RAQs: Recently Asked Questions

Topic: Requirements for public access to SUNY libraries - 7/27/2020
[Submitted from a SUNY Library] (1) What are the requirements for a SUNY library to provide acce...
Posted: Monday, July 27, 2020 Permalink

MEMBER QUESTION

[Submitted from a SUNY Library]

(1) What are the requirements for a SUNY library to provide access to the general non-campus community/public (those outside staff, faculty, students)?
(2) Are their specific requirements/repercussions academic libraries should be aware of in regards to public access or prohibiting public access?
(3) What are the Section 108 repercussions for not allowing public access, specifically related to the pandemic? Would libraries still be protected if they provide public 'access by appointment' only? Would "temporary" non-public access still allow for application of the 108 exceptions?
(4) Can a SUNY library deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety?

WNYLRC ATTORNEY'S RESPONSE

This is a deep array of questions, requiring a deep array of answers.

But let’s start with the basics.

There are 64 SUNY campuses, some with more than one library.

What’s cool about these libraries?  They aren’t just collections of books on a campus, but distinct entities within their institutions, governed by the body of laws that apply to all libraries in New York, as well as the law that is SUNY-library specific.

The “SUNY-library specific” law is Education Law 249-a, which states:

The state university trustees and the board of higher education of the city of New York are hereby authorized to establish such rules and regulations as may be necessary and appropriate to make provision for access and use by the residents of the state of the libraries and library facilities of the public institutions of higher education under their respective jurisdictions.

In other words: SUNY and CUNY have libraries, and the boards of SUNY and CUNY can set those libraries’ rules, including the rules governing access.

SUNY’s[1]  board has established “such rules” by, among other things, adopting a policy on “Public Access to SUNY Libraries[2]  which states:

It is the policy of the State University of New York (University) that the public is given access to University libraries insofar as possible. Since implementation of this policy has fiscal and administrative implications, campuses may extend the facilities of their libraries to the public whenever it can be done and in a manner that is both fiscally sound and consistent with their primary educational mission.

 

What does this mean for public access to those libraries?

State law gives SUNY broad authority “to establish such rules…for access and use by the residents of the state.” SUNY then uses that authority to develop a policy requiring “that the public is given access to University libraries insofar as possible.”  BUT, after asserting that broad goal, SUNY allows individual campuses to tailor that access based on the “fiscal” and “administrative” considerations of individual institutions.  So while access to the public is the stated goal, the conditions for access are really up to the individual libraries (and the academic leadership they report to).

I tooled around a few SUNY library web sites (I couldn’t resist the Charles B. Sears Law Library at SUNY Buffalo, my alma mater), and each have their own unique conditions for giving the public access.  Some make it easier to find that information than others.  I saw a range of conditions for access…anecdotal evidence that the libraries are using the latitude granted to them by SUNY policy.

And with that background established, I’ll answer the questions.

(1) What are the requirements for a SUNY library to provide access to the general non-campus community/public (those outside staff, faculty, students)?

While the law only goes so far as to “authorize” SUNY to provide for public access, SUNY-wide policy is that “the public is given access to University libraries insofar as possible… whenever it can be done and in a manner that is both fiscally sound and consistent with their primary educational mission.”

So my answer to the first question is: based on SUNY policy, public access to a SUNY library must be provided insofar as possible, provided the use by the public doesn’t interfere with the use of the students and faculty, and the burden of public use doesn’t throw off the budget.[3]

(2) Are there specific requirements/repercussions academic libraries should be aware of in regards to public access or prohibiting public access?

Absolutely, there are requirements and potential repercussions for access to libraries at state institutions.  I could write an entire book on them (and I bet someone has[4]), but here is my quick summary:

  • Requirement: develop budgets, staffing plans, and operational policies that ensure the public is given access to University libraries “insofar as possible.”
  • Requirement: in coordination with Campus Safety or Campus Police, develop a process to address the most serious public patron behavioral concerns. 
  • Requirement: develop a privacy policy regarding the rights students, employees, and public patrons have under CPLR 4509.
  • Repercussion: be ready to address civil rights concerns related to the library’s status as a public institution.

(3) What are the Section 108 repercussions for not allowing public access, specifically related to the pandemic? Would libraries still be protected if they provide public 'access by appointment' only? Would "temporary" non-public access still allow for application of the 108 exceptions?

For readers not familiar with it, “Section 108” is the portion of the Copyright Act, which gives special exemptions from infringement to libraries and archives that are open to the public.

Section 108 does not go into great lengths regarding what the requirement “open to the public” means, but some insight can be gained from how it handles access to special collections closed to the general public; such collections qualify for Section 108’s protection so long as they are open “to other persons doing research in [that] specialized field.”  So it is clear that “open to the public” is not intended to be a carte blanche free-for-all.

The current pandemic and SUNY’s efforts to combat it will certainly impact SUNY libraries’ ability to be “open to the public.”  However, I feel confident writing my conclusion that any institution that temporarily restricts all patron access will not be found to have not meet the requirements of section 108.  And I feel just as confident saying that scheduled visits by appointment—if that is what a SUNY library needs to do to ensure safety—would not cause a 108 concern, either.[5]

That said, I cannot feel the same confidence for any Safety Plan that completely and utterly removes all public access.  Public access, even if severely restricted, must still be a component in order to meet the requirements of 108.

(4) Can a SUNY library deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety?

Broadly and boldly speaking: yes.

BUT.

As discussed at the beginning of this answer, the law of the state of New York and the policies of SUNY give a great deal of latitude to libraries on a campus-by-campus basis.  Different campuses exercise this latitude in different ways.  This means that while the library in one SUNY location may be operating per a Safety Plan confirmed by a central coordinator, another library may be given a directive to develop their own. 

Or, as (former[6]) SUNY Chancellor Kristina M. Johnson put it:

We understand that…each of our campuses is a complex ecosystem with regular engagement with their respective surrounding communities.

Within those different plans will be different solutions for the safe operations of different sites.  Some of those plans will call for masks, because masks will be the only way the planned operations will be able to be conducted safely.  Other plans may only include modified operations that may be performed safely without masks.  And of course, any plan requiring a mask will include the proper ADA accommodations information for those who are not able to wear one.

While the country has watched as some people challenge the requirement to wear PPE on the basis of civil rights, a limited requirement to wear a certain type of protective gear for a narrowly tailored purpose with a general application is not likely to be found a violation of the First Amendment. But of course, when it comes to civil rights, the devil is often in the details.  If, for instance, only a certain type of facemask was required, and that facemask type did not work well with a certain body type, or the need to wear a hijab, it is possible that could trigger an ADA or First Amendment claim. The guidance being assembled by the Center for Disease Control and the Occupational Safety and Health Administration takes into account the diversity of bodies and identities that Safety Plans will need to serve. By using properly credentialed resources and thinking through Safety Plans from multiple perspectives, a SUNY library should be positioned to deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety.

Last note

In responding to these questions, I am mindful that general legal services are provided to SUNY institutions through the office of the NY State Attorney General, and many campuses have lawyers on staff. Therefore, to the greatest extent possible, any SUNY library, department, center, school, college or university finalizing a Safety Plan should take care that whenever possible, coordinated guidance from SUNY’s recognized legal advisers is incorporated. (Very often, this will have been done at the level where the institution is planning its emergency response.)  I am always gratified when a SUNY lawyer, or another lawyer, calls me to discuss my work for libraries, and I welcome those calls.[7]

As of this date (June 26, 2020) I have found no publicly accessible model safety plan or guidance from SUNY HQ with regard to the resumption of operations.  Rather, the SUNY page for COVID questions shows that the State University of New York is very much in an assessment and response mode, and the SUNY Library Consortium’s page shows that plans are still in development.[8] I am sure that will change as the situation evolves, and I encourage people to be attentive to that page, and their own administrations, for further specific guidance.   At the same time, since no one knows a library better than the librarians who works at it, I encourage pro-active assessment and formulation of access and safety plans by library leadership, informed by the people who work and study there.

This guidance was assembled directly from available materials, and while not legal advice, it is consistent with published SUNY materials and the law.  I hope it is helpful to SUNY libraries as you consider the continuation of your operations.

Thank you for a great array of thoughtful questions. I wish our SUNY libraries much health and strength for the days ahead.

    



[1] The rest of this answer will focus on SUNY, since that is the focus of the member’s questions.

[2] Found on June 8, 2020 at https://www.suny.edu/sunypp/documents.cfm?doc_id=330 and not to be confused with the “Open Access To State University Libraries” policy found that same day at https://www.suny.edu/sunypp/documents.cfm?doc_id=329.

[3] Having sat through budget meetings of all types as a student leader, journalist, academic administrator, and lawyer, I realize that the words “fiscal” and “mission” can be applied to many divergent ends.  Let’s not go there, this is about the law.

[4] I will ask my paralegal Jill to research this question and alert me if she finds one.  If she does, we’ll update this footnote.  Otherwise, you’ll know we didn’t find one.

[5] I am punting on the very practical consideration of the recent Supreme Court ruling regarding sovereign immunity, which arguably positions SUNY to not be very concerned about qualifying for protection under 108.  I am punting because, as the court put it, I am sure SUNY does not want to be seen as a “serial infringer.”  For more on that, see https://www.scotusblog.com/case-files/cases/allen-v-cooper/

[7] (716) 464-3386

[8] This is not a criticism. A good plan takes time. And no plan other than a good plan should be implemented.

Tags: Academic Libraries, COVID-19, Emergency Response, Reopening policies, Section 108, Public Access, SUNY

Topic: CONTU Guidelines - 1/16/2020
We were discussing the Rule of 5 of copyright laws and wondered if it was limited by a single loca...
Posted: Thursday, January 16, 2020 Permalink

MEMBER QUESTION

We were discussing the Rule of 5 of copyright laws and wondered if it was limited by a single location or an institution. For example, if a public library has multiple branches can one branch request 5 articles from a single year from a journal and then another branch also requests articles from that same journal and year? Or did the first branch already use the maximum number of copies?

What about universities or hospital systems with multiple campuses and libraries? Thank you!

WNYLRC ATTORNEY'S RESPONSE

Libraryworld: a place where people gather to discuss information, and the best ways to share it with their community.  A place where people are just as likely to discuss the "Rule of Five" as the "Rule of Three."[1]  A place where routine conversation tackles everything from new database technology, to guidelines from the now-obscure "National Commission on New Technological Uses of Copyrighted Works" (CONTU).

But since not everyone in Libraryworld knows about "The Rule of Five," let's give some background.

The "Rule of Five" pertains to guidelines for applying a very small section of 17. U.S.C 108, the law giving libraries and archives special exemptions from copyright infringement.

That's right, Section 108 of the Copyright Act sets out important exemptions from infringement for libraries and archives who are open to the public.  But since the copyright law giveth and the copyright law taketh away, this "very small section" of the law, sub-section (g)(2), cancels those exemptions if a library or archives using them:

engages in the systematic reproduction or distribution of single or multiple copies…of material described in subsection (d)…. [emphasis added]

"Sub-section (d)" creates:

[The right to make and distribute] a copy, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, of no more than one article or other contribution to a copyrighted collection or periodical issue…[emphasis added][2]

Aha, the right to make copies of "articles" and "contributions to collections!”  Yes, 108 sub-section (d) lets you make those…either for patrons at your own library, patrons at another library, or a requesting institution.  That's a very big, and very important exception to infringement.  It is one of the cornerstones of inter-library loan collaboration. 

But how does (g)(2) limit this important right?  By prohibiting "systematic reproduction or distribution" of the content.  And what does "systematic reproduction or distribution" mean?

The law doesn't say.  And since Section 108 was adopted in 1976,[3] it still hasn't said.

That's where "CONTU" stepped in.[4]

Convened in 1977, CONTU was the "National Commission on New Technological Uses of Copyrighted Works."  In 1978, it issued "Guidelines" that attempted to provide clarity about the meaning of "systematic reproduction or distribution."

This is what they came up with:

[F]illed requests of a library or archives (a “requesting entity”) within any calendar year for a total of six or more copies of an article or articles published in such periodical within five years prior to the date of the request.

This limitation is called the "Rule of Five," since the requesting entity is limited to five copies of content less than five years old, from the same source. [5]

CONTU tried to give libraries a precise mathematical formula and documentation system for abiding within the protections of 108.  While such a precise formula can be useful, I find it more helpful to think of the "Rule of Five" in the context of another part of Section 108 (g)(2):

That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.

In other words: libraries shouldn't use 108 as a replacement for budgeting to purchase a critical magazine or journal needed at a specific location.  They shouldn't collude between institutions to strategically subscribe and then share journals to the detriment of the publisher.  BUT at the same time, when a spontaneous need arises within your area of service, and you have that magazine or journal, don't hesitate to use your network to provide a 108-sanctioned copy.   But once the same place calls you five times in a year about the same source, say "Okay…time for you to get your own subscription."

Although I did not find it in the CONTU/108 commentary, I believe this approach reveals why CONTU's limit on copies is calculated based on the requests of the "requesting entity," and not fulfillments by the lending source.  Just think of it this way: a library or archives should not hesitate to use 108 to fulfill its mission information access.  However, it should take equally great care to show it isn't using 108 to help another library, or a patron, avoid a subscription fee.  By limiting copies from a single source given to another entity to five, CONTU tried to do just that.

Okay, there's some 10,000-foot background on the "Rule of Five."  Now let's focus on the member's two questions:

1. [I]f a public library has multiple branches; can one branch request 5 articles from a single year from a journal and then another branch also requests articles from that same journal and year? Or did the first branch already use the maximum number of copies?

2. What about universities or hospital systems with multiple campuses and libraries?

Let's take a close look at these questions.  In both scenarios, the requested articles are not going to a separate entity (or as 108 and the CONTU guidelines call it, a "requesting entity); rather, the copies are going to branches of the same entity: a branch of a library, a part of a university campus, or a part of a hospital entity.

Because the copies are going to the same entity, as I see it--and insofar as actual authorities like congressional commentary, the Copyright Office, and the courts can guide me--the CONTU Guidelines do not apply to the member's scenarios.[6]  Rather, the limit of a single institution's ability to make copies for itself is defined by the (g)(2)'s more thematic bar on activities that "substitute for a subscription to or purchase of such a work," and of course, the rules of fair use.

How does this play out?  Applying our 108/CONTU background: if a hospital whose library is open to other hospitals[7] has five library suites in different buildings, and wants to put a copy in each suite, it should not apply the "Rule of Five." In fact, this type of example (except they used branch libraries) is cited by the Copyright Office's guidance as exactly not the type of activity 108 was intended to protect![8]  Rather, the hospital would do a "fair use" analysis, or use another part of 108, to make the copies it needs.[9]  Or, if there is no other way, would not make them at all.

Now, with all that said, it is important to note that the entity can make 108/CONTU copies for other "requesting entities" (users, other libraries)…so long as the other 108 criteria applies.  For instance, 108 allows me, and even up to 10 other people (or 20, or 30) to visit your library and make a copy of an article, so long as we are not part of a discernable, coordinated "scheme" like a faculty member sending all their students in to copy the same content.  Because of this, 108 is a powerful tool for information access.  And it's been that way since 1976.

Now, let's stop playing around in the 1970's, and discuss some modern features of this type of "multi-branch" dilemma.

The fact of the matter is, unless the library/university/hospital is purchasing physical copies, at this point in 2020, what might be more relevant than CONTU's "Rule of Five" is the terms of the license from the subscription service the library gains access to the copies through.  Remember, as a general rule, exemptions to copyright infringement do not trump violations of valid negotiated contract terms.  So, if a library gains access to the content through a license that limits the number of copies, it might be that the specific "Terms and Conditions"--not the CONTU Guidelines or basic copyright law--that apply.

This is why careful review of all licenses held by libraries grows more critical, year after year.  It is also why whenever possible, I advise that every license for content should have a clause expressly stating that the terms of the license do not limit the library's rights under Copyright Law Section 107, 108, and 110, and the ADA.

So, where does that leave us on the "Rule of Five?"

There's a brassy phrase people can use to reply when asked "How are you?"

"Five by five," they might say, taking a verbal saunter through (depending on which slang dictionary you use) radio talk, surfer talk, trucker talk, or the characters in a sci-fi/pop culture adventure.

What's "five by five" mean? No one really seems to know.[10]

"Five by five," and "the Rule of Five," have that in common.  Times have changed; has their meaning?

The National Commission on New Technological Uses of Copyrighted Works ("CONTU") issued its guidelines in 1978.  The Commission has not re-convened since then; in fact, in 1992, the section of the law that required periodic assessment of 108's impact on libraries, publishers, and content users was written out of the law.[11]

So here we are, drifting along, applying guidelines from 1978.  Is that "five by five?"  I don't think so.

But I'm glad Libraryworld is keeping the discussion going.



[1] The rule that celebrities die in threes, which when you think about it, is how we all die (if count long enough, and stop counting soon enough).

[2] There are of course some other criteria: there must be no knowledge of a commercial use, and the copy must become the property of the requester.

[3] Act Oct. 19, 1976, P. L. 94-553, Title I, § 101, 90 Stat 2546.

[4] Or, as some have said, stepped in it.

[5] NOTE: this guideline only applies to content within its first five years after publication.

 

[6] While there is some commentary about CONTU in copyright jurisprudence, there is no case law on applying these guidelines, and in any event, they do not have the force of law.

[7] NOTE: being open to outside researchers or patrons is required to even qualify for an exemption under 108.

[8] See Circular 21, page 14, paragraph 3.  When you're done wading this answer, "Circular 21," is that place to further explore the nooks and crannies of this issue.

[9] The very clear case of hospitals using fair use to routinely copy medical journals, Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F.2d 1345, 1973 U.S. Ct. Cl, was determined before 108 was adopted.  Although the medical facilities won that one, I would not advise that be done in this day and age.

[10] My money is on that it mutated from telecommunications.

[11] A Congressional Act of June 26, 1992, deleted former subsection (i) of 17 U.S.C. 108, which read: “Five years from the effective date of this Act, and at five-year intervals thereafter, the Register of Copyrights, after consulting with representatives of authors, book and periodical publishers, and other owners of copyrighted materials, and with representatives of library users and librarians, shall submit to the Congress a report setting forth the extent to which this section has achieved the intended statutory balancing of the rights of creators, and the needs of users. The report should also describe any problems that may have arisen, and present legislative or other recommendations, if warranted.”

Tags: Copyright, CONTU, Section 108

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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.