 Good morning, I'm Gary Strong, I'm the University Librarian, and it is a tremendous pleasure to welcome you here today for something that is, a number of us have worked them much more than some of us, but we've watched with, I've watched and Sharon's watched with great interest because for us here at UCLA and in the library how we manage our resources and how we push the envelope as absolutely far to the edge as we can, and I have the University Council sitting here, and she knows my attitudes about these sorts of things, Amy Bloom, you know, how far is fair and absolutely how do we push back to this growing commercial climate that wants to lock everything up and commercialize it, and in the process marginalize those things that aren't commercially viable from the academy, from our researchers and students who are interested in and who can make a tremendous difference in innovation and ideas and creativity going forward. It is a pleasure to welcome you to the inaugural session of the new Code of Best Practices for Fair Use in Research Libraries and to our newly renovated spaces in the Research Library. It's a great treat to have two international experts in the field, Peter Yazzie and Brandon Butler here with us today to speak, and I want to comment about this space in a way because it's about, I guess, new spaces, but it's not about the physical facility anymore. It's not about the website. It's about what we can do in that space, both physical and virtual, to engage and to bring people back into the fold of what libraries, research libraries in particular, but all kinds of libraries are so damn good at doing. Mission fulfillment for academic libraries and institutions requires the ability of students, faculty, researchers and academic libraries to make broad educational use of copyrighted materials in teaching and research. Studies have shown that libraries of all types have historically been timid in their exercise of fair use, and I believe that this program and the new Code can go a long way in providing a framework and approach for libraries and our users to take advantage of the full range of educational uses of copyright at work in teaching and research. I'd like to briefly introduce Peter and Brandon, who will kick off the program, introduce the new Code, and I will totally get out of their way. Brandon Butler is Director of Public Policy Initiatives at the American, or the Association of Research Libraries, a group of 126 major academic and research libraries in North America. His responsibilities include analysis and advocacy regarding copyright, privacy, surveillance, free expression, and telecommunications. He also writes the ARL policy notes blog, which we can give you a URL for if you don't have it, and the ARL policy Twitter feed. He earned bachelor's degrees in English and philosophy from the University of Georgia. I can relate to any English graduate, I guess one. We go on to do much different and odd things in our careers and lives. Masters of philosophy from the University of Texas at Austin, and a law degree from the University of Virginia School of Law. We will forgive him for never having studied in the West, sort of. Before working at ARL, he was an Associate in the Media and Information Technologies Practice at a law firm, Dow Loans PLLC in Washington, D.C. Peter Yazzie, I have known for a long time. He's domestic. He teaches domestic and international copyright law, directs the Intellectual Property Law Clinic, and I can't even pronounce the first word in that. The Glashko Samuelson Intellectual Property Law Clinic and writes about copyright history and theory with Craig Joyce, Michael Leffer, and Tyler Ochoa. He co-authored the standard copyright textbook, Copyright Law. And I understand at noon, can I say this now? At noon, there will be copies here and Yazzie can sign. I think he still knows how to sign his name. In copyright in 1994, he was a member of the Librarian of Congress's Advisory Commission on Copyright Registration and Deposit, and in 1995 was the organizer of the Digital Future Coalition. He's a trustee of the Copyright Society of the USA and a member of the Editorial Board of its Journal. Since 2005, he's been working with Professor Patricia Alfterheide of the American University's Center for Social Media on Projects Design to Promote the Understanding of Fair Use by Documentary Filmmakers and Creators. Their book, Reclaiming Fair Use, which is what we're about today, was published this year. And in 2007, he received the American Library Association's L. Ray Patterson Copyright Award. And in 2009, the intellectual property section of the District of Columbia Bar honored him as the year's champion of intellectual property. It is a tremendous pleasure for UCLA Library to be the kickoff spot for this very, very important enterprise. And I leave it to you gentlemen. We're thrilled to be here and not only are we thrilled to be beginning this phase of the work on the Code of Best Practices in Fair Use for Academic and Research Libraries, but we're thrilled to be doing it here because the UCLA Library, Gary, Sharon Farb, and everyone on the staff has been supportive of this project from the beginning. I think one of the first interviews we may have done at the start of this project was a long discussion with Gary Strong, who helped to put us into the picture and so far as what the situation was with Fair Use and its discontents in the academic library setting and at every stage of the process, and it has been a two-year process, which we'll talk about a little more in a moment, this crowd of people has been there to help and to support. So I can't imagine another place to be beginning this new odyssey, nor can I imagine a library in a library administration that is more progressive and more aware of the issues that we're going to talk about today. So this is a real pleasure. And it's appropriate too because one of the things you're going to hear today from us is that this project is really of buying for librarians. We're lawyers and we're intellectual property lawyers and we have our own opinions about this stuff, but that's not what the document we're going to be talking with you about today expresses. This isn't our document, it isn't the document of the five wonderful copyright experts who participated at the end of the drafting process vetting what we had come up with to make sure that it represented a solid and responsible interpretation of the application of Fair Use to Libraries. This is a new kind of document. This is a document that represents that embodies that puts forward a consensus on the part of the research and academic library community itself about what constitutes Fair Use of copyrighted material in furtherance. And Gary sounded the theme and we're going to sound it again often today in furtherance of the core library mission in the academic and research library or in the academic and research campus setting. So I want to lay that proposition down because it's going to be a foundational one in everything that follows. The format for today is that we're going to spend the first part of this generous program talking about the code, describing briefly where it came from, some of the thinking that lies behind it and what the principles and limitations that it articulates main or meant, I really should say, to the librarians who came up with them. And then, I think, before lunch, we'll have a chance for some exchange, some questions about the specifics of the document, what things mean, what different situations may be covered. So I'm going to talk a little bit about copyright law, its glories and its shortcomings, a little bit about the best practices approach to thinking about Fair Use, a little bit about where libraries fit into that approach. And then we'll begin as soon as possible with our run-through of the code itself. The next slide is something we don't really have to linger over very long because all of you know this. You know that the copyright law of the United States doesn't exist to enable any group of owners or companies to earn rents. It doesn't exist to reward any virtuous behavior on the part of creators. It exists as an incentive for the creation and the distribution of content. And our courts have made that very clear as they've interpreted Article 1 Section 8 of the Constitution from the earliest times to the present day. So how do we go about this? Well, we reward creators with a limited monopoly. That's supposed to give them an incentive to spend time writing or painting or teaching or engaging in other relatively unremunerative activities rather than going out and trading pork belly futures. And we're doing something else as well in copyright law. Copyright law is a kind of property, but it's an unusual kind of property. It's full of holes. It's full of gaps. It's full of uncertainties. And those holes, those gaps, those uncertainties aren't defects in the system of copyright law. They're part of the design. Copyright law isn't absolute. Copyright protection is conditional. And that's because in addition to trying to encourage people to engage in creative activity, we're also very interested in encouraging new contributors to culture to make use of what has gone before. We all know from our individual experiences and engagements with culture that nothing that comes from nowhere, everything has a source. And if copyright law gets too intense, too restrictive, too protective, then the balance is lost. The incentives for new creativity may be working fine, but the opportunity to access existing material as a source of that new creativity is choked off. So we have one policy reason that's internal to copyright law that relates to the purpose of copyright for assuring that the copyright system maintains balance. And then there's another reason too, which the Supreme Court has gone to some lengths to identify and articulate in its recent copyright jurisprudence. And that is that not only is it important from the standpoint of fulfilling the purposes of the copyright system itself to achieve balance in copyright, it's also essential for other constitutional reasons. Because according to the Supreme Court, it's the limitations built into copyright law that accommodate the freedom of expression principle of the First Amendment. The Supreme Court has said without those limitations, without the limitations that are designed to equilibrate the system to achieve balance, the whole copyright project itself might well be unconstitutional as a prior restraint on speech. So we've got internal reasons and external reasons, so to speak, to achieve balance in copyright law. We've got a variety of ways of doing it. And of those ways of doing it, of course, the most important is the copyright fair use doctrine, which has been a part of the law since the 1840s, and which has over time increasingly come into its own as a critical part of that law. Now, the basic proposition that underlies the fair use doctrine and has since just a story first articulated it back in 1842 is that sometimes it's okay, lawful, non-infringing to make use of copyrighted material without permission, without license, without the payment of any fee when to do so adds more to the general cultural, social, or economic well-being than it takes away from the well-being of any individual or any company. And over time, that notion that fair use is a way of balancing the general cultural interest in access against private ownership rights has been articulated through an analysis that was captured in 1976 in section 107 of the Copyright Act, the first codification of the fair use principle, which is sometimes referred to as the four factor analysis. Section 107 says, well, if you want to know whether something is fair use or not, if you're a court looking at it after the factor, or if you're a decision maker trying to make a predictive judgment about whether to go forward or not, there are at least four things you should think about. Why are you doing it? What kind of work are you going to be using without permission? How much are you going to be using? And what could the economic effects, the adverse economic effects of your use be? That formulation, although it's historically grounded in some sense inevitable in the statute, is also in other ways problematic. And I'll come back in a moment to what some of those problems are. First, though, I want to say something about the current moment in fair use jurisprudence in the United States. And that is that for whatever reason, I've got my own theory, which is that fair use has been coming into its own in the last 20 or 25 years, primarily because in other ways, the copyright system has been becoming more and more restrictive, more and more overprotective, if you will, term extension and higher penalties and broader definitions of infringement and so on and so forth. Maybe I'm wrong, but I'm right about this and no one can dispute it. These days, courts are absolutely enthusiastic, more enthusiastic than ever before in the 200-some year history of American copyright about these balancing features of copyright law, including fair use. And again, one of the reasons, as I mentioned a moment ago, is because the Supreme Court has come up with this, I think, quite logical and even inevitable identification between fair use on the one hand and freedom of speech, freedom of expression on the other. And they have, as a result, been big shifts in the way in which fair use is understood in the courts since, oh, about 1990, gathering steam and really taking off probably around 1995, a 20-year or so history of a new way of thinking about fair use. Well, why did we need a new way? Why wasn't the old way good enough? Why weren't those four factors that I mentioned a moment ago a good guide to retrospective decision-making by judges or prospective decision-making by members of communities of practice, such as the library community? Well, I think it's pretty obvious. The four factors in the statute aren't weighted. No one, the statute doesn't teach which of them are more important. The courts have said different things, sometimes even contradicting one another over time about that question, and they're maddeningly vague. And that problem, lack of prioritization among the factors and vagueness in the expression of the factors, has, of course, led to a variety of unfortunate results. One of them is that, to a very large extent, for a while at least, the progressive wing, if you will, of the copyright community really turned away from fair use and rejected it as being too uncertain, too unpredictable to be relied on in actual day-to-day practice. Unfortunate, I think, because if you turn away from fair use, you, in many cases, turn away from what may be, in fact, if it can be developed, if it can be nurtured, if it can be well articulated, the most powerful tool in your toolkit as a cultural practitioner. The other problem, of course, was that, in some cases, courts also were puzzled by the vagueness of the fair use doctrine, and the decisions that they arrived at were not always consistent or easy to interpret as an overall pattern. How this changed is a longer story. If you want to read about it, I can commend to your attention an absolutely terrific article by UCLA's own Neil Netanyel, which is on the website as a resource for this project about the rise of the new way of looking at fair use, the way that has taken over in the courts in the last two decades. That is so-called transformativeness analysis. Now, today, in practice, in most fair use situations, judges confronted with a problem asked not four questions, I mean, formally they may still refer to the four factors, but effectively they're asking two questions. They're asking, did the use transform the material that was appropriated without permission from a copyrighted source? Did it, in other words, add real significant value to that material? Did it repurpose the material for a new audience or towards a new end, different from the one that the material was originally designed to serve? That's the first question. And if the answer to that question is yes, then there's one more question. And that is, is the amount of material that was taken appropriate to the transformative purpose? If the answer to those two questions is yes, then as Professor Netanyel demonstrates so well in his article, the answer is almost always that the use is considered fair. Now, those of you who've done some work on fair use may recognize how radically different this is from the way things were 20 plus years ago. Back in those days, we thought that probably the most important consideration in any fair use analysis was the fourth factor, the economic impact of the use. And so in the library community, with which I've been working for a quarter century in one way or another, the view was very prevalent that fair use of material that was available for license was simply not a possibility. That if there was a commercial licensing market for the use contemplated, that was effectively fatal to any invocation of fair use. And one of the things that this transformation of the law in the last 20 years has achieved, and again, it's documented very, very well in Professor Netanyel's article, is that where transformative uses are concerned, that set of economic considerations has shrunk in importance. I'm not going to tell you that it's completely disappeared from the case law because that would be too large a claim, but it has shrunk into relative insignificance in cases where transformative uses are concerned. And that's, as you can immediately imagine, a huge significant doctrinal development. It creates opportunities. And of course, questions still remain. What is a transformative use? There are some obvious examples. The use of works for scholarly purposes, the works of use for teaching, the works of use for exhibits, just to name a few that are prevalent within the communities that you represent, and many, many more besides. We don't have very much decided case law. In fact, we have effectively no decided case law about fair use in libraries and fair use in education. But we have an accumulating body of case law in other areas helping to define the scope of transformativeness and giving us clues to what an expansive concept this doctrine represents. Originally 25 years ago, and I remember very well, because I was doing this work then, when this idea first was put forward, and actually before it was an idea adopted by judges, it was an idea that was actually proposed by a judge in an article in Harvard Law Review, Judge Pierre Laval, is the father of transformativeness analysis. But before everyone got together, including the Supreme Court, to adopt this idea as a judicial practice, there were real questions. Does transforming something mean you have to change it? That you have to physically or modify it or the digital equivalent thereof in order to transform a painting? Do you have to draw a mustache on it? And these were serious questions 25 years ago. We didn't know. We know now. We know that no physical alteration is necessary. We know that no intervention upon the work is necessary. We know in fact that simply re-contextualizing copyright information can and often does count as transformative use in the court decisions. Again, not library and education decisions. We are fortunate or unfortunate, depending on our point of view, not to have very many of any of those, but in the wider world. So that's one thing we know. This idea has a lot more content, a lot more power, a lot more potential than it may originally have been or have appeared to have 20, 25 years ago. And that has led to the project that I will describe to you in a moment. The project that involves trying to operationalize the power of this new idea in a series of practice communities now happily including the community of academic and research libraries. But there's one other idea that also is important to the background of this project that I need to acknowledge before we proceed. When we get to the principles themselves and the limitations that accompany them and always remember the principles and the limitations need to be considered as an integrated whole. When we get to the principles and limitations, you'll see that in many cases one of the points on which the librarians who helped to write this code insisted was the notion that if a use of copyrighted material is to be considered fair, it needs to be as fully attributed as possible. Now there's nothing about that in the law. The law doesn't say anything about attribution. In fact, if I were telling you as a kind of sort of strict doctrinal copyright scholar what the role of proper attribution is in copyright law in the United States unlike many other countries I'd say it's very little of any role. We don't insist on attribution in the law. But this community felt that attribution was ethically essential. It didn't feel comfortable with assertions of fair use that weren't accompanied by attribution. In that spirit, I need to give attribution for the idea that I'm going to mention to you now because it's not our idea even though it's the idea that animates the project out of which these best practices grow. This is an idea that is really the insight of a wonderful law professor who has been a great friend and contributor to this project since its inception, Mike Madison of the University of Pittsburgh, who was the first American academic to my knowledge to systematically review all of the decided fair use cases from the earliest times to the present day. This was in the middle of the first decade of the new millennium. And Mike saw many interesting patterns. Again, his wonderful article is also available on our resource page, I believe. But the critical pattern that he saw that helped us to get started with this project was this. He discovered that when courts are trying to decide whether a particular kind of activity in a particular community of practice, the community of biographers or the community of filmmakers or the community of commercial publishers is or isn't fair use, they look, the courts look to the articulated values of that community for guidance. And this pattern is, of course, the thing that led us or the Mike's identification of this pattern is the development which along with the rise of transformative analysis in the courts led us to the project of which this activity that we are launching today is a part. Essentially, what we've been doing, Pat after Heidi and I for the last about six years now, maybe even a tiny bit longer, is working with various practice communities to help them to articulate statements of best practices and fair use, which they can use in a variety of different ways to open up space for essential, mission-critical, creative activities. We began with documentary filmmakers. We continued to work with various groups of scholars, learned societies, the International Communications Association, the Society for Cinema and Media Scholars, K through 12 media literacy teachers created a statement which we helped to facilitate providers of online course, courseware were also in the mix. There's a statement of best practices for makers of online video, the kind of stuff that exists on YouTube and equivalent platforms. Archives and collections of dance-related materials created a statement which has been enormously powerful in their field of practice. I mentioned open courseware earlier and the question, of course, is how are these things powerful? Because they aren't legal advice per se, as I mentioned earlier, and they aren't law review articles, as is obvious, and the answer is that because they represent a centrist consensus of opinion within the community, they have potential power, if and when, the issues in question should ever find their way to court, but they have immediate power as a tool for helping to persuade gatekeepers, decision-makers who stand between creative communities and the accomplishment of their mission, that it is safe and appropriate to make greater use of fair use than may previously have been sanctioned. So in the case of this Code of Best Practices for Documentaries, the main gatekeepers were insurance companies, which had been refusing to grant so-called errors and emissions policies to documentary films that incorporated excerpts from pre-existing material without having received clearances or licenses. Within five or six months of the initiation of this Code of Best Practices, all the insurance companies had changed their tune and the result was an incredible influx of new and important documentary films into the marketplace. And there are similar stories to be told about the effect of these Codes of Best Practices on system gatekeepers in every one of the areas where the best practices codes have been articulated and promulgated. So let me say a word then about the Codes in general. One thing that's worth saying, it's worth saying again and again, and I'm going to say it again and again, is that these aren't legal advice, they aren't prescriptive rules designed to guide partitioners, whether documentary filmmakers or research librarians in particular settings. That would of course be not only impossible but inappropriate in a document of this kind. Rather, they are guides to reasoning. The Codes of Best Practices are designed to articulate a shared understanding about how one thinks through a fair use issue to a robust and defensible conclusion. They need, if they are going to be of immediate value in a setting like ours, to be implemented at the institutional level. And again, I hope after lunch we'll be able to talk about that implementation. When we talk about best practices, we don't mean necessarily commonly shared practices. Brandon's going to talk a little bit more about this in a moment but I want to emphasize the point now. The best practices that we document in this Code of Best Practices, as has been true in every one of the Codes of Best Practices so far, are ones in which some individuals or institutions depending on the setting do engage successfully and have over time and that others, institutions and individuals, believe on reflection to be appropriate. In every setting, there's always going to be, there will always be leaders and followers. In every setting, there will always be adventurous individuals and institutions and others who are more weighed down by concerns about risk avoidance. That's inevitable and entirely appropriate. But when we talk about a best practice, we're talking about something that some institutions do and that others approve of and that it is generally believed are the proper and appropriate practices for the community as a whole. And these best practices, as they've been articulated in the series of Codes from the inception of this project, have always taken the same form. That is a statement of principle. It's appropriate as fair use to use a limited amount of copyrighted content in a documentary film to illustrate the point that the film is attempting to make. Now you would think a very controversial proposition, but one that was by no means clear when that code was first articulated. Accompanying that statement of principle is a series of limitations and these are as much a part of the consensus as the principle itself. And in the case of documentary filmmakers, that meant that the amount that you use for purposes of illustration had to be appropriate to the point that you were making it meant attribution. It meant that you should be cautious about reproducing material in which there might be privacy concerns of third parties and so on and so forth. That set of limitations was as much a part of the consensus as the principle itself and so too for the Code of Fair Use, Best Practices for Academic and Research Libraries. The principles, although they're easy to remember and easy to state, don't stand alone. They don't exist without the limitations. So let me, do you want to take it from here, Brandon? Let me then just say one more thing as I turn this over to Brandon and he talks about where all this came from and how it was done. And it's this. And I'll say this is a personal opinion, although I think in some ways it informs the project or at least it informs my participation in the project. Broadly speaking, I think, practice communities in general and this practice community in particular have been, for absolutely understandable reasons, relatively slow to pick up on the possible significance for them of the shift in Fair Use case law, the rise of the transformativeness based approach to Fair Use analysis that I described earlier. There are all kinds of reasons for that which need not concern us now. But what did concern us when we began this project, and Brandon will talk more about that, is that by not fully internalizing the possible significance for themselves of this change, the education community in general, the research library and academic library community in particular were missing something of tremendous potential value and importance to their practice in so far as that practice is aided and abetted by Fair Use. So one of the things that this project has been designed to do and one of the things that we will begin to do now as we travel around the country and talk to different communities, starting today here at UCLA, is to make the point that this change in the law of Fair Use has real meaning, real value, real potential for university and college based communities and that that potential has to be seized if it is going to be fully realized.