A Blog by Jonathan Low


Mar 29, 2020

Some Copyright Holders Are Preventing Performance of Their Works During Quarantine

Excessive zeal in protection of intellectual property at a time of global emergency?

Ya think? JL

Mike Masnick reports in Tech Dirt:

Why did it take so long before reading arrived to distance learning? Copyright. (Teachers) need to wait for permission and that also meant in posting video to the distance learning platform, noted in text, and prior to reading, "with permission from (the publisher)." (Some) authors (are) offering "free" licenses to their books to read. Pandemic License and Education Continuity License have been designed to deal with this situation. But both are based on the idea that we should need licenses and permission to read aloud.
Like large parts of the world right now, I'm stuck at home these days, and figuring out how to work and be a distance learning proctor to children. A week and a half into this forced educational experiment, my kid's kindergarten teacher decided to post a (private) video of her reading a children's book to the students. Why did it take so long before reading time arrived to distance learning? Copyright, of course. She needed to wait for permission from Random House, apparently, and that also meant that in posting the video to the distance learning platform the school is using, she noted in both text, and prior to reading, "with permission from Random House."
Now let's think about how silly this is. No one would ever expect that if you walked into a kindergarten classroom that a teacher would first need to (a) get permission to read aloud a book and (b) state before reading that he or she had "permission" from the copyright holder. This is permission culture gone mad. But it's the way things are, especially since copyright holders have spent the past two decades blaming platforms for hosting any "infringing" material. I doubt that the teacher in this case was directly concerned about her own liability (though, she might be), but it very likely had to do with the distance learning platform the school is using requiring her "properly license" anything uploaded. Indeed, when I tweeted about this, a copyright lawyer insisted that this was "better for everyone" to make sure that no one had liability. I question how it's better for teachers, students, or culture in general, however.
This is playing out all over the place, thanks to our forced isolation. LeVar Burton tweeted about the trouble he's had doing a live-streamed version of LeVar Burton Reads, because copyright is getting in the way. He's been searching through "short stories in the public domain" because the actual licensing issues are too fucked up:
I’ve been busting my brain for about a week now trying to figure out how to do a live-streamed version of . I figured that during this difficult time I could contribute by reading aloud to folks who could use some diversion for themselves and their families.
In order to avoid legal complications, I’ve gone down the rabbit hole searching through volumes of short stories in the public domain for appropriate content for families and have come up empty.
549 people are talking about this
While it is a bit heartening to see a lot of authors responding to him and offering up "free" licenses to their own books for him to read, just the fact that we're in this situation in the first place should demonstrate the fundamental broken nature of copyright law. A few people pointed me to certain "solutions" to this -- including a special Pandemic License and a more official Education Continuity License -- both of which have been designed to specifically deal with this situation. But both of those are still based on the fundamentally flawed idea that we should need licenses and permission to read aloud.
That's messed up.
This is what fair use is supposed to protect -- and I'm happy to see a bunch of top copyright scholars just release this excellent paper on "Reading Aloud" and fair use. The paper is exactly right that things done without extra licenses and permission in the classroom should be easily replicated online:
  1. When teachers translate classroom practices of reading aloud to online student facing tools, such as distribution through a school website, learning management system, or live webcast, fair use enables most of the same practices online that take place in person.
  2. In a temporary emergency involving extensive school closures, teachers and schools should feel even greater confidence in reading aloud through digital platforms, including platforms without access controls, if necessary to reliably reach students.
  3. Fair use also provides strong legal authority for practices focused on ensuring equity of access for students with disabilities, English language learners, and other vulnerable student populations. Consistent with the principles of universal design, the ability to engage with materials read aloud should be enabled as widely as possible.
The paper is absolutely right. But it's meaningless if no one buys into it and no one has the confidence to stand up for their fair use rights -- and that includes the platform middlemen who are so freaked out about liability suits that they won't even bother with fair use.
When we get through this pandemic, we should remember this mess, and fix a bunch of problems with copyright law to make sure we don't need to do this again. We should make it 100% clear that classroom uses are fair use. This is currently in the law -- but frequently ignored. We should similarly take away monetary damages for such activities. The fear of a big expensive lawsuit is part of what's so damaging and chilling here. At best you should be able to get an injunction, requiring someone to stop the behavior. Finally, it should be explicitly stated that merely doing what you do in the classroom online cannot ever be infringing, and that anyone who files suit over such things should have to pay the legal fees of those educators and educational platforms they have sued.


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