
  • Confidence: The law can seem opaque, but sit with the statutes and cases, read the literature, and engage with the copyright librarian community.

Three things to do, if you haven't already:

  •  Take a course (CopyrightX) or watch videos from webinars or copyright conferences. Do not operate in the dark.
  • Develop your voice. Write about the cases that interest you and why. This engages you with the material in such a way that you absorb more info. It will make you more at ease with the topic.
  • Assess the landscape: is there a role for a copyright librarian at your institution? What does your organization need and what can you offer? Are you up for the challenge?


Kenny Crews -  

There is always something new to dig into, which means that multiple conferences can be helpful. 

Copyright is cultural bound. (Reminds me of thoughts around traditional knowledge, etc.) Tied to life expectancy.  

Three biggest hazards:

  • Signing a licenses without reading and negotiating. Licenses are contracts. The person who signs the contract is a powerful person, because they can allow you to have (or not) access to content. Copyright is a starting point. The license can redefine the rules of use.
  • Any mention of "work made for hire" in a faculty presentation. The work may be owned by the employer and the worker (human author) is irrelevant. Work made for hire can be a toxic issue, because people want to be recognized for their work. Think about what result the organization and the employee want. Ask questions! You may agree to a more sensible agreement.
  • "Looks like you have a fair use question!" The listener may hear that you - the copyright librarian - said that they van use fair use, even if that is not what you said. Language matters.
    • Be careful using the phrase "it depends". That phrase can turn the listener off.
    • There is virtue in saying "no." You are lending credibility to every time you say "yes." If everything is a "yes," then there are no rules. You are helping people respect what the "line" is which should not be crossed.

Three best friends:

  • A supportive and understanding legal counsel.
  • Your own wisdom, flexibility, and intuition about copyright statutes and their meaning. Trust yourself. Be flexible in your reading.
  • The network of great colleagues around the country, allowing you to share ideas and seek guidance.



  • Did Crews expect the growth of copyright librarians?  No. Kenny Crews was the (likely) first copyright librarian. He thought that the position/need would have gone to legal counsel. He also thinks legal counsel at some institutions wanted to be buffered from these questions.
    • Copyright librarians have been around for 27 years.
  • General tips:
    • Share recent copyright news (be selective).
    • Plug into communities that are discussing the knowledge/information you need. 
    • Have the information come to you (RSS feeds, etc.).
    • Be protective of your time. Develop efficiencies. If a person has a complicated project, invite the person in so you can get all of the details.
    • Prioritize your university/organization's questions. Be careful of answering questions from outside your institution, because you don't know who they are, etc.
  • There are times when you will need to take questions to legal counsel. However, know that your organization's legal counsel may be will versed in copyright. 
    • When you do go to legal counsel, also take 1-3 potential answers.
  • How has copyright changed in higher education because of the pandemic?
    • Even before COVID there were copyright issues coming into the picture. So more of a focus on copyright.
    • There is overlap between copyright and privacy. 
    • Ownership side - We're creating more copyrightable content in the online education world. Who owns that embodiment of the information? Ownership? Authorship? Work for hire? Don't leave the answer to the law - because you won't like the answer - but develop organizational policy instead.
    • There has been a expansion of what we consider a classroom. Online education isn't just for adult education.  Now children are doing online education.  We need to re-think licensing agreements on the content we want to use.

Crews: Get involved with the copyright community. Get involved in what is happening with the law. Get involved early, if you are so inclined, and let your voice be heard.

My thought: If you feed your knowledge, your intuition will benefit.

Tuesday, September 28, 2021

Move at the Pace of Trust


Last week I spoke with a group of doctoral students in the Syracuse iSchool about the intersection of theory and practice.  One of the questions asked was - as I remember - about the theories leaders used during the pandemic as they worked with their organizations. My response wasn't about theories, but about trust.

Especially during a disaster, conflict, or when there are problems, workers need to be able to trust each other and trust their leaders. They need to know that those around them are:

  • Reliable
  • Willing to show up when needed
  • Truth speakers
  • People who get things done
  • Decision makers who make decisions with the best interest of everyone in mind 
  • Willing to keep their word

When there is trust, a decision can be made quickly and everyone will get on-board with it. When there is a lack of trust, decisions can move slowly and will be second-guessed. When there is trust, people will follow the leader. When there is a lack of trust, people may follow no one.

Our organizations move at the pace of trust.  If people trust each other and their leader, the organization can move quickly. If there is a lack of trust, that organization will move, change, or evolve slowly.  It might even regress.

Trust does not happen automatically, rather it takes time to develop. The staff need to get to know the leader, how that person thinks, how they makes decisions, and what that person values. Staff need to both hear how the leader works and also see how the leader works. Does the person's actions match their words? 

A leader can also gain trust through association. A leader might gain some level of trust because that person worked at M-organization, knows Q-person, or went to V-school, for example. But that trust through association is only the beginning and will not go far. The leader needs to build upon it, so they trust is not about whom that person knows, but about the person themself.

I should note that our default might be that we trust people we meet, but that trust is tenuous. For some, I know their default is to trust no one. And before I continue, I should also note that trust can be broken easily and then be hard to rebuild.  In other words, the leader's actions must be consistent or staff will become less trusting.

So how does a leader build trust? This article lists 10 things and I agree with them:

  1. Value long-term relationships
  2. Be honest
  3. Honor your commitments
  4. Admit when you’re wrong
  5. Communicate effectively
  6. Be vulnerable
  7. Be helpful
  8. Show people that you care
  9. Stand up for what’s right
  10. Be transparent

Be sure to read the article for more information on those 10 items. 

Those 10 steps above are not hard and they do not require a lot of time. However, they need to be done. Yes, all of them and even when it is hard or not convenient.

So as you look back over the pandemic and what your organization or other organizations did, think about trust. 

  • How did they move at the pace of trust? And what was that pace? 
  • If there was a lack of trust, what is being done to rebuild it? 
  • If you are not a leader, what can you do to reestablish trust or ensure that trust survives?

If you need to build trust, do it now because you will need it when the next crisis or problem occurs.

Monday, September 27, 2021

Interviewed for the TDNet Library Leaders Podcast

 A few weeks ago, I was interviewed for the TDNet Library Leaders Podcast. Paul Cuomo, the podcast host, is interviewing people in the library and information professions. To date, TDNet has published interviews with Eugene Giudice, Dr. Nabi Hasan, and Jan Boonzaier, with more interviews on the way. All of the episodes are through several podcasting platforms including, Spotify, and Google Podcasts.  

Paul and I had a far ranging conversation which touched on my career, consuming content, being organized, communicating with others, brainstorming, and so much more! Feel free to it, and other episodes, a listen.

Thursday, September 23, 2021

Wyden, Eshoo Press Big Five Publishers on Costly, Overly Restrictive E-Book Contracts with Libraries

One of our U.S. Senators and a member of the House of Representatives are turning their attention to ebooks contracts with libraries, including the availability of ebooks and their pricing. Below is their press release which was issued today. In it, you can see the information they are demanding from the Big Five publishers.

The fact that Senator Wyden and Representative Eshoo are shining a light on this is huge! 

[Corrected 09/24/2021 to note that Eshoo is not a senator.]


September 23,2021

Press Contact:

Keith Chu (202) 224-4515

Wyden, Eshoo Press Big Five Publishers on Costly, Overly Restrictive E-Book Contracts with Libraries

Libraries report facing financial difficulties making e-books available to patrons under expensive, limited leases from publishing houses

Washington, D.C. – Senate Finance Committee Chair Ron Wyden, D-Ore., and U.S. Representative Anna G. Eshoo, D-Calif., today pressed the big five book publishing houses – Penguin Random House, Hachette, HarperCollins, Simon & Schuster and Macmillan – for answers regarding their contracts on e-books with libraries.

“E-books play a critical role in ensuring that libraries can fulfill their mission of providing broad and equitable access to information for all Americans, and it is imperative that libraries can continue their traditional lending functions as technology advances,” the members wrote.

E-books are typically offered by publishers under restrictive and expensive licensing agreements, unlike print books, which libraries only have to purchase once and lend as they see fit. E-books often have more constraints, from the number of times an e-book can be loaned to a time-limit on the license. The more flexibility in the agreement, the higher the price skyrockets, often at a much higher markup than what the average consumer pays for the same title. 

“Many libraries face financial and practical challenges in making e-books available to their patrons, which jeopardizes their ability to fulfill their mission…. Under these arrangements, libraries are forced to rent books through very restrictive agreements that look like leases,” the members continued.

The exorbitant costs and burdensome restrictions of these e-book contracts are draining resources from many local libraries, forcing them to make difficult choices to try and provide a consistent level of service and get books – print or electronic copies – in the hands of their patrons. However, with e-book contracts eating up ever larger portions of libraries’ budgets, the same level of service appears untenable. Wyden, whose mother worked as a librarian, understands that local libraries are the cornerstone of communities large and small, providing a hub of literacy and community-building resources to every American.

Wyden and Eshoo requested answers to the following questions by October 7:

  1. For sales of physical books to academic and public libraries, please describe any restrictions you place on the sale related to potential exercise of copyright limitations and exceptions available to schools and libraries. 
    1. For each year from 2018 to 2020, what was your total revenue for the sales of physical books to academic libraries and to public libraries, respectively?
    2. For each year from 2018 to 2020, what was the total number of physical books sold to academic libraries and to public libraries, respectively?
  1. For the licensing of e-books to academic and public libraries, please describe any restrictions you place on the license related to copyright limitations and exceptions available to schools and libraries. 
    1. For each year from 2018 to 2020, what was your total revenue for the licensing of e-books to academic libraries and to public libraries, respectively?
    2. For each year from 2018 to 2020, what was the total number of e-book licenses sold to academic libraries and to public libraries, respectively?
  1. Please provide copies of your standard e-book licensing agreements for academic libraries, public libraries, and consumers, and please answer the following questions: 
    1. Do you offer perpetual e-book licenses to academic libraries, public libraries, or consumers? If so, under what terms and conditions?
    2. Do you offer sales of e-book files (with print-like rights of ownership, instead of licenses) to academic libraries, public libraries, or consumers?
  1. Please summarize the lending restrictions included in your standard e-book licenses for both academic and public libraries, including:
    1. the number of times and amount of time you allow an e-book to be loaned; and
    2. the legal or technical restrictions you place on each loan.
  1. Please summarize the standard e-book licensing terms, for both academic and public libraries, regarding your access to library data, including:
    1. what reporting requirements are placed on libraries for acquiring these e-books;
    2. whether you have any access to the lending logs of the e-books, including tracking any personal information associated with patrons and check-outs; and
    3. what other data you have access to, including uses of the work (e.g., highlighting, notes, or annotations) and patrons’ data.
  1. During COVID-19-related shutdowns, did you create any new licensing or permission regimes (e.g., permission to read aloud) for some or all of your e-book offerings?  If so, please describe the nature of the works covered by the change and the extent of the changes.
  1. Please describe any legal actions—including cease and desist letters, threat of lawsuit, actual lawsuits, or imposition of restrictive licensing terms—you have taken since 2016 in response to the following activities: 
    1. multiple checkouts of digital texts;
    2. interlibrary loan;
    3. controlled digital lending;
    4. libraries making copies of owned works to lend digitally on a one-for-one basis;
    5. schools making available electronic copies of books they physically own to students during the pandemic; and
    6. e-reserves.
  1. For each of your 100 most sold or licensed works to libraries in 2020, please provide the following data from 2020:
    1. the average price of a physical copy of the work sold to libraries;
    2. the average price of a physical copy of the work sold to consumers;
    3. the average price of an e-book license to an academic library and the average number of loans permitted;
    4. the average price of an e-book license to a public library and the average number of loans permitted;
    5. the average price of an e-book license to consumers;
    6. the profit margins for the sale of a physical copy of the book to consumers and to libraries;
    7. the profit margins for the license of an electronic copy of the book to consumers and to libraries;
    8. whether you allow libraries to purchase (rather than license) a digital copy of a book, and if so, at what average price.
  1. For each of your 100 most sold or licensed works over the period of 2015 to 2019, please provide all the information requested in question 8 above, along with the year-over-year changes in the average sales price of a physical copy and the average licensing rate for a digital copy to consumers and to academic and public libraries.

A copy of the letter to Penguin Random House is here, Hachette is here, HarperCollins is here, Simon & Schuster is here and Macmillan is here.

Tuesday, September 21, 2021

NISO Awarded Mellon Funding for Controlled Digital Lending Project

Yesterday the National Information Standards Organization (NISO) announced that it has received funding support for "the development of a consensus framework for implementing controlled digital lending (CDL) of book content by libraries." Developing a framework was approved by members of NISO as a new initiative.  The announcement goes on to say:

Libraries exist to serve their communities, to distribute information and knowledge of all kinds to users of many types, abilities, and resources; circulation of content in all formats is a core feature of what libraries exist to do, and they have been doing so legally for centuries. CDL is an emerging “lend like print” approach, which enables libraries to loan digital versions of their print books while using technical controls to ensure a consistent “owned-to-loaned” ratio. This allows a library to lend the exact number of copies of a specific title it owns—regardless of format—with controls to prevent users from redistributing or copying the digitized version. The need for standards and best practices related to CDL was one of the three top ideas identified during the NISO Plus Conference that took place in February of this year.

Every library will benefit from NIO's efforts regarding digital lending in a controlled environment. I look forward to what they develop and I thank the Andrew W. Mellon Foundation for supporting this effort.

You can read their entire statement on the NISO website.

Friday, September 17, 2021

Information on the NYLA Annual Conference for library trustees and friends

After 24 years, the New York Library Association (NYLA) Annual Conference is returning to Syracuse, NY, in addition to holding a virtual conference. Because I'm on the Onondaga County Public Library Board of Trustees, I've written the information below for my board members in order to encourage them to attend. After writing it, I realized that other library trustees in NYS might benefit from this information.  It might also be helpful to your friends groups. So please share this information with anyone who can use it!

This year, the New York Library Association Annual Conference is holding a virtual conference (Oct. 28-29) or the in-person conference, Nov. 3-6. Most of the in-person programming is on Nov. 4-5. Registration for the in-person conference also gives you access to the virtual conference.  The virtual conference includes sessions at specific times as well as on-demand programming.

Registration information is available online with early-bird registration ending on Sept. 30.  If you are not a member of NYLA, you would register as a non-member ($299/full conference or $189/virtual conference).

The registration rate for trustees assumes that you are a member of NYLA. A trustee can join NYLA for $30/year

Relevant sessions during the virtual conference programming include:

How to Hire and Inspire (and Occasionally Fire) Library Employees, Legally!
In this session, we will discuss a variety of employment law topics and the laws that govern them. Topics will include hiring and firing of employees, paid leave laws and policies, employee misconduct, discrimination and harassment, interpersonal conflict and bullying, wage and hour concerns, performance issues, safety concerns, and more. Using real world scenarios that arise in libraries, we will identify legal issues and plan practical approaches to resolving personnel problems. We will examine how federal and state employment laws and library policy work together, with a special focus on the requirements imposed by new legislation and recent court decisions.

How to Run an Effective Meeting
Attendees will learn how to construct an effective meeting by deciding what structure will meet the meeting's needs. We will discuss when and if, using Robert's Rules of Order is necessary, and give a quick introduction into best practices when using that structure. Key meeting management tips will be introduced, including how to empower all meeting attendees to participate; communicate effectively with a large group; value the attendees' time; stay on task; tactfully end off-topic discussions; and finish meetings in a timely matter.

Community Partnership Social Workers in Libraries
Middle Country Public Library welcomed a licensed social worker into their service model over 15 years ago and has sustained this model through deep community partnership.  Learn about how this model has been so successful in forging new relationships and meeting patron needs.  Meet our licensed social worker who will talk about the types of services she can offer with her professional training and how these services work within a public library. Kristen Todd-Wurm, National Coordinator for Family Place Libraries will talk about how the library set up and sustained this ongoing beneficial relationship over the years.

Library Construction 101
The State Aid for Library Construction program offers public and association libraries and public library systems funding, up to 90% of the total cost of the project, to carry out construction projects at these libraries.  Learn about the funding distribution, how to apply for a project, and what the requirements to receive an award of funding through how to close a project once the work is completed.

Relevant sessions during the in-person conference include:

De-escalation and Library Security, a Street Perspective
As libraries try to find a balance between safety and accessibility the discussion of security in libraries has become more nuanced and complex. One approach is to use Community Engagement Teams instead of traditional security or policing to de-escalate conflict before it begins. These Community Engagement Teams get to know the community, become aware of what is happening on the street level, are aware of trauma-informed services, and come from a shared background of the people that use the library. Their informed understanding of library users heads off conflict before it begins, and they become a part of the community library at the community level.

Library Trustees [Not In] Legal Jeopardy!
Being a trustee takes dedication, awareness, and a willingness to learn the ropes of library and not-for-profit legal considerations. Since that is a lot of work, this session will make it fun, promoting awareness of the most critical aspects of library trustee ethics and responsibilities through a game-show format: "What is...a fiduciary?" "What is...a conflict of interest?" "What is...Director's & Officer's Insurance?"  You will wager all of your late fees as you test and build your trustee skills in this fun and highly informative session!

Friendly Relationships, Working Together for the Library
Friends of the Library can be valuable members of the library team. Trustees provide governance, library directors manage the operations of the library, and a Friends group provides an opportunity for citizen volunteers to give support and financial assistance. All parties in this alliance need to understand their well-defined responsibilities and the limits of their roles. Frequent, clear, and open communication is the key to a successful partnership, along with joint planning sessions and establishing an operating agreement to address the needs and expectations of all. Robust, positive relationships between these key players will impact customer satisfaction and achieve long-term goals, helping libraries to be strong and resilient. Our panelists from the Hamilton Public Library will share ways their Friends, director, and trustees work together successfully.

A New Way to RAC
Building on the success of the Vision 2020 plan, RAC (Regents Advisory Council on Libraries) is looking at newer ways to improve services.  This program will include a discussion and we need your input.  The RAC Vision Plan 2020 presented strategic directions for New York's libraries and library systems and was developed in partnership with the state's library community.  It provided a clear vision of what excellent libraries should look like, and affirmed the ongoing value of the library system.

Thursday, September 16, 2021

The Learning Guild's Crowdsourced Favorites from L&D Practitioners

The Learning Guild has created an interesting list of 56 books which have been recommended by members of the learning and development (L&D) community.  The creation of this list wasn't scientific and there is no indication of how many people contributed suggestions. Still any list of favorite books - especially for trainers - can be a good starting point and I do like the questions used for its creation.

The executive summary begins:

In August 2021, we asked L&D practitioners via social channels about their favorite work-related books. We were not interested in what they happened to be reading recently, but the “desert island” books they would want to keep with them above all others, or would suggest for colleagues. We asked questions like: What have you found useful in executing your work or in navigating your career? What is dog-eared? What do you still pull off the shelf? What do you quote? What books did you find influential and kept from college or grad school that you feel contributed to your practice? Contributors were asked to include a sentence or two about why they recommended a particular title.

The resultant list is divided by topics and with brief statement about why the work is treasured.

You need to register (free) to download the entire report.  I suspect any trainer or educator will find something of interest on this list. The list might be especially valuable to someone who is new to the field.  Of course, I expect some will disagree with this list and I hope those people will create and publish a list of their own.

Wednesday, September 01, 2021

Article: A Public Service Role For Digital Libraries

Argyri Panezi, PhD is a Postdoctoral Fellow in Stanford's Digital Civil Society Lab. This past spring, she wrote "A Public Service Role For Digital Libraries: The Unequal Battle Against (Online) Misinformation Through Copyright Law Reform And The Emergency Electronic Access To Library Material", which is available in full-text as a pre-print before it has been peer reviewed.  (You may need to create an account to view and, I believe, should be able to do so for free.)

The abstract begins:

This article analyzes the role of copyright doctrine and case law in preserving the institutional function of libraries—both on- and offline—as trusted and, in principle, neutral hubs equalizing access to credible information and knowledge in societies with structural inequalities. In doing so it examines the ongoing Hachette v. Internet Archive litigation before the US District Court of the Southern District of New York in the context of earlier copyright cases, finding that there is a persistent need for electronic access to library material online.
The 41-page paper is dense, informative, and interesting reading. Panezi discusses relevant litigation as well as some history of both copyright law and libraries. I appreciate her providing all of this information in one spot, which for me makes it a valuable article to remember. I also appreciate nuggets like:
...while access to information is recognized as an important right of all citizens in democratic societies, access to material is not guaranteed. (p. 37)

I had to read that twice! As someone who thinks about materials and access, and what we say about libraries, I know that what she has written is correct. I sounds like semantics - information and material - but how those terms are different is meaningful. Libraries need to ensure that they provide access to materials - to the items themselves. And they need to make sure that their funders understand that. Libraries provide more than access to information; they will provision that item for you in the format you desire.

Yes, much more than that one line stood out to me and I'm sure much more will stand out to you. You might skim it and see want stands out, then give it a deep read.