 All right, we might as well get started and everyone's time is very valuable these days. So welcome. Thank you for joining us today. Just a note that this session is being recorded, just to let you all know. So we are here to talk about two new resources that have been produced by the software preservation network, and it's law and policy working group. My name is Grant Slatt. I'm a scholarly communications and copyright outreach librarian at the University of Toronto libraries. I'm also the coordinator of the law and policy working group. And I'll pass it over to my colleague to introduce. I'm Anna Enriquez. I am the interim head of scholarly communications and copyright at the Penn State University libraries. So today we're going to be discussing two new resources as I said that's been has produced. So our agenda is to discuss first of all, where these new guides fit within the rest of spins copyright resources and advocacy that spin has been engaged in over the years of its existence. And we'll then go into a summary of the section 30.1 and software users guide followed by a summary of the section 108 users guide will briefly compare some of the affordances and limitations of each section to each other. And then we'll discuss some of sort of the externalities to these sections that persist in perhaps being a barrier or a consideration when considering software preservation in the contracts and TPMs. And if we're not too long winded today, hopefully we'll have a good chunk of time for Q&A. So copyright was identified as a key priority of the software preservation network in its formation. So copyright concerns have been consistently raised as a barrier to the preservation of software. So spin has worked on a number of projects related to copyright. And those of these are the work with the DMCA rulemaking with the Harvard Cyber Lock Clinic which has enabled preservation of DRM encumbered software in the US. Another example is the fair use best practices for software preservation, which lays out how fair use applies to help enable each step in a typical preservation and research access workflow for software preservation. These libraries are currently working on a adaptation of these best fair use best practices to the Canadian context into the very similar framework of fair dealing. And last but not least, spin have filed numerous amicus briefs and comments and joined alongside an increasing global network of advocacy groups that are calling for expanded rights for researchers and research organizations in the digital era. And I'd urge you to explore the spin website where much of this latter category of advocacy work is mentioned and hosted. So the two new resources we're discussing today are as I said the section 108 and the section 31 guides for software collections. You'll find them on in this software preservation network community in Zenodo, and you'll also find them linked to on the spin on the spin website. So, as I said, the guides build on spins previous work. They were group efforts. So and you'll find our acknowledgements at the start of each document and thank you to all who provided input and direction. So these guides are really meant to supplement the other resources that spin has been involved in over the years, in particular the fair use best practices document. And the Oregon story of them is really a question that came up at whatever law and policy working group meetings, which was, you know, is this fair use and I'm really not sure. And the response of other members of the group was, well, wouldn't this be covered by by 108. So we realized that it might be very worthwhile. If resources existed that would help preservationists identify works and activities that could be accomplished without having to go through the exercise of thinking about fair use or for dealing, or at least that could be considered with the two together, and guides that might explain the relationship between the broader fair use or fair dealing exception and the library exceptions and each of our respective copyright acts. So, I will now start by talking about the Canadian guide. The structure of the guide sort of somewhat neatly follows the structure of section 30.1 itself. So my intent was to help professionals working at lands, make sense of the provisions of 30.1 like imagining them, you know, opening up the copyrighted act website in one window and then using the guide alongside it to help make sense of what they're reading in front of them. These clauses in 30.1 are extremely helpful for software collections. Others are somewhat ambiguous. So the intent of the guide was to help iron out some of those ambiguities and maybe explain where some cases fair dealing might come in as a partner to 30.1 and help resolve some of those. So the content of the guide. The first part of the guide rather starts with quite a somewhat long examination of fair dealing and its flexibility, and about how whether it applies to software preservation and in what ways, and in how many cases it might be helpful to think of 30.1 and fair dealing together in your rights toolkit when it comes to software preservation and your software collections. It then goes into discussion of eligibility, and that the 30.1 also contains provision which might allow for some collaborative collection maintenance and management between eligible lands. The guide then discusses the three most relevant clauses as they pertain to software preservation. And then discusses the key limitation placed on these clauses, which is the commercial availability of another version of a given work, which in Canada has somewhat of a complication there that I'll get into today and in the guide. And finally the guide goes into the issue of TPMs and Canada's very broad anti circumvention regime that has been placed in place since 2012. And since TPMs are present in a lot of software. It seemed like it would be useful to address some of the questions that might arise in going through 30.1 and wondering what categories of software these provisions might apply to and which and for which there might be another barrier to consider, namely that the software is encumbered by TPM or digital rights management technologies. So as I mentioned earlier, a car working group is currently working on adapting the code of best practice for fair use and software preservation to the Canadian fair dealing context. But with the absence of such a document for the time being. So part of the guide really, frankly makes the case that fair dealing would cover many copying activities related to software preservation. And it's basis for saying that which it lays out is that a number of cases before the Supreme Court of Canada have ruled on the scope of the role of intermediaries acting on behalf of users fair dealing purposes. And these, these cases have established directly in the CCH case, which was a case about a library, and more indirectly in other cases that intermediaries such as a library or private museum under its own exceptions, can rely on fair dealing or other users rights to act on behalf of the research purposes of users, whether in direct response to a request or in anticipation of one. And fair dealing might especially be more appropriate as it relates to supporting the research and private study of users in a more systematic way, sort of in a scaled up way. Whereas 30.1 in practice might be more focused on the reproduction and preservation of individual works in the routine maintenance and management of a collection and we'll discuss a bit, a bit, a bit more about this soon. And also 30.1. Like any other sort of narrow specific exception is a creature of its the time and place of its drafting and fair dealing by design sort of allows consideration of a wider scope of activities sort of outside the parameters of 30.1 focus on management and maintenance. So 30.1 was last updated in 2012 and I think it's pretty good. But fair dealing can account for, you know, especially as a software, some of the technological affordances involved in the complexities involved in preserving and maintaining access to cultural works and software form. So the Supreme Court in Canada has blessed us with a court decision in 2004, which was about fair dealing and user rights, and their applicability to a library, which was providing remote access to works, and the case involved the great library, the site of Upper Canada faxing works in some cases whole works in some cases excerpts to lawyers around the province. So in CCH amongst many other things that the Supreme Court said the Supreme Court established, you know, what may be called kind of an order of operations of exceptions, and talked about sort of the relationship of library exceptions in section 30 to fair dealing in section 29. And they said that the fair dealing exception is always available. Simply put a library can always prove that its dealings are fair. And then it said it is only if a library weren't able to make out that fair dealing, the fair dealing exception under section 29 applied to what it wanted to do. And then it would turn to 30.2, which is sort of the cousin of 30.1 in the copyright, copyright, copyright act approved that it qualified for under the library exception. So fair dealing is always available. Why use, so why use 30.1 for software. So as I've mentioned, 30.1 is the management and maintenance of the collection exception. Locally sometimes as the absolute formats exception. So it allows lands to make copies of full works. And for institutions that have the fairly conservative fair dealing guidelines that have been developed and put in place across Canada, which there is no mention of software. And then 30.1 might allow for sort of a separate awful mistrack that you could create without considering whether your activities fit within the guidelines that you are following. So, lots of software preservation activities fall out of the specific criteria 30.1. But in CCH, because the lamb exceptions are meant to facilitate users rights. So 30.1 should be interpreted in a large and liberal way, less these user rights be unduly constrained. And so you'll, you'll see that put into practice that when I get into discussion of the specific clauses and input point one. So really 30.1 provides a kind of lawfulness baseline for sort of these general management and maintenance practices at lamps. And so you'll see that completion of fair dealing might leave more room for questions of infrastructure and scale. And hopefully these fair dealing best practices, at least in their first draft will be out before the end of this year. So, let's get into 30.1. First of all, eligibility 30.1 has a fairly broad eligibility requirement for LAMs, and it includes museums. The definition of this eligibility criteria, the definition of a library and archive museum tracks to the definition of a lamb in section two of the copyright act. And so the really, really the only limitations for eligibility for, for an organization or institution here are that the lamb cannot be a for profit institution, or be controlled and administered by a for profit body. This must be open to the public or to researchers. So a hypothetical secret library open to no one would not qualify. But also, you know, significantly perhaps for some libraries, a corporate library archive would not, would not qualify. This is just another example where fear dealing might obviously still qualify if you have a fewer corporate library archive. So a little bit before we get into the specific subsections written right into the very beginning of 30.1 is the possibility for collaborative collection management and maintenance. So third point one says that eligible lambs can make copies of eligible works for their own collection, or for the permanent collection of other libraries. So this is potentially very useful for software and software related file dependency issues. So for example, if a lamb needs a specific version of software that they don't have that is held by another library library for example to view a work in its collection. So two qualifying lambs could share access to this to a particular piece of software to enable one lamb to view something that is collection that that otherwise wouldn't be able to do. So this is great for certain types of problems in the software preservation space, a one to one sharing of a piece of software. The language probably wouldn't be great for setting up sort of a broader shared infrastructure for software collections. You know, that's possible, because of the nature of software, possibly some kind of network for software preservation, like spin. So something like something like the infrastructure that spin is working to develop might be outside the scope of this particular clause in 30.1. And that might be something that would require pondering. Fair dealing, say if a Canadian institution were to join with spin and make use of its infrastructure that it's building. A 3.1 one a is sort of an eligibility definition for for a category of works that are eligible to be copied under 3.1. And the first group of works are works that are rare unpublished, and which are deteriorating damaged or lost or at risk of those things. So a very clear example here would be a piece of unpublished research software stored on a floppy disk, you know, say from the 80s or 90s. But a rare and published piece of software might also qualify. So for example, a specific version of a of a game say Oregon Trail stored on a CD Rome. That particular work might qualify pending an examination of the limitation that I'll discuss later. So there's a lot of stuff that would fit here. Lots of historical software would fit the criteria of a. So in B, we get a particular set of set of parameters and a work that can qualify under B, which is which entitles lands to make a copy of our work available for the purposes of onsite consultation. So as written this this kind of reads as, you know, something, there's a, there's a, there's a deteriorating book that you don't want to share with the public but you can make a copy to cut down on the stresses on that particular volume. This can also apply just as well to optical media or other forms of storage media that degrade or suffer bit rot. And it applies to published works here there's no requirement that it be sort of like a, an unpublished letter or something like that it's it's very broad and it's applicability. So it allows for access, but with a focus on preventing impeding or already existing physical deterioration in an item. And this in person qualification is here in B, but it's not in a or C so which I don't think that because in person access is mentioned here that other means of providing access. We've got so other ways of mediating access to software in particular, such as via sharing a file. Not in person. I don't think I ruled out because in B we get a specific mention of in person access. And so then we move on to see which is sort of the, the biggie. Sorry, I'm going too fast here. This is a wonderful subsection for software collections. And in looking in this subject and closely, I hadn't really noted before before it was pointed pointed out to me by Ariel Katz, how much of an emphasis that this subsection places on the professional judgment of lamb staff. This section says that works can be copied. Not just that they if they are obsolete or becoming obsolete, they can be copied if lamb staff consider works to be obsolete or becoming obsolete, or that the required technology is considered by lamb staff to be unavailable or becoming unavailable unavailable. So, this has very broad applicability all kinds of historic software. And if you take the sort of interpretive prescription of the Supreme Court to apply to this user's right this this lamb exception as well as sort of the definition of research, if you want to give these a large and liberal interpretation. The word there is also very significant it can be, you know, an operating system, a platform, not just a device to play something or device to view something, it can be taken to be something a bit more very applicable to software so if you need a particular operating system to view something, then you would be justified via using this subsection to make a copy that might be useful, and to, or to create a means of access to something by making a copy of an operating system say. So, if you're interpreting in this very very within the dictates of that large and liberal instruction this, this exception can be very powerful. All of these a b and c are subject to a limitation at 30.12. It's really a market check, but it's a market check that applies that has two elements, one of which might be incomprehensible to some of the many many of the Americans who are on the call, who aren't familiar with the cartels that are in charge of reproducing works in Canada for almost 100 years but anyway that's another presentation. So, if you look within the definition of what commercially available means in the copyright in section two of the corporate act. There's only two bits to it. The one is, you know, as you expect. You know, that there's another there's a copy currently available on the market that can be acquired, then reasonable time for reasonable price with reasonable effort. But also, there's something here at be. So, if a license is available from a collective society within a reasonable time for reasonable price, located with a reasonable effort. So this has been a big problem for 30.1 historically for using it to make copies of books, because in Canada. It's a very powerful collective society access copyright, which offers or claims to offer a license which could probably reasonably cover making a copy of a work for the maintenance and management of your collection. But there is no such collective specifically for software. And software if understood as a literary work might well be under the remit of what access copyright claims as his repertoire. So if you're the language and be here available from a collective society within a reasonable time and for a reasonable price may be located with a reasonable effort. I don't think that would be an in keeping with getting in touch with access copyright and trying to get them to give you a license for copying a full work of a piece of software. I don't think simply that simply that isn't available from access copyright at this time. It's also a case where partnering 30.1 with fair dealing is sort of revealing because also in CCH Supreme Court of Canada said that the availability of a license is not relevant to deciding whether a dealing has been fair. And if I were to go on and read the rest of that it would be even more persuasive that here there might be a case where 30.1 is just starting sort of setting a general practice. So I think that supporting fair dealing and pure analysis, this gives sort of like an added piece of lawfulness when you're considering these things. So I hope that's clear to everyone that's really the main software relevant clauses, a B and C, and their limitation. Maybe because I think I'm a bit over my time that the guide also contains the discussion of technological protection measures, as they may apply to software preservation activities. Canada's anti circuit circumvention regime was introduced in 2012. There's no specific mention of an exception being made for exceptions to this regime so otherwise lawful copying is not currently explicitly exempt from the anti circumvention regime which is very stringent and encouragement doesn't have to be proved before that short damages can be applied for circumventing TPMs. And so there might be some very adverse impact and software preservation activities for software that is encumbered by TPMs in Canada. There has been some case law, some pretty bad. Very good. And there's actually a current set of cases with the ironically named, but again black locks working its way through the courts that might allow the courts to provide some further clarity on how the other, the anti circumvention regime was really meant to override other bits of the act which allow lambs to engage in lawful copying for specific purposes. So I encourage you to read that. And that's it for me, I'll pass it over to my colleague, Anna. So now I'm going to run through the 108 guide. And the structure is very similar to the structure of 30.1. We talk about fair use at the beginning. And then we talk about who's eligible for 108 and what are the limitations on your rights under 108, the specific provisions of 108. And I have a guide in there for how to implement it at your institution and what do you need to do as a library or an archives, and then there's a glossary as well. The relationship between section 108 and fair use as Graham alluded to is pretty similar to the relationship between 30.1 and fair dealing. Section 108 provides a baseline of specific users rights for libraries and archives, and fair use is more flexible and broader. You can use either one. And that's, that's quite clear, both from the text of the statute and some case law. So 108 says nothing in this section in any way affects the right of fair use as provided by section 107. And then, excuse me, there is a case, Authors Guild, the Hathi Trust, or the plaintiff, the Authors Guild, tried to say that libraries couldn't rely on fair use because they had 108, they should just stay within 108. And the court rejected that saying section 108 has that savings clause that I just read, and therefore it does not foreclose libraries or archives from relying on fair use. There's another thing to mention here, which is a great article by Jonathan Vand from about 10 years ago called the impact of substantial compliance with copyright exceptions on fair use. And what this is for is this times when section 108, or potentially another copyright exception like 110 or 121, doesn't quite fit what you're doing. You're nearly within that section, but you're not exactly within it. And what Jonathan Vand says is that when you are substantially compliant, when you're nearly compliant with a particular exception, you're just going to have a positive impact on your fair use analysis, especially under the first factor which looks at the purpose and character of your use. So basically, these are uses that Congress has blessed through the specific exceptions. And so we know that they are favored purposes. But keep in mind, whenever you're using 108 or another specific exception is that even when you're not inside the exception, you know you're in territory where it's a favor purpose and and fair use is going to look favorably on your use as well. So we do mention that quite a few times in the guide. So who is eligible for 108. There is a big difference between 108 and 30.1, which is that 108 does not include museums. It's limited to libraries, archives and their employees acting within the scope of employment. So museums are left out and spend suggested many times that they should be added including by the 108 study group, more than 15 years ago. I will note though that a museum that has a library or an archives, you know that library or archives can certainly use 108. And also to the extent that a museum is part of a library or an archives, they can probably use 108. In addition to being a library and archives or employee there of, you can't have a purpose of commercial advantage associated with the reproduction or distribution that you're doing under section 108. You either need to be open to the public or to unaffiliated researchers in a specialized field, very similar to 30.1 requirements. And when you reproduce a work under 108, you either need to include that works copyright notice, or if it doesn't have one you need to include a substitute statement. 108G is a limitation on everything that you're doing under 108. And it says that 108 doesn't apply if the library or the archives or its employee is aware or has substantial reason to believe that it's doing concerted reproduction or related reproduction of multiple copies of the same material. For example, if you were to realize that you have been copying this piece of software for a bunch of people who are all in the same graduate seminar. You would trigger this 108G language and you'd no longer be covered under 108G under 108 at all. But you could pop over and think about it under various and I think those kinds of course related uses are often going to be various. All right. So, once we figure out who's eligible for 108, then there are several different substantive provisions and 108. One that we talk about in the guide is copying unpublished works for preservation and security 108B. So a library or archives can make up to three copies of an unpublished work from their collection, either for preservation and security, or for deposit for research use in another qualified library or archives. There is a condition on this that was added in the mid 90s, which is that if you reproduce that work in a digital format, you can't make it available in a digital format to the public outside the premises of the library or archives. So tying this in with one of the examples that Graham used for 30.1. If you had unpublished research software on a floppy disk, you could copy it under 108B. The copy would be a digital copy, of course, so you'd be limited to on premises access unless you had some way to put it into an analog format for for sharing off your promises. And I should say, no one would actually do that what you would do is you would rely on fair use for for off premises access, you know, to the extent that it applies. There's also 108C it's kind of a sibling provision to 108B. So this is for published works. And we talk about it as replacement copies the replacement copy provision. So you can make up to three copies of a published work as a replacement copy. If the original is damaged to deteriorating lost or stolen, or if the existing format in which the work is stored has become obsolete. Hopefully this is sounding a little bit familiar a little bit analogous to some of the 30.1 provisions, and I'll talk in a minute about about how they line up. There are three conditions on this. So you have to check for an unused replacement copy of the work. And see if one is available at a fair price. If one is, then you can't do this copying. And then we also have that 1990s era limitation about digital formats being limited to on premises use. So if you're working under US law, this is where we get into a copy of Oregon trail, you've got it on a CD. If you have a deteriorating copy there's disk rot on that CD. And you can go ahead and copy it under this section as long as you can't find an unused replacement copy of the work at a fair price. So this section is a version in 108, which doesn't really have an analog and 30.1 it's it's analog and Canadian law I understand is really 30.2 and would be 108 D and E, and this is for copying at the request of users. So this section lets you make a single copy of any of these things, an article or contribution to a periodical issue, a small part of any other copyrighted work, or you could copy an entire work or a substantial part of a work. If you've already determined that you can't get a copy of that work at a fair price. So that market check is required if you want to be copying a substantial part or more. And then there are of course some conditions on this. So, one of the requirements is that the copy needs to become the property of the requesting user. In my recollection, this is how we got started on these guides in our working group as we were talking about copying stuff and giving it to patrons and is that fair use. And, you know, that probably is most of the time, but if you analyze it under 108, it's extremely clear exactly what you need to analyze and you know if you do that market check you can copy the whole thing. So we're talking about copies that become the property of the user where you don't have any notice as the institution that the copy would be used for a purpose other than private study scholarship or research. So you need to display a copyright warning, and there are regulations about this. This is why there's a sort of implementation section in in the 108 guide because you want to be displaying these warnings in the correct way in order to be eligible for D&E. And then there's also an exception here which is that you can't copy musical works, pictorial graphic or sculptural works, or motion pictures or audio visual works except for things dealing with the news under 108 D&E. There is an exception to that exception, which is that you can copy pictorial or graphic works that serve as adjuncts to other works. A classic example of that is you want to copy a book and you can go ahead and copy illustrations that appear in the book. You can copy figures that appear in the book. If we take this all over to the software context, one thing that's pretty clear cut under this section would be copying either part of a Python script or all of a Python script as long as you've done your market check for 108 D&E. So if it's not available at a reasonable price, you can copy the whole script. So anything where we're talking about just code, it lines up very neatly with being a literary work, and software in general is considered a literary work under US law. So other programs that are maybe have more user interface than just a script can also be covered by this provision when they have icons in them and whatnot. That would be this kind of adjunct pictorial or graphic work and you can go ahead and copy that. But when we get into something that might have music in it, there's a problem there. And when we get into audio visual works, there's a problem there as well. So you might have software that has videos in it and we don't have any of this similar language about adjuncts for software that contains music or videos. On top of that, there's some reason to think that video games are audio visual works. So we get into that in the glossary part of the 108 guide. So we're thinking about there for sure. A couple other provisions in 108 that don't really have an analog in 30.1. One of the things that many people associate with 108 is notices on photocopiers. And the point of these notices which are described in 108 F is to limit a library's liability for infringement by its users or patrons. So to begin with, the possibility of a library or an archives being held liable for infringement by one of its users under US law is like vanishingly small. You have to almost try to be liable. So there's a great piece on that ARL blog by Brandon Butler, who's here with us today. And in the spin working group, and that talks about this. So I recommend that if you're actually worried about this. We probably shouldn't be worried about this as libraries and archives, but if you would like to worry even less, you could put some of these notices on your unsupervised reproducing equipment. And in the software context, you know, we don't just want to put these on scanners and photocopiers. And that's that's good. There's printed materials and a lot of software collections, but you might also want to put it on a computer terminal, or any kind of peripherals that you're having patrons use without supervision to copy software. All right. And there's one more thing in 108. So this is 108 h and it was added to 108 at the time that Congress extended the copyright term in the late 90s so they added 20 years to copyright terms. And they also added this language that allows libraries and archives to use works in certain ways if they're in the last year that last 20 years at their term. So that's subject to checking that the work is not subject to normal commercial exploitation, and a copy cannot be obtained at a reasonable price. Just a moment. All right. And also you need to check that the copyright holder has not provided notice of the work being either subject to commercial exploitation or reasonable available at a reasonable price. Last night checked, and nobody had ever provided that notice to the copyright office I think we know that for sure as of like a couple years ago. But, you know, you can, you could always check with them but it seems like copyright holders are not doing this. So what software might we be talking about with 108 h and the stuff that's currently in the last 20 years of their terms would be works that were published at least 75 years ago in 1946 or before. That's, that's basically too early for software but we are getting really close to this provision applying to early software. It would apply to unpublished works whose authors died in 1971 or earlier definitely include software. And to unpublished works of corporate authorship. So works made for hire. Those are not going to be in the last 20 years of their term, until we get to 100 years after the date they were created. So, you know, we're talking about stuff from the 1920s right now. And that's not going to include software for quite a while which is a shame because a lot of early software from the mid 20th century is probably work made for hire and probably doesn't meet the standard of publication under us law. At any rate 108 h is here. It's waiting for us to use it for software and, you know, we also have fair use of 108 h doesn't apply to the stuff you want to do with with mid century software. All right, so there is this guide to implementing section 108 at your institution. Basically, you want to check that you meet the eligibility requirements, and then stay within the parameters of whichever subsection you're relying on. You want to retain the works copyright notice or use a substitute statement and watch out for relying on 108 if you learn that you're doing related or concerted reproduction, you can't do that. So, you would have to think about it under fair use. There are also those additional steps for 108 D and E and we have them outlined in the in the guide. Great. So, now as promised, I'm going to do a quick comparison of the two provisions. I, I already mentioned 30.1 includes museums in the eligible entities that's a clear difference and language around access 30.1 one B. As Graham mentioned talks about in person consultation and 108 didn't have any language about that. Originally, I, in the 1990s when Congress added that language about access. You can't provide remote access to something that's a digital copy. It kind of makes it clear that that access was always included in 108 B and C and I think, you know, they don't make a whole lot of sense without access there. So that's, that's a comparison. What's quite messy to compare is is looking at eligibility for copying. So I'm just looking at 108 B and C and comparing them to 30.1 one A B and C. And the distinction between the different sections is different under US law and under Canadian law so 30.1 one a talks about rare or unpublished works. You know, Graham gave the example of unpublished software on a floppy disk or, you know, commercially distributed software like Oregon Trail they could both be reproduced potentially under 30.1 one A. To do the same stuff under 108, you would have to kind of split it across 108 B and 108 C. Because one applies to unpublished works and one of his published works. And then the other thing that we that we really wanted to mention here, which Graham already mentioned when he was talking is the breadth in 30.1 one C. It's really nice. So, compared with the US provision, we just have where the copy is damaged deteriorating loss stolen or obsolete. So, it just needs to be obsolete in order to be copied under 108 C, but 30.1 one C says that it could be where the library archive or museum considers that it's obsolete or is becoming obsolete. Or that the technology is unavailable or becoming unavailable and that technology part that is part of the US understanding of obsolete, but the additional deference to lambs and and lamb workers. That's in the Canadian statute doesn't really have an analog under US law. Alright, so one more thing and then I'll hand it back to Graham to talk about TPMs and then we'll take your questions. Even when it looks like 108 is going to work perfectly or you're right within the bounds of 30.1. There are some other issues that can that can be a problem. And one of them is contracts or terms of use or any kind of agreement that has been made that's that's legally binding about how the software is going to be used. And when we're talking about contracts. Key questions are always going to be, was there actually a contract made, you know, was it formed and in the US we have case law that's kind of all over the place on, you know, how much does one party need to actually agree with the other party in order to form the contract. Is it enough to unwrap the shrink wrap software license is it enough to just browse to the website that has terms of service. And so that would be the first question is is a contract actually formed. The next question especially for cultural institutions would be are you a party to the contract, because somebody else may have formed a contract with the employer distributor in 1985, but it wasn't necessarily your institution. So if it's not in the contract essentially doesn't apply to you, you know, barring some obscure stuff about like you being a successor to the person who, who was originally party to the contract. But if it's just coming to you from a donor, you're probably not a party to the contract. And then we have to look at what the contract says, and this ties into another project. And in the law and policy work working group at spin that we've been working on that's, that's not published yet, but we have this idea that maybe contracts were nicer back in the day. And it seems like that was wrong. You know they might have been shorter, but they still contain a lot of the restrictive language that we don't like to see as far as software preservation goes. So you would have to look at a particular contract to figure out if it's a problem if you think that there's one that's binding on your institution. And the, the extra bad news for, for the Americans on the call is that 108 explicitly says that it's leaving contractual obligations intact. So you can't say oh 108 allows this. Therefore, it's, it's fine. You're, you're kind of, you're, you're stuck. If you have a contract that's binding, then 108 is not going to help you out at 30.1 does not have that language. And I will pull up the last slide for grant now. Okay, so another thing to consider, as I've already discussed, which forms a part of the guide is the role that TPMs play and potentially limiting or determining which bits of your software collection. You can reproduce using 3.1 section 108 but also the other exceptions in each of our countries respective copyright acts. So it's still somewhat unclear, I think, in both jurisdictions, whether TPMs do override and limit lawful use in sections 107 108 sections 29 and 30 in Canada. In the US, we have something called a circuit split, where we sort of have contradictory case law at place or it's still hard to rely on that side of the law to make decisions about whether TPM applies. TPMs do override fair use and other exceptions. SPIN has worked to establish exceptions to these anti-circumvention rules for software collections, including most recently in 2021, where remote access rights for non-game software was secured during the DMCA, during a perennial rulemaking process. And when these slides are shared, there's a link there to a slide deck by Brandon that goes into what actually was one in that process and what some of the implications are for fair use and for other things. But if no, but we're still, we still don't know if what the implications might be if no. And similarly in Canada, there's sort of multiple strands of clarity seeking going on. And there's the possible outcome of the black locks cases where intervenors have participated and where there may be some instructive findings by a court about was it parliament's intent to override user's rights in the act with section 41. Section 41 itself says that it may impact other certain things, namely research, private study, and allows the government council the means to issue regulation to limit the scope of section 41. There has been no such regulation released. And there is no sort of formal process for like the rulemaking for Canadians to band together and make a plea for such a limitation on the scope. So here's the upcoming mandated review of the copyright act 2022 23 where there's a chance that sort of legislation could be could be released that might limit the scope but otherwise, we still don't really know what ppm's might do to our users rights and I think that's a fairly optimistic way of looking at it. And I tried to strike a balance between the sort of the bleak view and a more optimistic view in the guide, but really I think it's still an unknown in Canada. What the scope of section 41 is for for lands and for users rights more generally. And with that, it's the end of our, our slides. So if you all have any questions feel free to post them in the chat, or unmute or unblind yourself and ask a question. We'd be happy to try to answer them. Oh, hi. Really interesting talks. Thank you, thank you both. I have a question around preservation of software where the sort of provenance might have been uncertain, let's say or I'm entirely sure how the software got into your collection you don't necessarily have a, maybe it was a donation, maybe it was something that somebody downloaded from somewhere and it just sort of happened to show up in your archives. Does the copyright law. I mean, is that covered here or what would be the status of that kind of software in a collection. That's a great question and I don't, you seem more certain of something to say than I do. So, so there is a section in one of the other specific exceptions in US copyright law talks about one 10 one says that you can only use one 10 one with a copy that was lawfully made, or at least one that you didn't know was not lawfully made or didn't have reason to know was not lawfully made. There's not language like that in 108 as far as I can think. So, you know, Congress, US copyright law, sometimes makes a distinction about this and sometimes doesn't and I don't think 108. You know there's there's not a requirement like that in 108 be your 108 C that says, well you can only preserve deteriorating works if they were lawfully made in the first place. So, there's that that's the 108 answer as opposed to the like, you know, it's a big question but as far as the 108 guide I think basically it doesn't look at that issue. And actually in in Canadian law there are specific educational exceptions, which do sort of dial dial down and say, you know, if you should have known or know that it's a legitimate or unlawfully required copy then, etc doesn't apply. But there's nothing in 30.1 or, you know, in the fair dealing exception and some other users rights that have something similar to that. So that would be the only the works available on the internet exception which is specifically sort of an education and teaching focused exception, where there is a requirement there. Thank you. That was so helpful. Yeah, so just as a point in the chat, it would be nice to sort of indemnify archivists. We don't really have that under us law but I will just mention provision in in the part of the Copyright Act in the US that talks about damages. And what what happens at the end of a copyright case if you are liable at section 504 and section 504 C2 says that statutory damages shall be remitted by you are not available. If the infringer had grounds had reasonable grounds for believing that their use was a fair use under section 107 and the infringer was an agent or employee of a nonprofit educational institution library or archives or the library or archives or institution itself. So there's that. And Graham is saying in the chat that there's a similar limited indemnification related to evasion of TPMs for for lamb employees. Well, I guess this is your I guess we are literally out of time but at the buzzer. There's literally never been any litigation about 108 per se that I'm aware of. And then. So, Graham has there ever been litigation in Canada about 30.1 per se I mean you mentioned CCH which sort of mentioned 30.1 but nobody's ever been sued and said, I'd use 30.1 and then one or lost right. But I'm aware of. And, you know, similarly similar to how Anna framed the happy dress case the CCH case was the case of a publisher saying, no no no you're limited to this specific exception and the Supreme Court saying yes but also fair dealing, but I'm not aware of a litigation that specifically grew out of the, you know the in the disputed use of 30.1 or 30.2 for that matter. Yeah, okay cool well so then I mean you know maybe that's another interesting in thinking about these guides and these provisions like nobody wants to sue libraries. And the reason these things aren't litigated and libraries are very careful and so, you know that's another part of living, living, you know, living as a library within the realm of copyright is we don't, we don't have a lot of appetite for risk but we're probably also not subject to a lot of risk. So, you know, it's a weird, it's a weird place to be but it's not as scary as maybe it seems at first glance. Okay, thanks guys. Sorry. All right, well thanks everyone for joining us. Let us either of us know if you have any questions about the guides. I hope this was informative and it's a great decision to a large turnout for for copyright related materials. And I hope you all have a good week.