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About Ask The Lawyer

WNYLRC offers a free Ask The Lawyer service to member libraries and library systems. To request the service, members must complete the Ask the WNYLRC Lawyer! Request Form.  Members should provide as much information as possible on the issue to ensure the attorney has the information needed to fully answer the member library’s inquiry. Member libraries also have the ability to upload documents that might be helpful in assisting the attorney who is reviewing the issue.

We ask members to check the RAQ section first before completing the form.  Another member may have already asked the same question!  


Questions sent to WNYLRC's "Ask the Lawyer" service will be reviewed by a WNYLRC staff member who is the service liaison, and sent to our attorney for answers. Responses and answers may be provided in several formats: 

  •         a memo shared with all members if the issue is pertinent to more than one member library,
  •         a training session if the issue is pertinent to a group of member libraries or type of library members,
  •         an addition to the "WNYLRC Legal RAQ" on the WNYLRC web site, or
  •         a memo shared only with the member library requesting the information and the WNYLRC service liaison who manages the service.


Please keep in mind: the "Ask the Lawyer" service is not legal representation of your organization. Always alert officers at your institution if a lawsuit is threatened, or if a matter is so specific or critical that your own institution's attorney should be involved. And yes -- you can always "Ask the Lawyer," if you don't know if a particular issue hits that threshold!

About Our Attorney

The service is staffed by Buffalo attorney Stephanie ("Cole") Adams, who first developed a deep connection to libraries working as a page, then clerk, at her hometown library in New Hartford, NY. Ms. Adams went on to work at the libraries of her Alma Maters, Hampshire College, and SUNY Buffalo School of Law. She served for over 10 years as the in-house counsel at Niagara University, in Niagara Falls, NY. An attorney admitted to practice in both the state and federal courts of New York, Ms. Adams has extensive experience with the issues confronting information professionals. Ms. Adams works closely with WNYLRC and other library Councils to craft useful replies to member library questions.

RAQ: Recently Asked Questions

Topic: Sharing supplemental textbook resources 11/17/2017
Can a faculty member, who no longer requires students to buy a textbook, duplicate and share (with...
Posted: Friday, November 17, 2017

MEMBER QUESTION

Can a faculty member, who no longer requires students to buy a textbook, duplicate and share (with the students) the supplemental instructional resources provided by the publisher? The resources can be both digital and hard copy.

WNYLRC ATTORNEY’S RESPONSE

Sometimes, an instructor will try and solve both these problems by removing the book from the syllabus, while keeping a few choice materials on hand from the instructor copy supplied by the publisher. This seems like a win-win: the students have one less book to buy, while the lecture notes, visual aids, and LMS can carry forward the valuable content retained by the instructor. But is this scenario allowed?

 

The answer lies in the specific product’s license. And while there are countless publishers with every permutation of license, that answer will probably be: NO.

 

How can this be? Isn’t it Fair Use? Didn’t the institution or instructor already buy the materials?

 

This is where things get interesting.

 

First: how can this be? It is a very deliberate tactic by the publisher. Responding to a market resisting expensive textbooks, academic publishers are always developing new ways to incentivize purchasing. One technique is selling student materials “coupled” to instructor-side materials via a license. The license conveys a copy, rights of duplication, and perhaps digital sharing for instructor-side materials, conditioned on a requirement that the textbook be “adopted” (officially required) in the course syllabus. The instructor, who is getting free materials, adds the book, and the contractual requirement is met (until it isn’t).

 

This approach is some pretty clever lawyering (and marketing), since it uses copyright, often some trademark, and a lot of contract law to give instructors more rights than they have under copyright law (to duplicate, upload, etc)…and then yanks those rights away, if the book is no longer required. The fact that these rights are financially under-written by students is one of the unsung tensions of higher ed.1

 

Second: Fair Use. There are many circumstances in which limited duplication of instructor-side materials could qualify as Fair Use (teaching a course critically analyzing instructor-side materials would be one of them). But simply continuing to use the rights from a license the purchaser has departed from (by no longer adopting the textbook into the syllabus) is not one a Fair Use…it’s just a violation of the contract, and potentially, of copyright. Both could bring penalties; one contractual, and one statutory.

 

Finally, “First Sale Doctrine”: Some rights to the instructor-side hard copy might be retained under the “First Sale Doctrine,” which allows purchasers to re-sell, read, and retain physical copies once they are in the market.2 But beware…the license could contain a contractual requirement to return the instructor-side materials when the license is no longer valid (this would be done through a rental or other restricted acquisition provision).

 

The answer to a question like this is almost always in the specific license from the publisher.3 Deviation from those terms, unless there is a very clear case of Fair Use, is not wise.

 

1 My tone is cynical, but on the flip side, this is how the authors and creators of instructional works get paid. We can discuss the equities of this system another day!

 

2 The First Sale Doctrine is taking a beating from the increasing reliance on digital copies. But that is yet another topic, for another day!

 

3 Something our member suggested, when posing the scenario. WNYLRC has savvy members.

 

Topic: Digitization of Video Recordings Not In Public Domain 11/15/2017
We have video recordings of campus speakers that we are interested in digitizing and publishing to...
Posted: Wednesday, November 15, 2017

MEMBER QUESTION

We have video recordings of campus speakers that we are interested in digitizing and publishing to an online platform. They are currently on VHS and/or DVD and available in the Library to be checked-out. 


The speakers include writers and poets who recite their published, copyrighted works to the college audience. Is it possible for us to post the recordings of these readings (as well as question and answer sessions) online? Most likely there was no signed license agreement when filmed.

WNYLRC ATTORNEY’S RESPONSE

Part of the mission of higher education institutions is to bring important, provocative, and enlightening speakers to their communities. Over the years, this results in an impressive roster of authors, artists, professionals, politicians, comedians, dignitaries, and civic leaders, having spoken on campus. Sometimes, all or part of this roster was captured on film, video, or audio recording.

 

The rights to those recordings—and what can be done with them in the digital age—can present a complicated situation. Each individual recording comes with a suite of considerations that can make a digitization project difficult. But in a scenario like the one posed by the member, critical points of analysis can be assessed, so a way forward is found. Here are those critical points:

 

Assessment Point #1: Who owns the copyright (to the recording)?

First, it is useful to establish who owns the copyright to the actual recording. Since copyright to a recording vests in the person who created the recording, not the person being recorded (unless it was a selfie), this is sometimes easy to assess. As we say in the biz: “who pushed the ‘record’ button?”

 

If the recording was made by an employee of the institution, and there was no contractual agreement otherwise, then the copyright to the recording is owned by the institution. If it was recorded by a student who just happened to be there, or a third-party attendee, the school doesn’t own it (which becomes an issue in the subsequent steps). Awareness of this factor is a good starting point for what lies ahead.

 

If your institution owns the copyrights to the recording, you can skip points #2, #3 and #4, below.

 

Assessment Point #2: Is this recording part of the library’s collection?

Just because the educational institution owns the physical copy doesn’t mean it is part of the library’s collection. For purposes of numbers 3 and 4, below, if your institution doesn’t own the recording, in order to convert and/or conserve it under Copyright Act Section 108 (the section giving special rights to certain libraries), the original recording must be formally cataloged and included in the library’s collection.

 

Assessment Point #3: Is the library in a position to convert the copy to a digital medium?

If the copy is formally a part of the library’s collection, and it is on a format considered “obsolete” under section 108 of the Copyright code (so long as the devices are no longer manufactured, VHS is, for example, is considered “obsolete”), the library may convert it to a digital format, and loan it out as provided by the §108. NOTE: this does NOT mean you can include it in an online digital collection, for anyone to access any time, but it takes you one step closer to it!

 

Assessment Point #4: Does the library need to conserve the copy?

If the original copy is deteriorating, it may be duplicated as set forth in Section 108. NOTE: this also does NOT mean you can include it in an online digital collection, but it makes sure than once you can, your original copy is safe, and backed up for posterity.

 

Assessment Point #5: Did the institution have any right to record, and/or to use the image of the person who was recorded?

This requires scouring the contracts of the institution. Most speaker contracts these days include terms controlling the right (or not) to make a recording, but, as reflected in the scenario posed by the member, in the past this was not the case. This assessment is critical, especially since at academic institutions, other departments at the institution may want to use the content to promote and celebrate the institution…but in New York, the commercial use of a person’s image, without their written consent, can carry both civil and criminal penalties.

 

Assessment Point #6: Are there any concerns with trademark?

The risk posed in #5 is increased if the speakers’s name and image is currently being used for purposes of a trademark (like “Maya Angelou” which is protected under Federal Trademark 86978575), or if a trademark was on display during the presentation. This means any arguably commercial use (like selling copies, putting it on the school’s website or catalog, or selling a t-shirt promoting the collection) should only be done in consultation with an attorney.

 

Assessment Point #7: Are there other copyright concerns?

This is the meat in the sandwich of the member’s scenario. Going through the above steps, even if an institution:

1) owns the recording;

2) includes the recording in the library’s catalog;

3) meets the 108 criteria to convert it from an obsolete format;

4) meets the 108 criteria to make preservation copies;

5) has permission to use the name and likeness of the speaker in any and all formats, for whatever reason, forever;

6) verifies there are no trademarks involved…

 

if the speaker read a copyrighted work during the recording, that “performance” of a copyrighted work MIGHT be subject to its own copyright, and thus, bring with it a host of new restrictions, cramping the bounds of your digital usage.

 

What a pain, right?

 

Fortunately, there is solution. For any library at an educational institution contemplating digitizing the institution’s recorded guest speakers, if the written record doesn’t reflect clear permission to record and use the content, writing to the original speaker, or the current copyright owners, to ask for permission, may be the best solution. A sample request, with the variables notes in CAPS, is right here1:

 

Dear NAME:

 

You may recall speaking at INSTITUTION on DATE. During that performance, you read [INSERT TITLE(S)] (hereinafter, the “Works”).

 

Our on-campus library seeks to include a copy of that performance, recorded on FORMAT, in an online, digital collection to be called TITLE (the “Collection”). We would like to include the recording in an online Collection, so it may be accessed by the public, for purposes of enjoyment and scholarship.

 

To that end, we ask the following:

 

1. Are you the sole copyright owner of the Works? Yes No

 

2. If you are not the owner, do you retain the right to give permission for their reproduction, distribution, performance, and display? Yes No

 

If you are not the copyright holder, or do not hold the rights, please let us know who does: _____________________________________________________________

 

If you are the copyright holder, please consider the below requests:

 

3. Copyright License

May [INSTITUTION] have a non-transferable, irrevocable license to reproduce, duplicate, display, perform, and, by virtue of the recording being part of the Collection, prepare a derivative work of, the Work(s), solely as performed by you and recorded by INSTITUTION on DATE? Yes No

 

SIGNATURE:_____________________________

 

DATE:_____________________

 

 

Image Release

We would like to use your name and picture to promote the Collection. May [INSTITUTION] use your name and likeness, including but not limited to photos or images of you, the recorded sound of your voice, for the purpose of promoting the Collection in hard copy, on the institution’s website, and via any other medium existing now, or later developed? Yes No

 

 

SIGNATURE:_____________________________

 

PRINT NAME:__________________________________

 

DATE:_____________________

 

Thank you for considering this request. I included a self-addressed, stamped envelope, in the hope of a favorable reply.

 

Of course, the risk of asking is that they say “no”…and that they demand you stop using the recording of the derivative work! That is why in all of this, any contracts should be assessed by an attorney, so the rights of your institution are protected, and any requests for permissions should be carefully considered prior to submitting the request.

 

So, the answer is (and I appreciate it took a long time to get there!): unless the recording were news coverage—which is assessed under a different array of laws—permission (given either at the time of the arrangement, or many years later) for digital duplication and distribution is required, but can be arranged well after the event.

1 NOTE: This approach is for educational institutions that were also the original recorders of the work to be digitized, who are seeking a wide degree of latitude on their use. This approach is NOT suggested for digitization efforts involving content generated by third parties at non-educational institutions. It also does not cover recordings of musical works (that would be a whole other answer!).

 

Topic: NY Statute § 4509. Library records 10/31/2017
Can a library report a crime based on use of library resources while honoring CPLR 4509 (assuring ...
Posted: Tuesday, October 31, 2017

MEMBER QUESTION

Can a library report a crime based on use of library resources while honoring CPLR 4509 (assuring the confidentiality of circulation records)?

WNYLRC ATTORNEY’S RESPONSE

CPLR 45091 is a critical caisson in a library’s foundation, protecting users from those who would draw negative inferences based on access to the library.  The law sets out, in bold, simple language, that librarians shall not disclose such records to law enforcement (or others), unless there is an appropriate subpoena, court order, or disclosure is required by law. 

 

That said, there will be instances when serious patron misconduct might require a report to law enforcement—but the mere act of reporting it will disclose a circulation record (for instance, a patron signing onto a library computer that is then used for a crime).  How does a library report the criminal behavior, while honoring the letter and spirit of 4509? 

 

The American Library Association has compiled a great array of information on balancing these priorities, and it is clear that the answer lies in the library’s policies.  I will not re-create this excellent list of considerations here, but when it comes to this particular question, it is clear every library should have:  

 

  • Policies regulating conduct in the library (a policy on internet use can play a part in this); 

  • A policy setting the conditions for loss of patron privileges when misconduct impacts the community or library operations (this policy must have appropriate due process and levels of appeal); 

  • A policy, or well-established internal procedure, for reporting misconduct impacting operations of the library to law enforcement; this policy or procedure should consider how 4509 will be honored when such a report must be made; 

  • policy for responding to law enforcement requests for circulation records (not based on a library’s report).  This policy should include the library’s process for evaluating law enforcement requests; 

 

Topic: Time Off Benefit Policy 10/16/2017
A member asks…[We] are switching to a Paid Time Off (PTO) model in 2018 and are looking for...
Posted: Tuesday, October 31, 2017

MEMBER QUESTION

A member asks…[We] are switching to a Paid Time Off (PTO) model in 2018 and are looking for guidance on how to handle payout of the benefit when an employee terminates from employment. We would like to offer each employee their full yearly amount of PTO at the beginning of the calendar year (or start date of employment for new hires). However, we are concerned about the budget impact of having to pay out for every hour of PTO an employee has amassed in situations where employees terminate early in the year. As such, we are exploring a policy in where an employee receives all of their PTO hours at the beginning of the year and is free to use those days for time off. But if they terminate, they would only be paid out for a prorated amount of the PTO balance they have based on the number of hours they worked during the calendar year in which they terminated. Would such a system, if made clear in our Personnel Policy and not impacting any time accrued under a previous policy, be acceptable? Alternatively, would the Library be able to cap the amount of hours paid out upon termination to an amount we determine (35 hours/70 hours)? … Any feedback you could provide would be greatly appreciated. [Emphasis added] 

WNYLRC ATTORNEY’S RESPONSE

Libraries are service-intensive environments, which means they depend on their employees to report to work. However, since so much depends on staff, libraries are also wise to give their employees the tools for self-care and a proper work-life balance. A PTO policy is a great way to facilitate this.

 

What is “PTO?” Put simply, PTO is a finite amount of paid time off work (scheduled or unscheduled), to be used for vacation, short illnesses, “mental health days,” or whatever else is needed (note: often, bereavement is excluded). By not dividing time off into distinct types, PTO enhances employee privacy and flexibility—while decreasing the administrative burden of tracking the type of time.

 

The increasing use of PTO also makes sense as the ADA, the FMLA, and the upcoming New York Paid Family Leave Act have changed the landscape of medically-related time off.

 

Before we get to the heart of the member’s question, let’s start with some crucial basics. Under NY labor law, employers must have a written policy (or policies) governing sick leave, vacation, personal leave, and holidays.1 Under that law, as governed by the policy, the value of these “wage supplements” must be paid out at termination.

 

That said, conditions can be put on the terms of these “supplements”; according to the DOL the amount of time that can be cashed out “depends upon the terms of the vacation and/or resignation policy.”

 

This guidance is backed up by case law: New York courts2 have held that the required policies about PTO can specify that employees lose accrued benefits if such loss is a condition of the policy.

 

Among other things, conditions in PTO policies may cover the following:

 

  • How PTO accrues (annual, or more incremental);

  • How eligibility and earned amounts are governed (for instance, part-time vs. full-time, or based on years of service);

  • How much PTO can be paid out at termination;

  • If eligibility for payout survives termination for misconduct;

  • How “scheduled” and “unscheduled” (sick, emergency meeting, etc.) PTO is granted;

  • If a certain amount of reasonable notice before quitting is required to get the payout;

  • If a restriction on the number of employees using PTO at once is needed (this is critical for service-intensive environments like libraries).

 

In addition, any transitional/new policy can (and should) expressly address already accrued wage supplements (for instance, converting any unused vacation to PTO, or paying it out). As the member shows sensitivity to in their question, the new policy should never nullify wage supplements already accrued.

 

So, here we are, at the heart of the member’s question: can the amount of PTO cashed out at termination be pro-rated based on the time of year the resignation happens? The answer is: Once given, PTO should not be clawed back based on a variable factors, even those factors are set out in the policy. However, the solution is just as the member posits (and as is listed in the third bullet, above): uniformly capping the amount to be paid out, and applying it without fail.3

 

IMPORTANT CONSIDERATION

Of course, developing a PTO policy does not happen in a vacuum. Aside from the recruitment, retention, and employee wellness objectives, a library considering transitioning to PTO needs to consider:

 

  • The nature of the library (public, private, part of a larger entity, etc.);

  • The bylaws and role of any board policy or committee (for instance, if there is a personnel or HR committee, this topic would be of interest to them);

  • Any union contracts or other contractual obligations at play;

  • The full suite of employee benefit policies, and the recruitment, development, and employee retention and compliance goals they serve;

  • The budget impact of any changes.

 

Once a library arrives at draft policy, prior to it being enacted, a lawyer should review the policy to ensure it is compliant, and works well with related legal obligations, contracts, policies and procedures. Further, it is ideal if the policy is reviewed by the treasurer, and/or the person preparing the budget, and/or the person who files any tax forms on behalf of the entity. I’m no accountant, but I know PTO is logged in a specific way on balance sheets, and it can have an impact on financial statements.

 

So once you have your draft PTO policy, invite your lawyer, your treasurer, and your accountant (there’s a joke in there somewhere, I know), over for a quick cup of coffee, and make sure everyone says you’re ready to launch!

1 Section 195.5 of the Labor Law states: Every employer shall notify his employees in writing or by publicly posting the employer's policy on sick leave, vacation, personal leave, holidays and hours.

 

2 [See Glenville Gage Company, Inc. v. Industrial Board of Appeals of the State of New York, Department of Labor, 70 AD2d 283 (3d Dept 1979) affd, 52 NY2d 777 (1980).]

 

3 PTO can also be given on a more incremental basis, but this nullifies some of the flexibility benefits it can bring. That said, the policy should consider when an employee first qualifies, and if starting employees get a pro-rated amount based on their start date.

 

 

Topic: Transmission of Television News Broadcast 10/16/2017
We are aware of the requirement to have a movie license to show a movie in a public forum, such as...
Posted: Monday, October 16, 2017

MEMBER QUESTION

We are aware of the requirement to have a movie license to show a movie in a public forum, such as in a public library and the restrictions associated. My question is: are there restrictions to providing access to television programming, such as news events, in a public setting?......

WNYLRC ATTORNEY’S RESPONSE

The lawyer answers:

There is a simple answer to this question, although it stands on a mountain of conflicting law, international disputes regarding IP, and arguments about music rights[1]

Section 110 of the Copyright Act allows an entity to have one medium-sized tv (of a kind commonly used in private homes…no JumboTrons), showing a broadcast of anything but songs[2], so long as there is no admission charged, and the programming isn’t re-transmitted (streamed, split for viewing on another device, etc).

The member then took her question to the next logical place…

Taking this a step further, do live streaming of such events accessed via the Internet have such restrictions? i.e. during the recent hurricanes, a public library provided viewing access to live streaming news events to members of the public (public forum). Is such legal? Can a public library "broadcast" internally - for the viewing ability of the public - show television programs, news reports, live streaming videos, etc. 


The lawyer answers….

This is where things get complicated.  There are any number of law review articles, commentaries, and cases debating how copyright law, communications law, and contract law intersect on this issue.  While “streaming” has become a catch-all term for any audiovisual (or audio) work accessible via the internet, the precise technology behind the display plays into the analysis[3].  Further, many news sites require log-in information connected to an individual person to get full access, so the person whose account is associated with an allegedly non-conforming or infringing use could face personal consequences.

The bottom line: an institution would need to exercise caution on a case-by-case basis to re-transmit information, since the 110(5)(a) exception might not apply.  But if the content is on one screen, no admission is charged, and there is no re-transmission, it might be possible.

The member then asked the “Ultimate YouTube” question:

While not, in my opinion the same as showing the news, a television program, etc.....The following is known about YouTube "terms of service: "Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a “download” or similar link displayed by YouTube on the Service for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content. YouTube and its licensors reserve all rights not expressly granted in and to the Service and the Content.

This question highlights exactly what I had to talk about above: that the licensing terms of the websites may bring further restrictions than the copyright law.  That said, here is an important point for libraries, the guardians of information: Section 110 is not the only exception to infringement for the transmission of audiovisual works. Fair Use, in Section 107, and the “Library and Archive Exception, in Section 108, can also apply. 

Of course, every “Fair Use” requires a fact-specific analysis.  But it is certainly possible that a library could aggregate and then re-transmit select streamed information in a way that met both the emergency response needs of the public, and the 107 criteria (although there could still be a risk of a civil claim based on violating the “terms of use” of the site).  The key would be avoiding, generally, wholesale copying/displaying of non-transformative content[4], and making sure no particular staff member is vulnerable to being accused of violating a “terms of use” license.

As to Section 108, the capture and archiving (and perhaps, later, lending/copying) of streamed content goes beyond the scope of this reply, but it’s an issue to keep in mind.  Nowadays, a great amount of valuable content is “born digital,” and the meaningful archiving of such content may fall within a particular library’s mission.  For this, any library should consider exactly what it wants to do, the precise nature of the source material, the precise legal concerns….and develop a strategy to do it. This will only get more important in the decades to come.[5]

[1] Trust me.  It’s a mess.  Just do a search for “Berne” and “homestyle exception” and “WIPO.”

[2] This answer does not address playing audio works, which fall in part under 110, but require different analyses (yes, more than one).

[3] For instance, in the case Joe Hand Productions, Inc., v. Maupin (2016, U.S. District, EDNY), the court assessed a claim based on a saloon owner using a Roku device to display a Mixed Martial Arts fight accessed through his Cablevision account.  The court refused to dismiss the claims for both copyright infringement and violation of the Federal Communications Act.  As of this writing, that case is still in its pre-trial phase.  Of course, the saloon probably pulled in a lot more money for hosting an MMA re-transmission than a library will pull in for providing emergency news access, but the financial rewards of the performance are not the only factor.

[4] I appreciate that during a time of extreme need, when lives are on the line, a cost-benefit analysis might also cause someone to throw caution to the wind and just re-broadcast the content without doing a Fair Use analysis!  I don’t advise that, but I don’t want readers to think I am a heartless legal robot.

[5] Consider the various databases of valuable research/data that have changed format and content due to administrative changes in the federal executive branch, for instance.

Topic: Library’s Facebook Page versus Staff Member’s Facebook Page 10/11/2017
We are struggling with a freedom of expression issue here at our library. When a staff member post...
Posted: Wednesday, October 11, 2017

MEMBER QUESTION

We are struggling with a freedom of expression issue here at our library. When a staff member posts on his/her personal Facebook page something to do with the library, whether positive, negative, or neutral, what rights does the Library have, if any? We need to be able to differentiate the "official" library news, which gets posted by an administrator, from the library news that get posted/shared by a staff member on a personal Facebook account. Are there any legal issues surrounding this situation that we should be aware of as we begin to create our Public Relations policies?

WNYLRC ATTORNEY’S RESPONSE

The lawyer answers…

 

This is an area that library leadership has to be very careful about. While the laws, regulations, and policies governing library employees vary (based on the type of the library, and the type of institution the library/archive might be part of), there is a growing body of case law ruling that employers may not discipline—or chill—employees’ use of social networking to comment about their work experience.

 

As but one example, a recent National Relations Board (NLRB) decision1 barred a company from using the following employee handbook provisions:

 

  • Prohibiting the posting of “embarrassing, insulting, demeaning or damaging information” about the employer, its products, customers or employees.

  • Barring discussion of all information gathered in conversations, emails, and meetings as “confidential and proprietary.”

  • Prohibiting employees from referencing or citing employer’s members, employees or vendors in social networking without their express consent.

  • Maintaining a rule in a “Social Networking Guideline” that prohibits the use of the employer’s name, logos or trademark without the employer’s consent.

 

Although the case cited is from a union environment, the NLRB has claimed jurisdiction for non-union workplaces where federal grant dollars fund operations2. And of course, municipal-owned libraries, who might not be subject to NLRB jurisdiction, have to worry about First Amendment concerns—a different but not less critical priority. This well-developed case-law means I can give a very brief, decisive reply to this question:

 

Policies related to employees’ personal social networking should be finalized with the input of legal counsel, who will help you consider the goals of the policy, to comply with the law. Once developed, such policies should be routinely assessed by your institution’s attorney.

 

That said, there are obviously many good reasons for a library to have a strong, distinct, and official presence on social networks—and the good news is that this can be accomplished by an approach that is more affirmative than proscriptive. The legal/operational tools of a strong social media presence are:

 

  • Well-established library trademarks (name and logo);

  • A domain name that matches the trademark name, if possible;

  • Consistent use of those marks for social media sites/posts;

  • An “official voice” (tone, style) for posts and content;

  • Selecting and updating the utility used (FB page, Twitter, etc.) to make sure the settings support the tone you want;

  • A consistent approach to hosting (or not allowing) community dialogue;

  • Well-established parameters, consistent with the library’s mission, for how and why the page is operated;

  • A person who has routine maintenance of the social media resources written into their job description or volunteer letter3 (and, if possible, at least one back-up person);

  • A strong internal policy, well-communicated to employees, that ties this all together. This policy should not reference personal social media.

 

By cultivating a strong social media presence, ancillary content by employees and volunteers, on their own personal pages, will be made less confusing. This is a tactic worth considering, because as shown above, restricting employees’ ability to discuss work via social media is fraught with legal risk.

 

The foresight and caution showed by this question is very wise, indeed!

1 NLRB Cases 16–CA–107721, 16–CA–120055, and 16–CA–120910 (July 15, 2016)

2 Hispanics United of Buffalo, Inc. and Carlos Ortiz. Case 03–CA–027872 (December 14, 2012). This case, a seminal decision in this line of case law, shows how these issues arise in day-to-day operations. It is written in plain language and is very instructive on this topic. The board decision can be found here.

 

3 If a volunteer does this, checking with your insurance carrier to make sure they are covered for the activity is a smart thing to do!

 

Topic: Fundraising 10/04/2017
A member asked if there are any legal issues to consider when using GoFundMe to fund-raise, especi...
Posted: Wednesday, October 4, 2017

MEMBER QUESTION

A member asked if there are any legal issues to consider when using GoFundMe to fund-raise, especially for association libraries.

WNYLRC ATTORNEY’S RESPONSE

The lawyer answers…

Fund-raising in the current climate (or any climate) is tough.  There are state and federal accounting rules, bylaws, “best practices,” and internal policies to abide by, while at the same time there is pressure to make sure the campaign is well-executed, fun, and most of all: productive. 

The various online options for fundraising enhance productivity.  Online fundraising can bring a new array of donors into the mix, can reinvigorate current benefactors, and can make giving as easy as sending a text message.  It is also becoming a necessity…for some (mostly under age 35) donors, not offering these options can mean your fund-raising effort doesn’t exist! 

What does a library have to coordinate when getting into the world of online fund-raising?  There are a host of legal issues.  Our member asked about GoFundMe, the current site du jour, so we’ll use that one.

First of all, for those libraries that are registered 501(c)3’s and charitable not-for-profit corporations, no matter where the fund-raising takes place, the solicitation, donor acknowledgement, accounting, and reporting are governed by the same rules as your “analog” fund-raising.  So, first, when evaluating whether or not to use a GoFundMe, make sure your treasurer and accountant are part of the set-up, and you check your policies, so internal awareness and regulatory compliance can be assured.

GoFundMe (and others) wants you to use their utility for your “Campaign” (as they call it in their “Terms” as of 10/23/2017) so they have thought about these things.  That said, there is a catch.  Here is how they support efforts by charitable entities:

Charitable Giving: Campaigns are not charities to which you can make tax-deductible charitable contributions. However, in addition to the Services described above, GoFundMe permits Donors to contribute directly to certain charitable organizations ("Charities") through the Platform. Any donation you make to a Charity through the Platform will be subject to a Services fee as described at http://www.gofundme.com/pricing. You understand and acknowledge, however, that GoFundMe is not a charity. If you or your charity would like to register to be listed as a charitable organization on the Platform, please contact us at support@gofundme.com and we can help facilitate that process. As used in this Agreement, the term "Campaign" does not refer to a Charity, and you acknowledge that contributions to Campaigns are not deductible under your jurisdiction’s applicable tax laws and regulations.

See what they do there?  They put the tax issue on your organization, while making sure they still get their fee!  --And considering that these fees can be almost 8% of the money donated, it can add up.

So, second, do the math: does the potentially broader audience and ease of donating warrant the payment of the fee?

That said, this is the USA and GoFundMe provides a service for this fee.  For smaller libraries without big advancement, marketing, and IT departments, sites like GoFundMe can provide an easy-to-use “front end” for your campaign.  You can tell your story, use their various resources for promoting the campaign, and get a polished-looking product entirely supported by the vendor’s structure.  Of course, the content in that “front end” still has to be supplied by you, and it should be coordinated with the library’s website and social media presence.

So, third, ask: does the library have the technical and outreach ability to make the best use of the utility?  If no one on staff is confident about gracefully integrating the link on the library’s website, and using social media outreach to drive donors to the site, other avenues might be a better use of resources.  In other words: for some places, online is the way to go, while for or others, up close and personal could still be a winning strategy (with no fee!).  This is a question only your internal team can answer.

And finally, does the type of library or archives you are affect this issue?  Absolutely, but there is no categorical rule on this. The minutia of a library’s bylaws, IRS status, policies, and the goals of the fundraiser govern the use of online fundraising. 

Generally speaking, if an institution can fundraise for something in the “real” world, they can do it online.  Just make sure your solicitations, accounting, and reporting follow the usual rules…something that starts (and ends) with making sure your team is in the know, has designed the campaign before it is launched, and has the capacity to solicit, acknowledge, account for, and report to donations as required.

As offline, so online!  Good luck.

Topic: Copyright – Using books on social media 9/19/2017
Can we film a story time done at the library using copyrighted books, and then either stream the e...
Posted: Tuesday, September 19, 2017

MEMBER QUESTION

Can we film a story time done at the library using copyrighted books, and then either stream the event live over Facebook for a one-time showing, or film and upload the story time to our library's YouTube channel? The purpose would be so that patrons who cannot come to the library will still be able to participate in story time and gain early literacy benefits.

WNYLRC ATTORNEY’S RESPONSE

This is a lovely idea, but any library considering something like this should get assurance that the work is in the public domain[1], or have permission from the authorized licensor (who is not always the copyright holder), before filming/streaming. 

This is because an audio recording[2] of a copyright-protected book is likely a “derivative work” (a work based on the original[3]) that, without permission, constitutes an infringement. 

A great example of a permitted derivative work is a commercially published audiobook.  Check out the credits on an audiobook listing—they generally recite two copyrights: the first for the original work (used with permission), and the second for the audio recording.  This is how the law both limits and promotes such recording.

A few other legal considerations approach this scenario, but don’t quite apply:

  • “Fair Use” would not apply, as the reading would likely use a large portion (if not the entirety) of the work, and the purpose is not transformative, nor for commentary/criticism. The fact that the transmission would be for a worthy goal, consistent with a library’s mission, is likely not enough to make the use Fair--even if the effect on the market would be insubstantial.
  • If the recordings were purely for ADA accessibility[4], there could be an argument, but such a project would need to be planned carefully, but that is not the purpose in the example.
  • The TEACH Act, which allow academics at TEACH-registered institutions to stream copyrighted content, but that only applies under very precise circumstances.[5]

That said, because a live reading could promote the works featured, I imagine there are publishers who would grant a limited license for such an endeavor.  However, depending on their contract with the author(s), a publisher might not be able to!  In any event, asking permission is a case-by-case exercise.

The good news is that the reading itself, at the physical location of the library, is allowed so long as it meets Section 110 (4)[6] of the Copyright Act (this probably isn’t news to most librarians). 

Very often, attorneys are perceived as throwing cold water on project like this, and hopefully this answer has shown why that is usually our only option.  That said, if there is ever a specific work a library wants to plan an event around (a specific book, etc), it is worth it to investigate the status and licensing posture of that work.  You never know what you’ll find when you check the status, or the ability to get permission, for a specific work.

I wish you all good reading.

 


[1] No longer protected by copyright…and for that matter, not affixed with a trademark the owner could claim you infringed.

[2] Because it technically “makes a copy” as it goes, streaming is often considered duplication.  If you ever feel like causing a healthy debate, ask three intellectual property attorneys and a U.S. Supreme Court Justice to comment on this line of case law.

[3] Per Section 101 of the Copyright Act: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. [Emphasis added.]

[4] Per Section 110 (8) of the Copyright Act.

[5]Those circumstances are listed in the ALA’s TEACH Act FAQ.

[6] Law linked here.

Topic: Skating the Line between Helpful Information and Legal Advice 9/19/2017
This answer was inspired by some recent questions… In the quest to give excellent service...
Posted: Tuesday, September 19, 2017

MEMBER QUESTION

This answer was inspired by some recent questions…

In the quest to give excellent service and maximum access, librarians must apply intellectual property guidelines--a skill the average person has not honed. Library users, observing this skill (or having been alerted to a copyright concern by a librarian), may then ask for legal advice. 

Here’s an example:

WNYLRC ATTORNEY’S RESPONSE

LIBRARIAN:  We have that copy Moulin Rouge you wanted!

PATRON:  Thank you!  I am planning to generate a version of it with my commentary over it. 

LIBRARIAN:  How interesting.  Are you planning to get permission, or claim Fair Use?

PATRON:  Um…?

LIBRARIAN:  Perhaps you would be interested in this book on copyright, too.   

It is professionally appropriate for librarians to promote awareness of copyright, trademark, and the other laws that govern the use of content.  But what can happen next can be risky:

PATRON:  Thank you for the copyright book!  I am pretty sure my use will be considered “Fair.”  What do you think?

LIBRARIAN:  I am so glad you found the book helpful.  As to any use of the DVD we provided…that is a question for your lawyer.

Unfortunately, the most attentive librarians are often the closest to this exposure, since they are the most dogged about providing access—exploring the furthest reaches of Fair Use and Section 108 to do it.  However, it also means that the pressure to go one step beyond, and advise the patron about what they intend to do with the materials, may be frequent.  When it occurs, librarians must emphasize the boundary between good service and legal advice.  Here is a formula for that:

I [the librarian] provide access to library materials based on the law and policy of my profession and institution; you [the user] should consult your own attorney regarding any legal concerns about your use of the materials being provided. 

In the event any of the service happens in writing, it is helpful to confirm this in writing.  This doesn’t have to read like an official “notice,” but can simply be a nice note:

Hi [NAME].  We were glad to help you find [RESOURCE].  As I mentioned, if you have legal concerns about the material you borrowed, you should consult an attorney.

By that way, I am not suggesting that every patron question needs a disclaimer! But for those areas where librarians are actively applying intellectual property law, or providing access to law-related resources, the boundaries of excellent service and legal advice can blur.  Users, who have a high-trust relationship with their librarians, might not appreciate that boundary. Tightening the focus and emphasizing it protects the patron, protects the institution, and protects the librarian.

Topic: Cookbook recipes as textbooks 8/29/2017
An instructor has loaded many scanned pages from a cookbook (possibly multiple cookbooks) into her...
Posted: Tuesday, September 5, 2017

MEMBER QUESTION

An instructor has loaded many scanned pages from a cookbook (possibly multiple cookbooks) into her class Blackboard page so that students do not have to purchase a textbook. In the samples I've received, I don't see any acknowledgements of the original author(s). Is this permissible? Thank you!

WNYLRC ATTORNEY’S RESPONSE

[Note:  The syllabus, which set out the basis for compiling recipes from a variety of regions and cooking styles, was also provided as part of this analysis.]

At first glance, this looks like a simple “Fair Use” question: is it okay, for use in a class, to copy and compile recipes from different sources and regions?  But this scenario is also a stealth “Section 102”[1] question: what exactly constitutes copyrightable subject matter?

We’ll take the “102 Question” first: is what the instructor duplicated entitled to copyright protection by a potential plaintiff? 

Answer: Since the duplicated materials are very simple recipes, without photos, lengthily narratives, or illustrations, probably not.  Per well-established case law[2], a plain, unadorned recipe, which is effectively a set of instructions with very little creative expression, is not sufficiently original to warrant copyright protection.[3]

We’ll take the Fair Use question next: if any of the recipes do have enough original expression to be protected by copyright (let’s say one has a cool picture of Jacques Pepin in the background), is copying them and compiling them together a Fair Use?

Librarians know, perhaps better than anyone, that Fair Use is a shifting exception to copyright infringement where the purpose, character, amount, and effect of the use all must be weighed to arrive at an answer.  In this case, with the recipes taken from a variety of sources, and arranged to support a compare-and-contrast cooking experience at a not-for-profit educational institution, if only very little from each original source was taken, there is a strong Fair Use argument to be made.  And of course, that argument would only need to be in defense of a claim based on content meeting the requirements of Section 102!

So, back to the original questions: is the posting permissible?  The answer is: most likely, yes!  However, the safest thing for the faculty member and the institution to do, going forward, would be to generate newly typed, bare-bones versions the recipes[4] (it’s one thing to know you’re right, it’s another to not get sued in the first place).  I would also advise they leave any maps, images, or other separately copyrightable materials that can easily be sued on, out, unless they have permission to use them.

And finally, regarding the issue of acknowledgment: unless the original author or publisher used a “Creative Commons” license allowing duplication with attribution, there is no need to attribute the source…if anything, attribution is helpful evidence for a plaintiff, and not particularly helpful to a defendant.  So there is most likely no benefit to crediting the source…although in academia, of course, citation is at the very least a professional courtesy, as well as a gateway to credibility.



[1] 17 U.S.C. Section 102 is the section of the Copyright Code that defines and lists copyrightable subject matter.

[2] Publications International, Limited, v. Meredith Corporation, U.S. Court of Appeals for the 7th Circuit…a case is worth reading both for its clear explanation of the idea/expression dichotomy, and for the Judge’s commentary on the yogurt-based recipes allegedly infringed by the defendant.

[3] This is why cookbooks often have photos, fun commentary, and a stylized way of giving instructions…the author and publisher are making sure they can protect the work.

[4] This is rather liberating advice to give.  In most cases, I can’t advise generating re-typing versions of a publication to avoid a claim of infringement.  But if you’re just listing “required ingredient and the directions for combining them to achieve final products,” (see the above-cited case) without taking someone’s original narrative, pictures, or other creative elements, and not copying their web site or other digital elements, you’re home free.

 

Topic: Coursepacks and Copyright 8/10/2017
I have had several requests by faculty to approve the coursepacks they have put together. All of t...
Posted: Thursday, August 10, 2017

MEMBER QUESTION

I have had several requests by faculty to approve the coursepacks they have put together. All of them contain articles from various journals; some contain book chapters (1 chapter or less than 10%) as well, and they are intended to be sold in the campus book store to recoup copying costs. The rationale given to me is that they can do this for the 20 or more students in their classes because it is educational use. I have repeatedly pointed out Federal rulings on coursepacks, the difference between a single copy and multiple copies, but am usually met with disbelief, consternation, and occasional comments as to my qualifications for my job. Therefore, in case I am indeed wrong in my thinking, I thought I'd ask your advice and your opinion regarding coursepacks.

WNYLRC ATTORNEY’S RESPONSE

You are not wrong in your thinking.  You are protecting your institution.   Further, by educating your faculty, you are helping them educate students.

That said, you are up against a tough issue.  It is one of the strongest copyright myths out there: the strident belief that if a copy is for educational and/or a not-for-profit use, it can’t be an infringement.[1]

Of course, all myths come from somewhere, and the origin of this one is easy to pinpoint: Fair Use—an exemption from infringement—considers educational and commercial factors. 

But librarians and other information professionals know that Fair Use involves additional factors, and requires case-by-case analysis.   To Illustrate this (and helping faculty), many larger higher education institutions maintain excellent, easy-to-use guides. 

Here are some of the better ones I couldn’t presume to improve upon:

NYU

Columbia

Stanford

Harvard

Given the wealth of excellent material out there already, I have nothing new to add, unless you would find posting this short, punchy bit of doggerel helpful:

When it comes to coursepacks, here’s the rule:

Copyright applies in school.

Sure, not-for-profit education

Can help a “Fair Use” designation,

But articles, books, and chapters used

Without a license can get us sued.

Ten percent is no sure guide…

Fair Use factors slip and slide!

So if the work’s not satirized,

Nor juxtaposed, nor criticized--

But copied just to help them learn--

Then I’m afraid we must be stern.

Don’t become some lawyer’s mission!

Let us help you get permission.

(After all…

If someone used your dissertation,

Perhaps you’d want some compensation?)

You have a license from me to post this, if it will help.  Sometimes a short couplet can succeed where charts and paragraphs fail (but maybe leave off that last part). 

I wish you a strong heart, and much support, as you protect and guide your institution.

Comments and shaky poetry © Stephanie Adams (2017)

https://creativecommons.org/licenses/by-nc-sa/4.0/

___________________________________

[1] This is unfortunate, because Fair Use does offer a great deal of protection to academia, as can be seen in the recent case https://www.copyright.gov/fair-use/summaries/cambridgeuniv-becker-11thcir2016.pdf.  But it is not a simple or over-arching protection!

 

Topic: Assisting Patrons with Altering Legal Documents Posted 8/10/2017
It has come up at our Reference meetings that patrons are using our technology to alter documents ...
Posted: Thursday, August 10, 2017

MEMBER QUESTION

It has come up at our Reference meetings that patrons are using our technology to alter documents such as doctor’s notes (extending days of medical excuse, for example) and our staff is increasingly uneasy about assisting patrons with this. We try our best to ignore what people have on the screen but sometimes they ask for our help with altering scanned documents, and it's impossible to pretend we don't see what they are doing. We are uncomfortable telling patrons we decline to help them based on ethical reasons, because that would show admitting we have read what is on the screen. We are somewhat concerned about liability and potential obligation to report illegal activity. What are some ways we can shield staff from having to help patrons commit fraud?

WNYLRC ATTORNEY’S RESPONSE

Wow.  There is really just no hum-drum day for librarians, is there?

Okay, let’s take this in stages.

First, the member’s question starts with the premise that the alteration of certain documents is illegal.  That premise is correct.   And although there are any number of crimes such alteration could be (depending on the type of document), here in New York, the catch-all term would be “Forgery.”  

Forgery[1] is a crime that comes in many degrees, but whatever degree, it involves the act of falsely making or altering a document (meaning the forger invented it wholly, or—as in the scenario—somehow manipulates or alters the original).  However, it is important to note that a critical element of Forgery, no matter what degree, is the intent to defraud, deceive, or cause injury.

Second, the member raises the concern that, if library staff assist a patron who turns out to be a forger, they could risk being implicated in the crime—or feel an obligation to report what they have seen.  While I found no case law addressing this precise scenario, these are valid concerns.   

We’ll start with some good news: for staff to be (legally) implicated, they would have to be aware of the forger’s criminal intent.  In other words, the staff would have to know that the person was planning to defraud, deceive, or cause injury; the mere suspicion would not make them part of a crime[2].  

That said, if the content visible on the screen makes it difficult to ignore a crime in progress (for instance, the manipulation of child pornography) or the possibility of imminent harm to another (someone changing the checkboxes on a Power of Attorney, for example), both library operational integrity, and staff well-being, may require removing personal service, removing privileges, and/or alerting law enforcement.

Unfortunately, after looking at case law, guides from the ALA, and numerous policies in the field, I could find no graceful way for staff to simply discontinue service, without telling a patron why.  Since staff assistance is in many ways as much of a right (once it is routinely provided) as access to your collection and technology, withholding it without a clear basis is a due process concern (for public libraries) and a professional ethics[3]/best practices concern (for private libraries).

That said, I can offer the following steps to making sure staff are ready to address this difficult situation: 

First, every employee and volunteer assisting patrons should have the phrase “service to patrons, in accordance with established policies and procedures” in their employee handbook, job description or volunteer letter (the wording doesn’t have to be precisely this, but the requirement of staff to follow library policies should be express).

Second, an institution providing access to “maker equipment” (computers, scanners, 3D printers, recording devices, tools, etc), should have a posted, public policy forbidding use of library equipment for illegal activity.  Something like:

 “Use of library equipment for illegal activity is forbidden. Examples of illegal activity include  but are not limited to: manipulating illegal content, engaging in forgery (falsely altering documents), gaining unauthorized access to other computers or networks, and 3D printing of illegal devices.  Staff assisting you, who suspect illegal activity, are authorized to discontinue assistance, and the library may discontinue your library access and contact law enforcement.  Patrons using technology to alter official or signed documents should be aware that such activity may be perceived as potentially in violation of this policy.”

As with any library policy impacting access and privileges (including staff assistance), such a policy should have an established procedure, and at least one level of appeal.[4]

Third, staff and volunteers should be trained[5] on how to withdraw service while honoring the rights of patrons.  A very simple policy (coordinated with current bylaws and other institutional policies before implementation[6]), such as the generic one below, could assist with balancing staff well-being with patron rights:

POLICY

It is the policy of the library that, to promote the integrity of operations, and the well-being of staff, use of library equipment and staff services in furtherance of illegal activity is forbidden.  

Staff concerned that a patron’s use of library technology may violate the law shall withdraw their services and/or patron access to the technology, per the below procedure.

In making this policy, the library re-affirms that unless authorized by law, patron records, including those generated by the use of technology, are confidential, and that users of the library technology have a right to privacy. 

In making this policy, the library re-affirms that all patrons are entitled to excellent service and access, and that such service and access shall not be removed without due process.

PROCEDURE

A staff member identifies a potential violation, withdraws from the patron, and consults a supervisor to confirm that withdrawing service and/or access is appropriate.

If the supervisor, upon further assessment, agrees that the use violates the policy, and that withdrawing service and/or access is appropriate, the supervisor will initiate the removal, and provide in writing to the patron:

On [DATE], your access to [/SERVICE/TECHNOLOGY] was removed, on the basis that the use was barred under our posted policy (copy enclosed).  This removal may be appealed by sending a letter of appeal to [PERSON], at [ADDRESS] by [DATE].   The library respects your privacy and does not require you to appeal or to provide any further information regarding this matter, unless you choose to do so.

If an appeal is filed, the [PERSON TO WHOM APPEAL IS DIRECTED] shall consult leadership and legal counsel as needed, and shall notify the patron, in writing, as to the result of the appeal within [#] business days.

If there is concern that IMMINENT HARM may be caused by patron use of technology, staff shall immediately alert XXXX, who shall determine if law enforcement must be called, or if there are any additional immediate action take, per governing procedures.

I am sorry to not have a more graceful solution, but I cannot advise that staff simply withdraw services and not return to the patron.  I have designed the above generic policy to provide a “uh-oh” moment for the patron, when they can remove themselves from a situation, and the supervisor can choose to not pursue the matter further.  This is a delicate dance on the tightropes of confidentiality and operational integrity.

Further, I have added the final clause in bold so the person in charge at the time is reminded to use the “buddy system” when it comes to making tough calls about safety, inferring criminal intent, and assessing imminent harm.  These are decisions that, whenever possible, should not be made in isolation. 

This balancing, giving a situation time to breath, and due process, are the best way to shield library staff while honoring library principles.  I hope you don’t have to use it too often!  But with more and more people relying on libraries for service beyond the traditional quest for information, I suspect more institutions will be addressing this issue.



[1] NY Penal Law 170.00

[2] Of course, a prosecutor can pursue criminal charges if they believe they can prove such awareness…and they can try and prove it by using knowledge of the content.  And for certain documents, merely altering them is a crime.  So erring on the side of caution is wise.

[3] At the heart of this question is staff who don’t want to be implicated in wrongdoing, but honor their professional ethics, including the obligations to:

 

·        Provide the highest level of service to all library users, and accurate, unbiased responses to all requests for assistance;

·        Distinguish between personal convictions and professional duties;

·        Strive for excellence via use of professional skills;

·        Protect each patron’s right to privacy and confidentiality;

  

[4] This is advised by the ALA at http://www.ala.org/advocacy/intfreedom/guidelinesforaccesspolicies, and of course is required for municipal institutions.

[5] As part of this training, staff should be alerted to the library’s policies about any signs of activity posing a risk of imminent harm (which may be a result of illegal activity).

[6] This coordination is critical.  Please don’t use any model language without considering your full suite of bylaws, manuals, policies, and procedures already in place.

 

Topic: Providing copies of newspaper puzzles for patrons 8/1/2017
MEMBER QUESTION Patrons have suggested we provide photocopies of the daily crossword puzzles out...
Posted: Tuesday, August 1, 2017

MEMBER QUESTION

MEMBER QUESTION

Patrons have suggested we provide photocopies of the daily crossword puzzles out of the newspaper because of other patrons doing the puzzle out of the library's current newspaper, thus ruining it for everyone else. We are told that some libraries provide this service, but we are concerned about the legality. Can you please advise us?

Topic: Providing copies of newspaper puzzles for patrons
Date Submitted: July 28, 20

WNYLRC ATTORNEY’S RESPONSE

WNYLRC ATTORNEY’S RESPONSE

I would say, “This is quite the puzzle,” but fortunately, Section 108 of the U.S. Copyright Code makes this an easily solved dilemma.

But first, I have to commend you for being cautious, since the situation is absolutely governed by copyright.  The puzzles, jumbles and other games in newspapers are what newspaper syndicates call “features.”  In a 1970 case[1], a "feature" was described as: “a literary or artistic creation prepared for publication in newspapers.” The court recited: “Comic strips are features; crossword puzzles are features; gossip columns are features; columns of information and opinion…are features [emphasis added].”  So in fact, your situation brings what we could call a “double copyright” concern: both the newspaper, and the crossword feature itself, can be infringed. 

However, per Section 108, your library is allowed to make one copy of a published article from a newspaper, so long as:

  • The copy becomes the property of the user, whose use is private and not for commercial gain;
  • There is a copyright notice on the copy (most crosswords already have this)
  • Your library has the required postings about duplication, and meets the usual Section 108 requirements (see   WNYLRC’s new  Section 108 Resources for a complete list).
  • Your staff does not become aware or have “substantial reason to believe” that it is “engaging in the related or concerted reproduction or distribution of multiple copies.”  (17 U.S.C. 108 (g)(1))[2]

How can this solution play out in a busy library? I advise making one copy as you describe, and making it available with a notice such as:

As a courtesy to fellow patrons, please let staff know if you would like a copy of the crossword.  The original version in the newspaper should not be written on.” 

Since Section 108[3] is the key to making the copy, and it requires that the copy be made for a patron, I advise against making several copies in advance.  However, to make sure the newspaper stays accessible throughout the day, making a temporary master copy to work from is okay….so long as those copies aren’t later compiled/used for something that goes beyond 108’s reach.

Hopefully, this will create satisfied crossword aficionados, serene newspaper readers, and peace in the periodical section!

[1] United States v. Chicago Tribune-New York News Syndicate, Inc.

[2] In other words…if it becomes clear that the local crossword club is using your library to make the copies for its annual competition, the copying is no longer allowed.

[3] It is worth noting that the Library of Congress considers crossword puzzles to be “games” that are to be registered as “textual works,” since Section 108 does not extend to pictorial or graphic works.

 

Topic: Email Retention 7/11/2017
We are looking to determine if there is a specific time frame for which email must be held. C...
Posted: Tuesday, July 11, 2017

MEMBER QUESTION

We are looking to determine if there is a specific time frame for which email must be held. Can we designate in a policy that email will not be considered original documents - that all original documents must be in print format?  AND if this is possible, how long then are we required to hold onto archived e-mail? 

Please also comment on how, for state institutions, this issue is impacted by the NYS Archives Schedule MI-1 Schedule, which states:

Generally, records transmitted through e-mail systems have the same retention periods as records in other formats that are related to the same program function or activity. E-mail records should be scheduled for disposition in conjunction with any other records related to the program function. Local governments may delete, purge, or destroy e-mail records provided that the records have been retained for the minimum retention established in this Schedule and are not being used for a legal action or audit.”

 

WNYLRC ATTORNEY’S RESPONSE

WNYLRC ATTORNEY’S RESPONSE

This has been a tough question to mull over!  That is because the answer is superficially “yes,” but in reality: “no.”

How do we get to this disjointed conclusion?  Schedule MI-1, as the member did, is a great place to start.

From there, although it is a bit older (in Internet years), the 2010 guidance from the New York State Archives, “Developing a Policy for Managing E-mail” (to which the Schedule MI-1 refers), speaks to this issue.  On page 7, it states:

“Another management strategy has been to rely on the “low­tech” method of printing out important emails to integrate them into a paper recordkeeping system. Printing emails is still a viable option for a small organization with limited technology support and finances, provided that individuals across the organization consistently apply records retention requirements to the printed emails, capture all essential metadata, and file the emails with their respective attachments.” [emphasis added]

This would suggest that, for certain institutions, under certain circumstances, e-mail does not need to be retained in its original form to be an “original document.”

However, while it would be elegant, I cannot endorse this approach.  As the guidance further states on page 13:

“The concept of “official copy” is problematic when dealing with email because of the volume of emails, the difficulty of controlling all copies, and the occasional need to prove an email was received as well as sent.” [emphasis added]

Since 2010, even more concerns make this a dubious solution. For a private institution, the requirements of accreditors, insurance carriers, and other stakeholders must be considered…while for libraries and archives that are part of local governments, per NYS regulation, the conversion of archival electronic records must be conducted in consultation with the State Archives, who may or may not endorse such a policy, based on the categories of documentation it would impact.

That said, for certain categories of documentation transmitted or received as e-mail (as defined by MI-1 or private policy), the “print approach” may work.  As a wholesale solution, however, it is not legally viable.

Topic: Copying VHS/Changing format/due diligence 6/29/2017
We have several VHS tapes that our anthropology professors use in the classroom. Our campus will b...
Posted: Thursday, June 29, 2017

MEMBER QUESTION

We have several VHS tapes that our anthropology professors use in the classroom. Our campus will be phasing out VHS as the players break down. We would like to send these to a vendor to create DVDs or digital files. We feel we have done the due diligence searching for a replacement. In most academic libraries media materials are purchased for distribution to the classroom for educational use. Making a copy would be of little benefit if use is not allowed in classroom, face to face instruction.

WNYLRC ATTORNEY’S RESPONSE

WNYLRC ATTORNEY’S RESPONSE

From: Stephan C. Adams

Date: June 27, 2017

This question starts with 17 USC 108(c), which allows for duplication of “obsolete,” formats, but limits the accessibility of digitized copies “to the premises” of the library. 

The inquiring library set out the other 108(c) factors: the obsolescence of VHS (manufacture stopped in 2016), the lack of commercially available copies, and the published nature of the work.  So as you say, what’s left to determine is:  Does the “premises” of a library in an educational institution include the whole campus?

“Premises” is not defined in the Copyright Code, nor is it commented on in the lawmaking notes (vis-à-vis this question).  I found no case law directly on point.  So we’ll go to the lawyer’s last resort: common sense.

Section 108’s bar on digitized preservation copies leaving the premises of the library is very rigid, and it is likely the boundaries of your library are, too.  If the library has a finite space that is reported in things like strategic plans, accreditation reports, and campus maps, then the “premises” would most likely be deemed to end at the door, not flow throughout the campus.  A quick search on this issue show this is the emerging consensus.  So yes, the DVD’s you make as a result of this format shift are, at first, trapped in your library[1].

This creates a ridiculous conundrum: you need to shift the format so the educational material may be accessed, now that the format is no longer supported.  But in transferring the information to a digital format, you are shackling it to the premises.  How can you provide access?


[1] The Section 110 exemption for “classroom use,” requires that the viewed copy be “lawfully made,” and your digital copy, to be “lawfully made,” must stay on site.  So I do not feel safe advising you to use that route…although it is uncharted territory.

 

You have two options:

First, it is important to remember that the shift of format does not necessarily change the license your institution purchased when it first acquired the VHS tapes.  This is a point strongly emphasized in both 108, and the lawmaker notes accompanying it.  If your institution had a license to use the copies for classroom room, directly from the owner/publisher, that license might survive the shift.  That could be determined from the purchase records or license text on the video itself.

Second, the Association of Research Libraries’ “Code of Best Practices in Fair Use for Academic and Research Libraries” was drafted, in part, to address this situation (see page 18).  In the Code, the ARL posits that when a preservation copy is made, further access can be granted under Fair Use.  This does come with limits however: “off-premises access to preservation copies circulated as substitutes for original copies should be limited to authenticated members of a library’s patron community, e.g., students, faculty, staff, affiliated scholars, and other accredited users.”  Further, the Code states that preservation and Fair Use copies should not be accessed simultaneously, and technology controls should be used both label the copy as required by 108, and to restrict further duplication.

This Fair Use solution to your problem has been adopted into the published policies of many institutions (here are a few examples[1]).   As there is no case law on point, I cannot say it is a slam-dunk defense, but I can say that if you adopt your own policy for carefully following this emerging standard practice, and then document that you follow it as you embark on this journey to ensure continued access to educational material you rightfully purchased, you will be in good company if content owners decide to sue for infringement, and recent case law about fair use will likely weigh in your favor.

There is a good deal of writing and advocacy on this issue, and hopefully in another few years, I will have a more definitive answer to give you!

 

Topic: Legal Request - 6/14/2017
A law practice in is litigating a case.  They have contacted us asking for all relevant mater...
Posted: Wednesday, June 14, 2017

MEMBER QUESTION

A law practice in is litigating a case.  They have contacted us asking for all relevant materials.

We have provided considerable materials from our records and archives, however, we have stopped short of providing a full digital copy of a book that might still be under copyright (based on publication date).

If they sent a representative to our archives, we would allow them access to the book.  They would be able to read it and even make their own copies of relevant sections.  I believe this is covered under the "fair use" provisions of the copyright law(?).

However, this is not the case, they want us to send them a full digital copy version of the book and I don't believe this is permissible under "fair use" or any other clause.  What is your understanding?

WNYLRC ATTORNEY’S RESPONSE

Aside from my general admiration of libraries, one of reasons I relish “Ask the Lawyer” is the chance to answer questions that might never otherwise come my way.  This question is one of those!

Could duplication of an entire copy of a work for use in a court case meet the requirements of Fair Use?

Case law says… yes, it could. In a 2003 case[1], a court found that duplicating an entire copy of a plaintiff’s autobiography, so it could be submitted as evidence of his bad character (he admitted to intentional homicide), was a Fair Use.   In 2014, it was found that duplication of extensive content from a blog, introduced as evidence of an alleged ethics violation, was Fair Use[2].  And back in 1982, bootleg copies of erotic films, created to bolster a nuisance claim, were also found to be “fair.”[3]

These cases, and others like them, draw from legislative history and precedent stating that the reproduction of copyright-protected works for litigation or other judicial proceedings


[1] Bond v. Blum, 317 F.3d 385 (4th Cir. 2003), cert. denied 540 U.S. 820

[2] Denison v. Larkin, 64 F. Supp. 3d (N.D. Ill. 2014)

[3] Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982)

often meets the “Fair Use” criteria.  So…the lawyers who have made this request of your archives, if they make this copy, should be able to defend their actions.

That said, Fair Use depends on the complex interaction of four separate “factors” which in this case will largely out of the library’s control.  What if the firm posts the content online?  What if it is used in PR material related to the case?  As a part of the chain of duplication, the library could then be implicated in an action based on a use not previously disclosed to them.

The right of libraries and archives to make whole copies, without worrying if the Fair Use criteria are met, is governed by Section 108 of the Copyright Code.  Section 108 provides a precise formula for making—and providing—one hard copy of a published work:

[T]hat the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

AND

[That] the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price;

AND

[That] the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research.*

Applying these criteria is tough.  While the advantage to be gained from the duplication is unlikely to be a direct “commercial advantage” (although perhaps there will be a commercial benefit to the court case), is the proposed use for litigation “private?”  Can it be determined if another, commercial copy is available? Further, the request that it be in digital format speaks to ease of further duplication, and this part of 108 is not about format-shifting.

The bottom line: unless you are satisfied that this “108 criteria” are met, since the Fair Use factors will be out of your archive’s control, the best bet is just what you suggest: let the attorneys make the copy themselves! 

*NOTE:  Different criteria would apply if this work was unpublished, or if the duplication was for preservation or ADA access purposes.

 

Topic: Dissertations - 6/13/2017
We’ve recently had some questions regarding the ability to provide access to dissertations, ...
Posted: Tuesday, June 13, 2017

MEMBER QUESTION

We’ve recently had some questions regarding the ability to provide access to dissertations, theses, and other cataloged graduate work.  How does the law govern these questions?

WNYLRC ATTORNEY’S RESPONSE

Many college and university libraries make it a practice to bind and inventory the academic work of their graduates—a tradition that showcases the achievements of the institution, maintains an important bond between the library and the faculty (who often sign the final copy, to signify approval), and allows graduates to cite and showcase their work.  These collections are often honored institutional assets: a neatly reproduced, annually increased, and routinely cataloged series of books occupying a special space in the library.

(When a graduate later becomes famous, they can also pose a persistent and annoying theft risk…but that is not the topic at hand!)

With the dawn of the digital age now at high noon, some college and university libraries are also including these home-grown works in home-grown databases.  This requires a digital infrastructure that not all academic libraries can afford or support, though, so for many, the old-school binding and shelving of graduate work is still the default practice.  Many institutions are now also considering whether or not to digitize their back catalog, and of course are also seeking ways to promote, provide and oversee appropriate patron access to what they have.  

Overall, these “old school” copies can pose an interesting access challenge.  They are generally listed in the library’s catalog, and considered a part of the active collection.  But what rights does the institution have to them?  How is access to them governed by copyright law, which often depends on the distinction between “published” and “unpublished?”  Can they circulate, be accessed via inter-library loan, be reproduced for archival purposes, or be digitized?  How much can the original author—now an alum—control them?

To answer this, I must use the phrase that is the lawyer’s most trusted companion: it depends.

We’ll take the relevant factors in order of appearance:

First, it is important to confirm: the work of a student, even if directed and overseen by a faculty member or faculty committee, is owned by that student.  Student-generated work*, even if the topic was suggested by someone else, and even if the content is vigorously critiqued by someone else (and then presumably re-written), is an “original work of authorship,” and the moment it is “fixed in a tangible medium of expression,” it is owned by the author (the author).   Of course, the student can sell the ownership, or donate it—but unless that transfer has been recorded in writing, it remains theirs…and then their heir’s…for the life of the author, plus 70 years.**

Second, generally, the permission to reproduce the academic work is a creature of a contract between the author (the student) and the institution (the college or university).  This permission can run the range from a completely unlimited license of all the rights of copyright (to reproduce, distribute, perform, display, create derivative works), to a very limited license (to make one hard copy and add it to the catalog).  This permission might be revocable, or irrevocable.  It might be exclusive, or non-exclusive.  It could even make use of Creative Commons licenses to create a very liberal mode of access.  Critically, though…these terms can vary from institution to institution, from year to year, from student to student.  There is no bright line rule.

Third, depending on the extent of the license, and other factors, the thesis or dissertation may, or may not, be “published,” as that term is defined under the Copyright Code. The ability to replicate, digitize, and create archive copies under Section 108 will be governed, in part, by publication status.  Section 108 is a great asset for libraries and archives, often allowing duplication of entire articles and works…but it requires the well-documented alignment of precise factors.  [NOTE: A copyright registration that included the date of publication would take care of this factor.  Some institutions and authors do register these works…and if they are put in the catalog for lending, registration should be effected before circulation begins, since to do otherwise could compromise the author’s rights]. 

Fourth, and finally, the policies of the college or university will govern access, too.  There could even be a day when an aged alum, having lost their treasured copy, may show up demand access to the library’s…only to be told that although they are without a doubt the copyright owner, they have to fill out a form, or renew their card, or wait until the Reference Librarian is back from break, so they can access their work. 

That said, they are the only one who might not have to do a 108 analysis before making a copy!

*Work that is actually co-authored by a faculty member and a student is subject to the rules of co-ownership.

**As you know, copyright duration varies.  A great breakdown of how to calculate duration is here: https://www.copyright.gov/circs/circ15a.pdf

Topic: Ownership of Employee Created Materials - 5/25/2017
At a recent WNYLRC webinar, we discussed the ownership of materials generated by library staff.&nb...
Posted: Thursday, May 25, 2017

MEMBER QUESTION

At a recent WNYLRC webinar, we discussed the ownership of materials generated by library staff.  Who owns the massive amount of original work generated by an active, engaged library staff?

WNYLRC ATTORNEY’S RESPONSE

The answer is: it depends. 

Let’s start with the fundamentals:

FIRST:  Copyright vests the moment an original work is fixed in a “tangible medium of expression.”  Trademark is established through either registration or use on the marketplace.  Patent can protect useful articles and unique business operations.  Trade secret law can protect confidential  information that gives your institution a unique edge.   What does this mean?  It means that the e-mails, presentations, displays, unique business solutions, archive collections and other valuable work-product generated by library staff are all assets that can be owned.

SECOND:  Unless there is a contract, policy, or other express documentation to the contrary, an employer owns the copyright to any work produced by an employee as part of the scope of their employment (this is one of the reasons why it is always important to ensure staff have updated job descriptions).  For trademark, patent, and trade secret, similar rules may apply.  Be warned…if not set out clearly, this “express documentation” can take many forms: it can be buried in a union contract, can be inferred from a hire letter, or might even be derived from a habitual business practice.  For both the library and its employees, there should be a clear policy.

THIRD:  Not only copyright, trademark, patent, and trade secret law governs the control of employee work-product.  The ethics of the profession may influence ownership.  If your library serves a particular industry, like education or healthcare, the work-product is controlled by privacy regulations.    It is important that the initial ownership arrangement between the library and its employees consider the other terms that may govern the work product, and it is critical that any policy reinforce the obligation to safeguard certain information. 

So how does a library set up to ensure it owns the valuable work product it pays its staff to produce, but doesn’t encroach on the employees’ right to generate their own intellectual property when not at work?  As more and more people “work from home,” use their own laptops, and may even compose work product on their cell phones, it couldn’t be more important to observe the following:

A carefully considered policy on employee work product.  This policy should be harmonized with the ethics and mission of the institution, its policy on employee use of technology, and its regulatory compliance obligations.  This does not have to be extensive; just a few clear, concise paragraphs in the Employee Handbook. 

Clear hire letters and routinely updated job descriptions.   Remember, in order to determine if something was created as part of an employee’s “scope of employment,” both parties need a clear notion of what that employment is!

Routine copyright, trademark, and patent registration of critical employee-generated IP. If your archives are known for a particularly good compilation of old photographs, for example, consider registration of the compilation with the Library of Congress (even if the images already have their own unique registration).  If you gave the compilation a unique name, consider trademarking it.  If your library developed a unique way to search the archive, explore a patent (before disclosing it to any other party!).

And if the asset is not only employer-owned, but critical, make the necessary archive and recovery copies, and make sure that back-up is controlled by the employer (locked cabinet, separate hard drive, employer-licensed cloud service). 

What can an employee or institution do if there is confusion regarding an employee-generated asset?  The best option is to promptly consult a lawyer.  Remember…what people do and say during the initial phase of a dispute can later become evidence, while timely input can hopefully avoid unnecessary debate, and find a “win-win.” That said, there is no replacement for clear hire terms, current policies, and routine IP asset management.  Staff and the great work they generate are critical assets of libraries and archives, so clarity is definitely worth the effort!

Topic: Copying of College Textbook Chapters - 5/1/2017
Our question concerns the copying of college textbook chapters for students where the required tex...
Posted: Monday, May 1, 2017

MEMBER QUESTION

Our question concerns the copying of college textbook chapters for students where the required textbook is either backordered by the bookstore day one of semester or where a late enrollees’ textbook is out of stock. 

One current solution involves a limited checkout of a text for the first four weeks of a semester, and only for library use for reading or photocopying. We keep a printout of the standard Copyright notice on the copier to warn against excessive copying. After four weeks, students must have access to the book on their own and textbook copies remain solely as desk copies for faculty. 

However, what is advised when multiple classes do not have textbooks in stock and late enrollees are more prevalent? What does copyright permit in terms of copying textbook chapters or providing e-links to textbook chapters on LMS (Blackboard, etc.) in such cases?

WNYLRC ATTORNEY’S RESPONSE

It’s 2017.  Digital access to academic resources having been a factor in academic life for over 20 years, it would be reasonable to think I would have clear, well-established guidance to give you.

However, as of 2016, the United States was still struggling with Fair Use, and the law doesn’t give us the bright-line rules we are hoping for.   Rather, particularly with regard to textbooks and digital access, recent case law has diminished them.

Very comparable to the circumstances you described is the case Cambridge University Press v. Mark P. Becker No. 1:08-cv-01425-ODE (N.D. Ga. Mar. 31, 2016).  In Cambridge, a court in Georgia, after trying to use a simpler, equally weighted Fair Use analysis, and relying on the ill-fated “10% standard” of duplication, ruled that when creating digital copies/excerpts of textbooks:

(1) the first factor, purpose and character of the use, weighs in favor of fair use because [a university] is a nonprofit educational institution;

(2) the second factor, the nature of the work, is “of comparatively little weight…particularly because the works at issue are neither fictional nor unpublished;”

(3) the third factor, the amount of work used, must be viewed through the lens of “the impact of market substitution as recognized under factor four, in determining whether the quantity and substantiality . . .of [d]efendants’ unlicensed copying was excessive;” and

(4) the fourth factor, the effect of the use on the potential market for the work, “concern[ed] not the market for Plaintiffs’ original works . . . but rather a market for licenses.”

This case shows that a when it comes to textbooks, while courts will give strong deference to educational institutions, there is no “magic formula” (like 10% of the content) they will apply to ensure Fair Use.  Rather, courts will apply a nuanced analysis that changes from work to work, and from use to use—making general guidance a challenge.

With all that in mind, my answer to the inquiry is:

First, the ability of the student/patron to physically access or check out the book is a great service by your library; with the required copyright notices posted, and no attempt by the library to collude with students in making prohibited copies, you are taking good advantage of section 108’s exemptions of libraries from liability for infringement.  In addition, providing access to textbooks within the structure outlined above is a great incentive for students to visit the library.

Second, your actual question—can my library use digital access to help students who were late registrants or otherwise unable to secure a physical or full digital copy?—requires application of the Fair Use factors on a work-by-work basis, which as we can see, is an increasingly intricate and fact-specific exercise.   You must apply the four factors not just on a work-by-work basis, but while considering the specific purpose of a particular use.

There are also some practical tips that can help you avoid being sued for infringement.

Tip #1: To answer questions like this, I always put myself in the shoes of the potential plaintiff.

· If I were the publisher, would I view the digitized access as cutting into my potential revenues? 

· Is there an easily obtainable license for the excerpt, that the library is just choosing to ignore?

· Can I, as the publisher, easily put a price on the damages? 

All these factors, if the answer is “yes,” can lead to the publisher instructing their lawyer to file suit. 

However, even if all of these are true, I, the publisher, would also ask…did every person who accessed the digital copy already have a copy on back-order (and not return it)?   If they bought my book, and were only using the digitization as a place-holder, I, the publisher, would tell my lawyer to look elsewhere for damages…especially since when I, the publisher lose, I am responsible for the legal fees of the other party (in the Cambridge case, the publisher was told to pay the fees of the university).

Tip #2: It is unfortunate that, like the courts, I can’t give a simple formula for Fair Use.  However, one way you can sometimes get a bit of “free” advice on this is to consult with your institution’s insurance carrier.  It is very likely your institution is insured for copyright infringement, and that they have a list of best practices they would like to ensure you, the insured, are following.  As a professional within the library, it is good to also confirm that this coverage will cover not only the institution, but you as an employee.  That can help you sleep at night.

Tip #3: And finally, if ever an entity notifies you that they are suing you for infringement, notify your insurance carrier right away.  Often times, they can provide counsel, and help you reach a quick, low-stress resolution.

Topic: Sharing Articles - 3/29/2017
I encountered a situation in which a patron wanted to share an article that I sent to [a not-for-p...
Posted: Wednesday, March 29, 2017

MEMBER QUESTION

I encountered a situation in which a patron wanted to share an article that I sent to [a not-for-profit organization’s] educational portal. As it happened, she had a very specific intended audience…which I thought fell within the "Fair Use" doctrine as, in addition to the information being educational, it was to be shared with [only] a small group.

However, it made me wonder how to approach a situation in which intellectual property was to be shared on such an electronic educational forum for the entire [not-for-profit] staff to sign off on having read. Would sharing with all [not-for-profit] staff for educational purposes be acceptable? 

WNYLRC ATTORNEY’S RESPONSE

This is a great question, as it occupies the crossroads of the specific exceptions for libraries and archives in the copyright code, the elements of fair use, and an essential aspect of a library’s mission: dissemination of information. So, I am a bit sorry to say the answer is most likely: NO.

That said, there is a “YES” along the way, and with careful analysis, the two answers can be kept separate.

How is that?  First, you have to see the query as not one question, but two.
 

  •  FIRST QUESTION:  Is a library allowed to provide a copy of an article to a patron? 
     
     ANSWER:  YES. With careful attention to the factors that apply only to libraries and archives (Section 108 of the  Copyright Code), a copy of the article can be provided.
     
  •  SECOND QUESTION: Is it a fair use for the patron to then distribute a digital copy via an access-restricted portal?

    ANSWER:  NO.  Even when the user is a not-for-profit trying to stretch budget dollars and educate its workforce, when a patron is essentially trying to provide broad access but circumvent a licensing fee,* the elements of fair use are not met.

 

LIBRARY COPIES V. FAIR USE

Part of this analysis depends on appreciating the subtle differences between Section 108 (exceptions for libraries and archives), and Section 107 (fair use).

Here is the formula for a library to provide an authorized copy of an article under Section 108:

  • The copy must become the property of the user;
  • The library or archives has had no notice that the copy would be used for any purpose other than private study, scholarship, or research; and
  •  The library or archives displays a warning of copyright as required by law.

Here are the factors used to analyze fair use under Section 107:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work.

Note the difference between Section 108’s simpler, formulaic elements (providing a bright-line rule for providing an authorized library copy), versus the complex, inter-connected fair use factors (which most will agree provide anything but a bright line). Commentary on the Copyright Code shows this is a deliberate difference, and the effect is a positive one for libraries: whether or not subsequent patron duplication of a “Section 108 copy” meets the elements of fair use, a section 108 copy is authorized so long as Section 108’s much simpler elements are met.

A library’s provision of an authorized copy does NOT depend on the patron’s subsequent fair use.  Section 108’s provisions stand alone, and on much easier-to-analyze ground.  However, absolutely key to Section 108 is the library’s lack of notice regarding a patron’s intent to use the copy for anything more than private study/scholarship.  

If, during the consultation, the patron discloses intent to use the copy to create their own mass distribution, the use will not qualify under Section 108, and infringement could be found. Just as critically, providing a copy once the library was aware of a further intent to copy could also run afoul of the fourth commitment in the Code of Ethics of the American Library Association: “We respect intellectual property rights and advocate balance between the interests of information users and rights holders.”

Because of this “notice factor,” Section 108 might be easier in theory than it is in practice. Patrons seeking information often use librarians as co-strategists in whatever project they are working on.**  During such quests, a librarian’s awareness of the full extent of patron needs can be helpful, so there is often a discussion of not only what is sought, but why. This type of discussion may lead to better service, but if it leads to notice of a patron’s intent to put an article on an intranet or portal, the librarian can be put in a legally and ethically awkward position. 

So…you are right to be cautious! Thank you for a great question.

*If the article isn’t commercially available, or the article is being parodied or provided as an example of “what not to do”--basically anything other than its simple face value as an educational tool--the fair use analysis would be different. But we’d need the precise factors from the patron.

**There is one other complication worth mentioning on this FAQ forum. For academic or other libraries operating within a larger institution, if the requesting party is simply another part of your organization, Section 108 is more difficult to credibly apply, so caution is needed. 

Topic: Microfilming current newspaper - 2/6/2017
Our local newspaper of record used to microfilm itself (using a third party vendor) for their own ...
Posted: Monday, February 6, 2017

MEMBER QUESTION

Our local newspaper of record used to microfilm itself (using a third party vendor) for their own use in their private archives.  I’m not sure what terms they had with the microfilm vendor, but it was relatively inexpensive for the public library to purchase a copy from the microfilming company for daily use.  The newspaper has come under new ownership and longer microfilms itself.  My first question is whether I understand 17 U.S.C. §108 correctly. Does paragraph A give libraries the right to make 1 analog copy of pretty much anything they own? Or, in this case, to microfilm the newspapers we have on hand? And does paragraph C give us the right to make up to 3 more microfilm copies, for preservation purposes? It would be our position that newsprint is always deteriorating (we have no climate control storage space to preserve a long run; people steal issues and cut out articles) and after “a reasonable effort” there will be nowhere else from where we can buy a pristine back run “at a fair price”…. Must we enter negotiations with the publisher to secure the right?

WNYLRC ATTORNEY’S RESPONSE

A community library’s role in archiving and creating access to local news is critical, but changing technology, uncertainly of ownership, and costs can make the legal aspects of the process uncertain.  The member’s questions, set out below, are on the forefront of this issue: how do libraries position themselves to preserve and provide access to published local news?  
 
Section 108 of the Copyright Code was created to balance the rights of copyright owners with the access and preservation of their works, including newspapers.  It allows for the copying of sections, whole works—and in some cases, the creation of multiple copies of whole works—by libraries and archives.  The first question from our member sets the stage for this issue:  
 
Does Section 108, sub-section (a) give libraries the right to make 1 analog copy of pretty much anything they own?
 
The answer is to this opening question is: No…Section 108’s application is broad, but it might not apply to your whole collection.  The final paragraph (sub-section “i”) of the law contains some big exceptions: musical works, pictorial, graphic, or sculptural works, or films/AV works (excluding news).   So, while there are certainly limitations to these limitations (mostly for ADA access, as provided for in other parts fo the law), sub-section (i) means that not “all” parts of a collection may be fully copied.  
 
That being said, exclusive of the exceptions in sub-section (i), under Section 108 (a), ONE copy can be made, so long as the library is open to the public, the copy is not made for commercial gain, and the copyright to the work is attributed—along with a notice that the copy was made per section 108.  This is a critical protection for libraries, library staff, and patrons.  However, the duplication it allows is balanced with the rights of copyright holders…and a careful read shows it was also drafted by congress to support certain actions in the “market place” (i.e. commercial archiving).  This takes us to the next 2 questions.
 
 
[Can we] microfilm the newspapers we have on hand?
 
Answer: Yes.  The creation of one copy of a published newspaper falls squarely under sub-section (a).  
 
And does sub-section (c) give us the right to make up to 3 more (microfilm) copies, for preservation purposes?
 
Sub-section (c) is the section that allows for multiple copies to be made under certain circumstances.  Applying the criteria of the sub-section,  I regret to say the answer to this is “no.”  
 
Rights under sub-section (c) only apply if the original (or copy of the original) is “damaged, deteriorating, lost, or stolen…”—or if they are embodied on an obsolete format, and that after a reasonable effort, an unused replacement can’t be purchased [a format is “obsolete” “if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.”].  This formula is not a good fit with a recently published work.
 
However, in raising the question, the member raised an interesting and practical argument:  It would be our position that newsprint is always deteriorating (we have no climate control storage space to preserve a long run; people steal issues and cut out articles, etc.) and "after a reasonable effort" there will be nowhere else from where we can buy a pristine back run "at a fair price" (ie. for less than the price of striking another microfilm).
 
For a question like this, it is best to go straight to the source: the Library of Congress circulars.  The Circular on section 108 can be found here:  https://www.copyright.gov/circs/circ21.pdf
 
In relevant part, it states:
 
Subsection (c) authorizes the reproduction of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price. The scope and nature of a reasonable investigation to determine that an unused replacement cannot be obtained will vary according to the circumstances of a particular situation. It will always require recourse to commonly-known trade sources in the United States, and in the normal situation also to the publisher or other copyright owner (if such owner can be located at the address listed in the copyright registration), or an authorized reproducing service.

[Emphasis added.] 
 
As can be seen, the delicate nature of newspapers and library capacity issues non-withstanding, proceeding under sub-section (c) without certainly that there is no commercial alternative does not meet the sub-sections’ requirements.  The law is clear: the copies can be made only after the good-faith determination that no commercial alternative exists.  
 
It is cumbersome, but saving a copy of the paper, and then establishing, on a routine basis, that back copies, digital archives, and third-party microfilm versions of the newspaper are not commercially available, meet sub-section (c)’s commercial determination requirements. This is an essential element of the law and cannot be left out, or there will be no infringement defense under sub-section (c).  
 
The final question brings this all home: We really just want to start microfilming 2 copies of the paper…. Can we? Or must we enter negotiations with the publisher to secure the right?
 
Neither sub-section (a) nor (c) require permission from the copyright holder, so libraries do not need to ask the new owner before using the 108 exceptions as set forth above.   However, as the question implies, a library seeking to go beyond what is authorized by the law would need to work with the rights holder.  Hopefully, the publisher can see the value in allowing the two copies to be created, and will agree to an irrevocable license to the library, for the benefit of its patrons.
 
Topic: Showing Performance Video to a Sanctioned College Club - 11/8/2016
The question relates to showing a performance video to a sanctioned college club. I understand tha...
Posted: Tuesday, November 8, 2016

MEMBER QUESTION

The question relates to showing a performance video to a sanctioned college club. I understand that as long as the college's library owns the DVD or streaming rights, the movie can be shown in its entirety for educational purposes in a classroom to registered members of the institution. Does the same hold true for showing the same movie to clubs on campus as long as the event is restricted to college members? This second question is related to the movie presentation but is concerned with publicity. Can the cover image be copied and inserted into the event posters and on the college's website? The web announcement would be removed immediately after the event.

WNYLRC ATTORNEY’S RESPONSE

First question
As you say, a college can show a movie they own, without further licensing, so long as: 

  • The institution is a not-for-profit
  • The performance of the film is in connection with face-to-face teaching activities, in a classroom or similar place of instruction.
  • The copy was legitimately acquired

This is a broad exemption, but it absolutely does not apply to non-instructional, non-classroom showing of movies by student clubs.  Such a showing would require express permission via license.

Of course, if a student club has an academic focus (for instance, Spanish Club) and the film is to be part of an academic experience (for instance, watching the movie in Spanish, to enhance learning), in an academic setting (class room, with a qualified academic instructor) one could argue that the required elements are still met. But the educational purpose must be bona fide…no watching “Deadpool” for entertainment and then having a half-hearted, academically disconnected discussion on modern comic book tropes.  And of course under no circumstances should money be charged.

Second question
The second question is very simple: the cover images of most commercial films are subject to copyright.  Because of that, and because there is no exemption allowing them to be duplicated, unless permission is obtained, the college is well-advised not to allow copies to be displayed to promote the event, and especially should not allow that image to be published on the college website. 

Keeping it off the website is critical.  Even smaller rights holders police the internet for images they own, and insurance companies, facing mandatory statutory damages and attorneys’ fees, will quickly settle claims…something that will eventually lead to higher insurance premiums for your institution.

The best way to promote the licensed showing is to either use the approved promotional material that comes with the license, or generate a version that does not infringe on the content of the original (or the film).

Topic: Photocopying Music Scores - 11/08/2016
We have a request from a patron from another state for scans or photocopies of music scores that w...
Posted: Tuesday, November 8, 2016

MEMBER QUESTION

We have a request from a patron from another state for scans or photocopies of music scores that we own and that are still under copyright. They are rare and only a few libraries have them across the country. The patron does not intend to perform the music, only to study the scores. Is it fair use to copy or scan them for the patron who is writing a doctoral thesis?

WNYLRC ATTORNEY’S RESPONSE

Short answer: The proposed copying would not be a permitted, duplication or Fair Use without some additional steps consistent with the four Fair Use factors.

Long answer: This is a great question, as it marries the practical consideration of access with the scary question of a liability for infringement.  To answer it, there are a few initial points of priority….

First, it is critical to note that Section 108 (a) of the Copyright Act, which would normally allow for one copy of a work to be provided to fulfill this request, expressly excludes musical works (see Section 108 (i)).

Second:  Because of the Section 108 (a) exclusion, it is important to distinguish: while the patron may have a Fair Use defense if they duplicate the work for the purposes of scholarship, the library, in simply making the copy to provide easier access to a remote patron, might not.  

Third, as plaintiffs can sue “innocent infringers,” careful steps should be taken to ensure the library could not be viewed as a part of the chain of infringement, if the patron ends up not having a valid Fair Use defense for any copy or derivative work they generate.

Fourth, while this scenario does not state the original copy requires archiving, it sounds as if you have a rare and precious copy, so we’ll draw a bit from the law, case law and guidance covering the protection of deteriorating/rare documents.

And now…how do you enable the proposed access, but keep the library safe?   By ensuring 108(c) and the “Fair Use” factors are on your side, whether you send them a scanned copy, or loan a physical copy.   

Digital copy
Informed by the latest case law and guidance, the following steps could help claim Fair Use for providing the proposed copy digitally:

Step 1: As the Code of Best Practices for Fair Use in Academic and Research Libraries (www.arl.org/focus-areas/copyright-ip/fair-use/code-of-best-practices) puts it: “Providing [digital] access to published works that are available in unused copies on the commercial market at reasonable prices should be undertaken only with careful consideration, if at all.”  It is essential to verify that the works, or a licensed copy, are not commercially available.  This is essential for 108(c), too.

Step 2:  It is best if the transformation of format is not an ad hoc effort, but rather is part of an effort to promote a special resource of your library.   Making the digital copy a part of “special collection”—for instance, of rare music scores—will give you a stronger Fair Use defense.

Step 3: Again from the Code: “The Fair Use case will be stronger when the availability of the material is appropriately publicized to scholars in the field and other persons likely to be especially interested.”  In other words, once you have the collection digitized, don’t let it be just that ad hoc project—promote it.

Step 4: Use appropriate technological controls (digital watermarks, etc.) to restrict the access, limit duplication, and ensure proper attribution of materials in the collection.  That way, any eventual copying or derivative work generated by the patron is separate and distinct from the access provided by the library.

Step 5: As with any digital collection, make sure the library has an easily found way for people to register privacy or intellectual property concerns related to digital collections.

Physical copy
What if you just want to provide them with a physical copy?  Following Section 108(c)’s rules for duplicating deteriorating copies, you can generate a copy for preservation purposes, loaning it to them with the expectation that it will be returned.  Just take care that the work is not commercially available, and that the original copy is not available while the preservation copy is out on loan.

[NOTE: 108(c) bars a digital copy made on this basis from leaving your institution.]  

Overall 
The bar on Section 108 (a) applying to musical works makes this a bit more challenging than the usual duplication request, but with some care, access can be provided.

Further, if the patron wants to make a copy of what your library loans them (either digitally, or in hard copy), if their use is as you describe, they may have their own Fair Use defense.  This will mean both the library and the patron can stand on separate, but solid, copyright ground. 

Topic: Reformatting VHS - 10/17/2016
We are shifting away from VHS here on this campus (along with everywhere else), and have a questio...
Posted: Monday, October 17, 2016

MEMBER QUESTION

We are shifting away from VHS here on this campus (along with everywhere else), and have a question from an instructor about transferring a VHS tape to DVD. She's not able to get the tape on DVD or streaming, but knows that it's under copyright. Are there any loopholes to allow for making a digital backup of a VHS tape because VHS is an obsolete medium? Does going through a good-faith effort to find a digital version give some protection or leniency? Should we encourage the instructor to contact PBS or the show's producers to obtain copyright clearance for making a digital copy?

WNYLRC ATTORNEY’S RESPONSE

We’ll start out with the best advice: unless you stand on the legal high ground of a disability accommodation or a crumbling single copy unavailable in the original medium, when it comes to creating a new format of a work, written permission from the copyright owner is always best.  That is the gold standard.  If you have permission, the blood, sweat, and tears (or stress, more likely) of a Fair Use analysis are not needed.

This scenario does not occupy any legal high ground.  For a library in this position—dealing with the increasing rarity of VHS players—there is great guidance out there from the Association of Research Libraries’ “Code of Best Practices in Fair Use” (http://www.arl.org/storage/documents/publications/code-of-best-practices-fair-use.pdf): Here is what the code has to say on this issue…

Even when libraries retain the originals of preserved items, digital surrogates can spare the original items the wear and tear that access necessarily inflicts. Section 108 of the Copyright Act authorizes some preservation activities, but does not address some of today’s most pressing needs…[including] the transfer to new formats of materials whose original formats (such as VHS magnetic tape) are not yet obsolete (as the term is narrowly defined in section 108(c)) but have become increasingly difficult for contemporary users to consult.

Case law also acknowledges this VHS problem, but gives no relief: “Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.” (University Studios et al v. Corley, U.S. Court of Appeal 2nd Circuit, 2001).  This case is 15 years old, which means a lot has happened in the world of technology, but is still good law.

So the answer is, for now, unless you are making a disability accommodation, or faced with a crumbling copy, there is no iron-clad loophole or clear precedent to allow the proposed conversion to be a “fair use.” 

That said, if you have a deteriorating copy, a good-faith effort to re-purchase it in the original medium will certainly contribute to a fair use defense if you duplicate it to preserve this resource.

To help both you and your institution show that you have gone through this exercise, when you address such questions, I advise that you compose short emails to yourself, documenting the question, process, and conclusion.  A simple:

“Instructor stopped by today and asked if we could convert VHS in the collection to DVD for ease of access.   I let her know we’ll try to purchase a copy on DVD or seek permission of the copyright holder to make a copy on DVD.” 

 OR

 “Instructor stopped by today and asked if we could convert VHS to a format that would allow Deaf student to view closed-captioned version; we are arranging conversion solely to allow reasonable accommodation under the ADA.”

 OR

“Instructor pointed out that VHS tape in collection was not working right.  [Co-worker] and I verified the condition.   As best practices state it is fair use to make digital copies of collection items that are likely to deteriorate, or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials, the library will create a back-up copy, UNLESS a fully equivalent digital copy is commercially available at a reasonable cost.  We will of course not provide access to or circulate original and preservation copies simultaneously.”

This July, various news outlets reported that the world’s last manufacturer of VCR’s has cease production.  Please check back on this issue; we’ll update this entry in the FAQ when we have better guidance, which should be coming soon.  Congress is working on new guidelines, and was recently told by the Register of Copyrights, Susan Pallante: “In its current state, Section 108 is replete with references to analog works and fails to address the ways in which libraries really function in the digital era, including the copies they must make to properly preserve a work and the manner in which they share or seek to share works with other libraries.”

 http://www.copyright.gov/laws/testimonies/042915-testimony-pallante.pdf

 

Topic: Digitization of Newspapers Prior to 1923 - 10/17/2016
We would like to digitize newspapers that were published prior to 1923. Since the paper is still i...
Posted: Monday, October 17, 2016

MEMBER QUESTION

We would like to digitize newspapers that were published prior to 1923. Since the paper is still in business, does public domain apply in this case? They are very difficult to deal with. We do have a contact there. However, if there is nothing stopping us from digitizing the older issues, we prefer not to deal with them. Would this also apply to other newspapers who are still publishing today but whose content does exist prior to 1923.

WNYLRC ATTORNEY’S RESPONSE

You have confirmed that the “Buffalo Evening News” (and other iterations) content originates BEFORE the strategic “1923” date confirmed by the Copyright Office (Circular 15a) as in the public domain.  This is true whether the original article or image was owned by the paper, or licensed by the paper and owned by another person or entity.

 Once an item is in the public domain, there are numerous ways for either the original owner, or another, to create a copyright in a new medium re-presenting the content (this is a motivating factor in many “special editions”), but the original is no longer protected, and may be digitized as you describe, without concern about an successful infringement claim.

One caveat on the “Buffalo News” content: there could be a concern as you promote the newly created resource.  “The Buffalo News” is a trademark owned by (interestingly) The Columbia Insurance Co. (registration # 75834888).  So while you can list the resource, I advise against using the name “The Buffalo News” in any promotion of the collection.  That is for optimal safety and so you don’t get a cease-and-desist.

The good news is that the “Buffalo Evening News” trademark is officially “dead”  (see attached screenshot).  This may be used to promote the service, should you wish to do so.

This analysis and a similar caveat would apply to any other newspaper.

  buffalonews_2

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.