Interview with Gretchen McCord

Gretchen McCord is an attorney-consultant and educator in the areas of copyright law, privacy law, and legal issues related to social media. Her practice specializes in assisting libraries, educational institutions, and non-profit organizations in transitioning into the ever-changing digital world. She was an academic librarian prior to becoming an attorney, and served as the President of the Texas Library Association. Gretchen is teaching her first class for Library Juice Academy next month, titled Fair Use In Depth. She has agreed to be interviewed here to give people a better idea of what this course will cover and whether it might be right for them.

Hi Gretchen! Thanks for agreeing to do this interview. I think I would like to start by asking what the contexts are in library work where librarians have a real opportunity to make use of the fair use provisions in copyright law? What makes studying fair use practical?

As librarians well know, the exemptions to a copyright owner’s rights granted by the Copyright Act are very few and very limited in scope (the major ones for libraries being in Section 108). For everything else libraries – and library users – do, we have to rely on fair use. That is certainly the majority of activities we engage in on a daily basis.

This is particularly true in the digital and online environment, where everything changes so quickly that we have few official guidelines, and even the statutory exemptions are so very outdated. Anytime libraries (or their users) post copyrighted material online without the owner’s permission, from the library’s website to social media to content management systems (e.g., Blackboard), they rely on fair use.

What makes studying fair use practical?

It’s more than practical – it’s a necessity, if libraries (and our educational system as we know it) are to survive.

In the brick & mortar world, librarians have often relied on negotiated guidelines (such as the Classroom Photocopying Guidelines) to give them some assurance as to what, at a minimum, would constitute fair use. However, in the online world, we do not have such guidelines. We are kind of flying by the seat of our pants.

Take, for example the three recent fair use cases: Cambridge Press v. Georgia State University (about e-reserves), The Authors Guild v. Google (about Google Books), and The Authors Guild v. HathiTrust (about digital repositories). The district courts overwhelmingly found the uses to be fair (and rightfully so), but all three have been appealed. So we still don’t know!

In this context, it becomes imperative for librarians to be able to make educated, analytical, and thoughtful decisions about fair use. Because fair use is such a complex and subjective area, this can only happen when one truly understands those complexities and can operate at the upper levels of Bloom’s Taxonomy in applying fair use.

Anybody can follow black-and-white guidelines or rules (e.g., “Don’t copy more than 10%.”). But if we limit ourselves this way, especially at a time when copyright owners are viciously attacking the entire doctrine of fair use, we fail our users and our profession, because — Remember what they say about rights? “Use it or lose it.” I fear that we are truly in danger of losing our rights under fair use (and remember, the vast majority of what modern libraries do depends on fair use) if we do not become more proactive in using them to the greatest extent possible.

How should librarians deal with the fact that they are working as parts of institutions that hold the legal liability, and in which administrators or general counsel may be more interested in avoiding legal troubles than in advancing a professional mission?

Obviously, such situations are tricky (and much too common). Every situation is different, because it is so dependent on the institution’s personality and politics. But some general steps appropriate for most would be the following.

First: Library administration should talk to the institution’s administration (legal counsel if possible) to confirm that such is the case, rather than assume. It may be that legal is unaware of the complexity of the issues, or uncomfortable in this area and doesn’t know where to turn. (FYI, legal counsel for entities are usually specialists in that entity’s area – e.g., for a school district, school law; for a city, administrative law – and they often call on outside specialist counsel for consultation as needs arise. It would be good practice for an institution’s legal counsel to consult with an outside copyright attorney to address the institution’s copyright needs.)

Second: This is all about policy and procedure! Ideally, an institution (be it school district, college, university system, or municipality) will have in place policy statements and procedural documents that are consistent and complementary across the institution. Unfortunately, many institutions do not take this holistic approach. Fortunately, the importance of doing so becomes increasingly obvious, and more institutions are moving in this direction. (I also assist institutions of all types in assessing and addressing their copyright policy situation and needs.)

In your hypothetical, the library is put in a particularly difficult position, and you articulated that position quite well: Librarians are stuck between their own profession’s mission and the administration’s refusal to support that mission. In such cases, it is even more important than ever for the library to have its own policies and procedures in place and to be sure that all the staff are knowledgeable about, and follow, them. Should either internal political or external legal challenges arise, having a clear policy and procedures in place, and being consistent in abiding by them, is very important.

Third: Librarians must be advocates for their users and their users’ rights. The ALA Code of Ethics is based on this core value. In the context you’ve presented, the library should consider how it can best go about educating its administration (including legal counsel) as to the dire importance of proactively addressing the community’s copyright needs by having a system in place – policies and procedures, staff training, designated “expert” resources, open lines of communication, documentation, etc. Educating your administration may be a long, slow process, but it won’t happen if you don’t try! Any progress you make will serve your institution and your users in many, many ways.

Thank you for that answer. It seems like you will be able to assist participants in the course who have questions along those lines. I’d like to go back a bit to talk about the situations where librarians should or could be doing a fair use analysis to support a decision to share information in some way. You said that almost all of the work that librarians do in sharing information is permissible because of the fair use exemption (and Section 108). I have not thought about it before, but I can see your point. I think though that for most library work, there isn’t a need to do a detailed fair use analysis to justify our work, because so much of what librarians do is simply accepted practice. So what are some of the situations where librarians can benefit from knowing how to do a fair use analysis?

I kind of implied this in my response to a previous question, but I didn’t state it directly. Librarians WILL benefit from knowing how to conduct a fair use analysis in any situation in which they are not sure whether their intended use constitutes a fair use. If the use falls within one of the guidelines stating minimum fair use practices, they can be pretty sure the use is fair. If the use is one they know to be standard practice because it is likely fair, they may feel pretty confident the use is fair.

(Note that too many standard practices are NOT fair uses. In fact, it is standard practices in the digital/online environment on which publishers and other rights owners are starting to crack down now, arguing that they are not fair uses. In some cases they are, but in others they are not.)

But anytime a librarian confronts an intended use that goes beyond the guidelines and is not confident that it is fair, she needs to be able to apply the fair use analysis. The particulars of what constitutes a situation will differ from person to person, depending in part on their experience and knowledge.

One broad category of uses where all librarians need to be able to make that analysis is uses by new technology that are somehow different in nature than simply old uses via new technology. For example, scanning an image is just a technologically new way of making a copy equivalent to a photocopy. However, copying and sharing material in a course management system is by its very nature different from copying and distributing copies in a classroom; showing a video in a classroom; making a copy to place on physical reserve; or whatever the comparable function might be.

That makes sense. I’d like to turn to the class itself. Would you outline it and tell people the particulars of what will be covered and what activities you will do? As well as what participants will be able to do at the end.

My overarching goal is for participants to learn to use fair use as a tool of empowerment. More specifically, this means that, as general goals, I want participants to be able to (1) make thorough analyses and (2) assess risks (3) in order to come to the best decisions for their particular situation. The bigger goal, which leads to empowerment, is for participants to learn to use fair use proactively, to build their cases for fair use, rather than to think of it defensively and as a limitation on their ability to use works. When one masters the subtleties of fair use, one can move from asking “Is this likely to be a fair use?” to “What can I do in this situation to strengthen my fair use case?”

We will address the theory and purpose of fair use; the development of the doctrine; shifts in its interpretation in recent years; and conflicting positions on how it should be interpreted and applied in various situations. Although the same fair use analysis/process is used in any situation, the online environment adds a few twists. We will study and discuss both online/digital and brick-and-mortar situations but will spend more time focusing on online contexts.

I make my courses as interactive as possible. Twenty years of teaching has proven to me how valuable active learning is, particularly in an area as subjective, deep, and malleable as fair use. Activities will include online discussions, working through scenarios in groups (to apply fair use to specific situations), and analytical writing.

Materials will include case law, journal articles, videos, and audios.

That sounds like a great class. I think we can wrap up this lengthy interview here. Thanks very much for doing the interview.

Thank you for providing the opportunity for the class itself and for asking such great questions! I am very much looking forward to working with Library Juice Academy participants in this course.

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