Sara Benson: Welcome to another episode of Copyright Chat. Today, I am very pleased to be speaking remotely with Michael Furlough who is the Executive Director of the HathiTrust Digital Library. Welcome to the show.

Mike Furlough: Hey! Thank you very much for having me. I really appreciate the opportunity to talk with you all today. Sara: Thanks so much for coming and virtually, at least, for spending some time with me to chat about this. So, I’m pretty familiar with the HathiTrust Digital Library but I know a lot of listeners may not be. Could you explain to the listeners who are unfamiliar with the library, what the HathiTrust Digital Library collects? Mike: Sure, and I will give you a little bit of a history, too. So, our primary goal and mission is to collect, preserve, and make accessible materials of scholarly and cultural record. Mostly, that takes the form of books that have been digitized from research libraries. Right now, the collection has about 17.4 million digitized volumes. That is like a book on a shelf that has been put on a scanner and that corresponds to just under 9 million titles. So, that includes books, single authored books, but also, serials, journals, things like that. We got started—really the start of HathiTrust emerged from the moment when Google, when it was still a pretty young company, began working with libraries to scan collections at a really large scale. I mean, their plan had been to or was to simply scan everything in these libraries and one of those early partners with Google was the University of Michigan and soon it was followed by other colleagues from the Big Ten, including Illinois, and those libraries started to plan for large scale cooperatively funded infrastructure that would support preservation and support access and really focus on a researcher or student mode of access to the collection. They recognize that they work together they can do much more with their joint collections effectively in a way that they couldn’t in a grant landscape. So, they also started working with other universities and in 2008 the University of California joined on with the Big Ten to form HathiTrust. We now have about 150 members worldwide and we’ve launched a lot of major programs that help us take advantage of the corpus, take advantage of the collection in ways that you just couldn’t for a print collection, as well. Sara: Wonderful. So, it sounds like the collection is fairly robust at this point especially. What is your role within the library? Mike: So, I’m the Executive Director. My job is to lead the organization as a whole. And it really is an organization, as I said. So, I do things like on a day-to-day basis I’m working with my team of about 12 people to help monitor our uses, monitor our finance. On a larger scale, I’m looking at our strategy, helping to set and define policy. I am accountable to a Board, a board of governors that includes representatives from the memberships, so, I work with them regularly, monthly, in a—to give updates and talk about what we’re working on and to understand what direction we might—what course corrections, rather, we might want to be making. So, we have— one thing I would let your listeners know is that we have services that are operated at different institutions. So, I am based at the University of Michigan, but some of our services are operated here, but others are operated at Indiana University, some at the University of Illinois. California Digital Library also operates some services. All of these are like contracted services. So, even though my team is about 12, really were relying on the distributed expertise of the membership and there are dozens of people that work on HathiTrust. Sara: Wonderful, yeah. I’m very familiar with some of the work that goes on at the University of Illinois in collaboration with the iSchool, as well. Is—can you talk a little bit—I’ve heard a lot of buzz lately around the Emergency Digital Library. Can you talk a little bit about that and why that was started? Mike: Yeah. So, maybe first I should say a little bit about how access usually works in HathiTrust. You know, the collection is, as I said, over 17 million volumes. Much of that material is in copyright and it was scanned lawfully for preservation purposes and we’re able to take advantage of fair use and other exceptions to the copyright law to use the copyrighted materials in particular ways. We can provide access to users who are blind or print disabled, we can make it available for search. The HathiTrust Research Center which is all affiliated with the iSchool of Illinois is a service that allows for advanced users to run software for text and data mining on the entirety of the collection without regards for copyright status. That is something fairly, clearly defined lawful under fair use. But for the works —the only works that we really show in view form, the works that people can read on the site, are the works that are in the public domain. So that’s material that was published before 1925 in the U.S. or maybe it was works that fell out of copyright because they weren’t renewed, or they were never registered. The members of HathiTrust have the ability to access those materials in full and download them. That is the normal way of work, but those in copyright materials, normally readers can’t see them. What we have done recently is launched an emergency temporary access service that is really for us unprecedented and we think unprecedented in library land, as a whole. What we’re doing now is providing limited access to those copyrighted works due to the fact that libraries have been closed for public health reasons. We launched this on the last day of March. We spent about three—three and a half weeks in March planning it, developing it, testing it, before we got to put it out live. Where it’s activated students and faculty and staff at a member institution, like Illinois, have the opportunity to log in HathiTrust and they would log in just as they might log in to their email portal at their university, use the same credentials. Those persons would then have access to books in HathiTrust that are both in the collection of HathiTrust and in your local library collection. So, books that are in the library at Illinois and are in HathiTrust are viewable to students and faculty and staff at Illinois. You can read the books on screen. You can’t download the books in full, though. And we give access to users for up to 60 minutes, but a user can extend that 60-minute period by continuing to read the book. So, if they’re paging through the book their access duration will continue to extend. We call that a check out but it’s really not a check out like you’re taking it away, alright. You’re using it entirely within the HathiTrust interface. Last point about the way this service works is that a user—the number of users who can access a book is—matches the number of books on the shelf. So, if you have one copy of a work only one user at a time can use it, just like only one user can use that book at a time in the library. If it’s three copies on the shelf, then we can allow three users at a time. Where we are making this available is—it’s very localized. It’s the library is—users where their libraries have this service are closed or access to their collections is currently not available, substantially disrupted because of the public health crisis. It’s not activated everywhere. Not all HathiTrust member libraries have chosen to use this service. In some cases, they believe they can provide access in a way that was enough for their patrons or they simply just made the choice not to close all their library locations because their situation allowed that. What we’ve seen in the last several weeks is that usage has been very high and gradually increasing. Since the end of March through yesterday we have had over 208,000 checkouts. So, 208,000 instances of books being checked out, used by a member. That’s an average of just under 5,000 a day. We’re seeing about 3,400 unique books being used in a day on average by about 2,250 unique users per day. All of those are on average. So, we’re — that’s a lot of use for a library that is honestly—can be—is not especially well-known by users until they suddenly find us like this. So, we’re really pleased that we can provide this access. We recognize that in the time when we all of a sudden had to flip a switch and close our buildings up, try to maintain access for instruction and research there’s a real challenge there and unless we took these steps, we felt that our members would be kind of stuck in trying to provide access for their students and faculty. Sara: Yeah, it sounds like it’s getting a lot of use and I’m really pleased to hear that. Is this digital lending emergency library based on the idea of controlled digital lending? I am familiar with that concept that it’s a fair use if you have, say, one of those books in your collection and you’re only lending out one electronic version of the book. Is that kind of the theory behind it or…? Mike: Well, it’s—you know, one difference I would point out here is this: is that we’re not really lending a book. So, in some models of controlled digital lending someone is being given a file that they can then take away and read on other devices, not unlike that you might do at your public library with OverDrive or some applications for your library collections. Emergency temporary access is based on fair use. We—when we were determining if or how to operate this service, we looked at the four factors defined under Section 107 and there were two factors, the first and the fourth, that we really learned on heavily in our analysis. The purpose of the character of the use, for example. What we’re doing here is definitely not a transformative use. When we are digitizing books for computational access, that might be—well not might, it is a transformation of use, but for reading access that is not transformational. But what we are doing here is providing access for research, educational, and noncommercial uses and we enforce research—we enforce that stricture but limiting access to students, faculty, and staff at higher education institutions and we enforce that through authentication. The market impact is another big factor, the fourth factor, impact on the market, and with this service what we’ve tried to do is focus on how we can limit access to these books, those books where the library has already lawfully acquired a copy of the work. So, that is similar to the example you gave a second ago. You know, we’re saying unless the library has a copy of this book, we cannot provide access to that copy. They’re not entitled to it; the users would not ordinarily have access to it on their shelves. But we wanted, also, to focus on how we can limit duplication. We didn’t want to proliferate copies out of HathiTrust. And the collection is really, primarily twentieth century materials to start with. So, a lot of this might be off the market, might be out of print, not all of it, though, by any means and we don’t want to take the risk on that. So, instead what we’re doing is making sure users can read the material, have sufficient time to read the material but we’re not allowing lending or download of the book so that they can actually substitute that copy for a newly purposed of that copy if that’s ordinarily what they choose to do. Sara: That makes sense and I think, also, the fact that it’s limited to staff and students and libraries that have the physical copy in their stacks makes it distinguishable from some other fair use digital lending that I’ve heard about. Mike: Yeah. Sara: How long do you anticipate the emergency library lending to continue or is that kind of dependent on how long the libraries are closed? Mike: That is entirely dependent on a lot of factors. You know, when we launched this, when we first started planning it, we were, I think, all of us in the United States, in particular, but probably elsewhere as well, were gradually coming to grips with the significance of the changes we were going though. You know, when we left our offices in mid-March, we probably thought we would be back in our offices in a month, or at least I fantasized that we might. And so, what we’re really analyzing right now and discussing now, is as circumstances change how does our policy for access under emergency temporary access services, how does that need change, as well? So, we don’t have a date that we’re going to turn this off. The intent for us is really to be responsive to member needs. All of the members of Hathitrust, all the libraries in the United States, really, will be facing different situations. This is not going to be, in fact, it would be easier for us if everybody— if we said on X date were going to turn this off. By wanting to be responsive and ensuring that where the need is there, we can meet it we’re going to have to work with our member libraries to understand their local circumstances and the ways they are planning to re-open. We’re all going to be facing phased restarts and returns to our workplaces. All of our universities and colleges are trying still to figure out what kind of instruction they can offer in person this fall. Our libraries are starting to plan for how they can allow people back into the building and how many and under what circumstances and whether or not their collections can be accessed as they normally would. Right now, you know, I don’t think any of us know how our libraries would operate when we have to limit access to the building. We’re used to allowing as many people in as we can under the fire code but to say well, we’re only going to allow X number of people per square foot per hour which I think a lot of us might have to face, that’s going to be a real challenge. And I think, that question then becomes how do people access those collections based on the public health guidance and strictures that are in place at that point. So, we really aren’t sure how long this service would need to be in place at, say, University of Illinois. A lot of that will depend on Illinois’ specific circumstances. We want to be responsive to the member’s needs, the user’s needs, the student’s needs, but we’re definitely right now reviewing our services and our policy and our fair use analysis and considering how— what it means really to be responsive in that way, in this changed environment, going into the next several months to a year perhaps. Sara: Do you think—just one last question—Do you think that this is an opportunity for people to engage more with fair use? I do, and I wonder if you know, there are people who have never engaged with HathiTrust before who may be engaging with it are kind of taking some interest in why there’s an emergency library. Do you think people are kind of getting the memo about fair use or getting the word out? Mike: You know, that’s a good question. I think that you’re right, under, in the kind of last six weeks, eight weeks, or so, when all of our campuses suddenly changed dramatically, our modes of instruction changed dramatically, we all really have to rely on fair use in a way— to a degree a lot of us really had before or even had been unwilling to in some cases because some institutions may be more risk adverse than others. You know, I think what’s going to be interesting to see is what is, I’m going to use the word consumer here but I really mean student users, faculty users, you know, how do consumer’s expectations of access change in the next year to two years as social distancing continues? You know, if you’ve had access to significant amounts of material or much more easy access to material that you ordinarily did not have before, if fair use is not justified or the fair use argument can’t be made for access when circumstances change, consumers are going have a question about why that is and I think, that will potentially raise some questions about how copyright law might need to be changed to accommodate those different circumstances. Sara: Well, this has been a really interesting discussion and I really appreciate you taking time out. I’m sure you’re very, very busy. Sounds like the HathiTrust library is very busy which I’m very happy about. And as a copyright librarian I just thank you for being to be willing to serve the patrons of my university library in this time when we can’t get in the building and I know that our patrons really appreciate this emergency library access. So, thank you so much for talking to me, thank you for leading the charge and pushing forward with fair use and all of the things that you do every day. Mike: Well, thanks so much. I have to say this is, for me and for the entire team, and I really need to give a shout out to the team, I’m just a spokesperson here. My staff really made this happen and I don’t think we’ve ever found a more rewarding moment in our work than launching this service, frankly. Sara: Well, thanks so much and be well. Mike: Thank you so much, take care.

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