Digital Reference: Legal Issues

Instructor:Mary Minow, J.D., A.M.L.S.

LibraryLaw.comconsult@librarylaw.com

Infopeople Webcast Series: Third Thursday

Thursday, June 16, 2005

12:00 noon to 1:00 p.m

.

• Today’s webcast:– presentation: 50 minutes– Q&A: final 10 minutes

• Submit your questions via ‘Chat’ during webcast so presenter gets them in time

• Fill out evaluation during Q&A

Don’t wait for Q&A to submit questions

Webcast Archives: http://infopeople.org/training/webcasts/archived.php

Technical Housekeeping

.

When to Use Chat

Chat Area ThereList of Participants There

• Get help with technical difficulties •send message to “HorizonHelp”

• Ask presenter questions•send message to “ALL”

• Chat with other participants•“select name from dropdown list”

.

What is Digital Reference?

• Email reference • Chat• Pushing web pages• Scanning articles• Sending licensed

database articles

Note: “Virtual Reference” is often used to signify real-time transactions

.

Digital Reference Is …

• Email reference • Chat• Pushing web pages• Scanning articles• Sending licensed

database articles

Transcript Terror - Nancy O’Neill

.

Digital Reference: Legal Issues

• What can I send?– Scanning articles from print– Sending links– Pushing and pasting articles from

databases

• Privacy

• What can I do with the transcripts?

.

What can I send? Pushing pages, copyright and licensing

• Scanning articles from print

.

What can I send? Pushing pages, copyright and licensing

• Scanning articles from print• Local and cooperative reference• Analyze under Copyright Framework

.

Scanning - checklibrary copyright flowchart

Public Domain

Fair Use

Get Permission

Sec. 108Libraries

Evaluate item by item when copying for user

.

Public Domain Make Unlimited Copies

Public Domain

.

Examples – okay to scan …

Public Domain

Examples:– phone books– directories that have no original

selection, arrangement– public laws, cases– published in U.S. pre-1923

See American Library Association copyright webcast infopeople.org/training/webcasts/03-03-05/

.

Okay to send links…

Public Domain

Links are addresses – factual

No copyright concern unless

- you copy an entire list (list itself may have a thin copyright in its creative selection, arrangement)

- additional restriction e.g. by contract

Links e.g.

www.loc.govwww.librarylaw.comwww.infopeople.org

.

Sec. 108 Library exception

Public Domain

Fair Use

Get Permission

Sec. 108Libraries

Requirements to be a Section 108 library:

(1) no copies for commercial advantage

(2) open to public or specialized researchers

17 U.S.C. Sect. 108(a)

Sec. 108ILL

I am a 108LIBRARY

.

• No copies for commercial advantage

and

• Include notice of copyright on copies

17 U.S.C. Sec. 108 (a)

I am aLIBRARY

Sec. 108Libraries

108

.

“Notice” on Copies

Must copy original notice

Copyright © 1999 by Andrew Alpern. All rights reserved under Pan American and International Copyright Conventions.

Copyright © 2005 by the American Library Association. All rights reserved except those which may be granted by Sections 107 and 108 of the Copyright Revision Act of 1976.

If none, must includelegend stating that

“the work may be protected by copyright”

17 U.S.C. Sect. 108(a)(3)

.

Copies library makes for patrons

37 C.F.R. 201.14

18 point typeProminent displayDurable paper

in handouts

.

Sec. 108 Library exception

17 U.S.C. § 108(d)

Libraries may copy one article from a periodical if

(1) becomes property of user for study or research

(2) copyright warning displayed

.

Copying articlesand small excerpts okay if …

17 U.S.C. Sect. 108(d)

• Library may copy for user’s private study or for ILL

• Photocopies or scans

• Becomes user’s property

.

… and if “isolated and unrelated”

17 U.S.C. § 108(g); National Commission on New Technological Uses of Copyright Works (CONTU) www.cni.org/docs/infopols/CONTU.html

Guidance from interlibrary loan?Library may request 5 copies of articles from most recent 5 yrs of single journal title during calendar year

CONTU Rule of 5 Guidelines

Guidance from interlibrary loan?Library may request 5 copies of articles from most recent 5 yrs of single journal title during calendar year

CONTU Rule of 5 Guidelines

No systematic reproduction of multiple copies of the same material

.

Copying entire works and substantial parts is okay if …

reasonable investigationshows library cannotbuy copy at a fair price

e.g. out of print

17 U.S.C. Sect. 108(e)

.

Sheet Music

Graphic

Audiovisual Works

May NOT copy for users

17 U.S.C. Section 108(i)

.

DOES NOT APPLY TO

Musical, Graphic,

AV Works

17 U.S.C. Section 108(i)

.. But OK to copy

Graphics that are part of a book (print)

Audiovisual news programs

.

When can I scan pages from a book or magazine?

Fair Use

Likely Yes Likely No

PurposeNonprofit + Commercial

NatureReference,nonfiction

Published +

Fiction, ArtMusic

Unpublished

AmountSmall amt + Complete work

Heart of work

MarketDoesn’t hurtmarket of

original +

Hurts market orpotential marketof original

See alsoFair Use ChecklistIndiana Univ, Copyright Management Centercopyright.iupui.edu/checklist.htm

.

If all fails, need permission

Public Domain

Fair Use

Get Permission

Sec. 108Libraries

.

Licensed databases … permission?

Public Domain

Fair Use

Get Permission

Sec. 108Libraries

.

What can I send? Pushing and pasting from licensed databases

Is user member of your library? e.g. email reference

Check license agreement to see if user is authorized(probably needs library card and PIN)

.

Problem: license restrictions generally trump copyright law

What if I find information in a database that meets

public domain/libraryexception/fairuse?

Public Domain

Sec. 108

libraryFair Use

17 U.S.C. § 108 (f)(4)

.

Generally no.

License restrictions trump copyright law

Can I send information from database that is

public domain/libraryexception/fairuse?

Public Domain

Sec. 108

libraryFair Use

17 U.S.C. § 108 (f)(4)

.

Public domain, library exception, fair use can disappear…

Need to negotiate license terms carefully

Licenses freely entered into

.

License silent on digitalreference?

Look at authorized users definition

Digital Reference and Database Licenses

.

Digital Reference and Database Licenses

License silent on digitalreference?

Defaults to Copyright Law

Public Domain Fair Use

Sec. 108

library

.

When can I send pages from a licensed database?

Lead patron to her library’s database. Have patron use her card.

Second choice: use “donated barcode” listed in 24/7 Collaborative Policy Manual.

Third choice: Use databases licensed to AskNow

i.e. LAPL FirstSource Databases

.

Licensing Resources

• What’s New in Database Licensing? Infopeople webcast – Dec. 16, 2004 with Sybil Boutilier- includes library friendly provisions infopeople.org/training/webcasts/12-16-04_licensing.html

• Liblicense at Yalemodel license, vocabularywww.library.yale.edu/~llicense/index.shtml

.

Privacy

• Far larger issue than ground reference• Patrons leaving spores all over the net• Littering their identities• AskNow offers anonymity as a choice • Promote it as option

.

Personally Identifying Information (PII)

• Status: 24/7 and QuestionPoint are merging privacy policies

• Both commit to confidentiality of PII• But must disclose when required by law

.

Personally Identifying Information (PII)

• But must disclose when required by law

• QuestionPoint deletes PII after 90 days

earlier on request Poof!

.

Personally Identifying Information (PII)

• But must disclose when required by law

• QuestionPoint deletes

PII after 90 days

Poof!

Reality – hard to delete digital PII / easier not to collect

.

Time to revisit library privacy policy?

See Infopeople webcast on Privacy, Libraries and the Lawinfopeople.org/training/webcasts/10-21-04_privacy.html

Library policy may bestronger than state law

… protect all user records

But check with library counsel

.

What are lawful orders to disclose virtual reference records?

California Govt Code Sect. 6267

Registration and circulation records may not be disclosed unless

*Administration of library*Consent by patron (written)*Court order

.

Subpoenas usually are NOT Court OrdersSearch warrants ARE Court Orders

Issued by courtJUDGE determined

Your response: Comply immediately

Administrative, Civil, Criminal (e.g. 5 days to respond)

… generally NOT issued by a court. Your response: I’ll check with my attorney

“Must Respond!”

SearchWarrant

Subpoena

.

PATRIOT ACT Sect. 215 Orders

See Library Privacy Audits and Search Warrants: Preparing for Inquiries into User Records, Infopeople webcast Nov. 4, 2004

www.infopeople.org/training/webcasts/11-04-04_privacy.html

“Must Respond!”

Reminder: Call ALA Office for Intellectual FreedomSay simply “May I speak to a lawyer”800-545-2433, ext. 4224

.

Digital Reference creates more records

But CAN offer greater anonymity

. www.library.cmu.edu/People/neuhaus/software.html

.

www.asknow.org/mix/privacy.cfmSee also www.247ref.org/portal/247priv.htm

.

Your library’s privacy policy

Should not conflict with collaborative policies e.g. AskNow

Post prominently – add a link to your library’s privacy policy to your web page offering digital reference

Library Privacy Policy http://247ref.org/

.

Further Resources

Paul Neuhaus, Carnegie Mellon University

Digital Reference and Privacywww.library.cmu.edu/People/neuhaus/privacy.html

Links to sample privacy policies, virtual reference software privacy features and more

.

What can I do with the transcripts?

• Privacy - don’t do anything you promised not to. Best practice: get permission.

• Copyright – joint authors… means both parties have ownership in a transcript, and need not get permission to use. Must share profits.

.

Summary: Digital Reference Legal Issues

• What can I send?– Scanning articles from print– Sending links– Pushing and pasting articles from

databases

• Privacy

• What can I do with the transcripts?