I am struggling to find information on using popular music in public K-12 schools. I have the following areas I am trying to find information about:
1. Can a teacher use a Spotify account in their classroom?
2. Can a teacher use music with face-to-face instruction?
3. Can a service provider (counselor, therapist, social worker...) use music with students?
4. Can music be played during sporting events
5. Can music be used as part of the morning announcements
Welcome to "Back to School 2021"...a year unlike any other!
I have weathered many K-12 "back-to-schools." For instance, second grade back-to-school, for me, was in 1980. For my son, it was in 2010. And for my daughter, it was just a few days before I sat down to write this.
That 1980-to-2021 time span has allowed me to realize two things:
Realization #1: Erasers smell the same in 2021 as they did in 1980; and
Realization #2: Back-to-school 2021 kicked off in a world that has gone through a lot of rapid and (at times) de-stabilizing change.
The good news about realization #2 is that the law--which tends to change much more slowly than the world around it-- is much the same. So, for this answer, where we can, we'll be linking back to prior "Ask the Lawyer" answers, and where there is something new, we'll add it.
QUESTION 1: Can a teacher use a Spotify account in their classroom?
ANSWER: Not unless the license has changed to allow more than "personal use." For more on that, see "Using Streaming Services (Hulu, Netflix) in the Classroom - 4/17/2019" at https://www.wnylrc.org/ask-the-lawyer/raqs/79
QUESTION 2: Can a teacher use music with face-to-face instruction?
ANSWER: Yes, so long as the music is part of the instruction, and the copy of the song was legally obtained.
QUESTION 3: Can a service provider (counselor, therapist, social worker...) use music with students?
ANSWER: There is no automatic permission or exception to the copyright law that allows a mental health service provider to use recordings, sheet music, or other copyright-protected property for purposes of licensed service.
QUESTION 4: Can music be played during sporting events?
If the recorded or streamed music is protected by copyright, it should only be played with a license.
NOTE: Public schools will want to consult their lawyers about their risks in this regard now that the U.S. Supreme Court has (arguably) struck down the ability to sue "the state" and its subdivisions for copyright infringement.
5. Can music be used as part of the morning announcements?
If the music is protected by copyright, it should only be played with a license.
NOTE: Public schools will want to consult their lawyers about their risks in this regard now that the U.S. Supreme Court has (arguably) struck down the ability to sue "the state" and its subdivisions for copyright infringement.
And with that, I wish you a joyous back-to-school.
 Perhaps this is why I found the familiar aroma of new "Pink Pearl" erasers comforting.
 This is allowed per Section 110(1) of the Copyright Act, which states that "performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction" is not infringement.
 As I write that, it strikes me that such services are so important, ensuring the resource can be used legally is important. There are a number of ways to do that, depending on the precise circumstances.
A taskforce at the college is wanting to use a recent song and video on Youtube. This would be a traditional lip dub with a little step up in production as they would use some greenscreen and use some face tracking to animate anti-racist quotes on the faces of the participants. They want to mimic some of the effects in the video as well as add some of our own. So it is transforming the work. Also, this would be a new creation based on the content of the video and use of the music.
In short, they are looking to do a lip dub of the song with their own spin on the video. The college has their own video streaming platform so this would not be on Youtube.
This would be for the campus community but there might be that people could share outside the organization.
The intent is to educate the campus and is part of a greater initiative to promote diversity equity and inclusion.
This submission is a "fair use” question coming at us from a private college, so before we delve into a reply, I have to emphasize that the specific analysis in this case is limited to that type of entity (a private, accredited school).
Since it can get boring "emphasizing" disclaimers in prose form, I will emphasize it in verse:
If ye a public library be
This analysis is not for ye
If a SUNY or public school
Do not swim in this legal pool
Okay. With that out of the way (and for those of you not put off by either the disclaimer, nor the crude verse), here is my answer:
Riffing on, parodying, and building on popular songs can be an effective way to convey a unifying or powerful message to a group. The use of a known work of art can build on shared familiarity, while modifying it with a unique twist can create a unique and unifying experience.
The technique described by the member is a very popular approach for higher education institutions, and for unrecorded performances/parodies/riffs that are done live on campus, the school's ASCAP/BMI may even apply (meaning, the site of the performance has permission).
Of course, this is 2021, and that means, it doesn't happen if it isn't on video (or in a picture). And since we are still in the midst of a pandemic (although things are looking a tad brighter, here in May of 2021), having a video that is an experience customized, created and controlled by the school is a desirable way to build remote cohesion.
When considering the use of copyright-protected content without permission, there are two factors a private institution must consider:
1. Risk management
2. Copyright infringement
"Risk management" is not about the actual legality of one's actions, but the risk that one's actions will be observed and perceived as illegal.
In this case, the additional circumstances the member lists here (not using YouTube to post the final product) enables "risk management" in two ways: a) the resulting video will not be "purged" from YouTube due to a copyright "red flag" (which can happen even if there is a fair use); and b) by hosting it on a less popular server, it is less likely to be seen by services and bots that are "out there" policing copyright laws.
But of course, an educational institution doesn't want to get away with infringement, it wants to not commit it. And that is the essence of the member's question: is creation of this derivative work a "fair use"?
In their question, the member has walked us through some of the "fair use" factors. The member identifies as an educational institution. The member states that the use of the work will be "transformative." The institution will use all of the audio, and be evocative of but different from the video. And, although it is not specifically mentioned as such, the described use of the resulting derivative work will (clearly) not be a replacement in the market for the original.
What is missing from the submission is the consideration: why this particular work? In order to justify a fair use-especially of an entire work (the audio), the use must not only be transformative, but there must be a reason why that particular work is chosen, and the message sent by the "transformed" work must relate to that reason.
In other words, you don't select the underlying work to re-transmit it at face value; you select the works to say something new, that at least in part, relates back to the riffed/parodied work.
The best example I have seen of this lately is a complete, unaltered use of the "Avengers, assemble," scene from the "Endgame." The clip is exactly as it is in the movie, with no changes to audio or video, except the author puts captions near the various super-heroes as they show up, giving the characters new names, and drawing an analogy to how they saw the protests of 2020 developing.
The end result of this modified "Avengers, assemble" clip is not only highly transformative--the clip is no longer in any way about the original superheroes--but the author uses the identities of the originals to make comments about both those iconic comic book figures, and the categorical names he ascribed to them. It's such a good example, it could be used to teach "fair use" in a law school class (you can see it here, or just search "endgame protestors 2020 avengers" and it'll pop right up).
With regard to this use of audio and video, it is this question--why this particular work was selected--that is the missing piece of the puzzle. So long as that piece fits in, there is a good claim for fair use.
If it is decided that there is a good reason to select the original work, the other thing to be cautious about is how the end result (the new video with the unmodified audio) is used. If it is used only as described and is built into a structured discussion about equity and inclusion--especially if the lyrics and images are used as focal points in the discussion-there is a strong case that this is an academic, non-commercial use.
However, we have to remember that at the end of the day, a college is a place where students pay to be. If the video bleeds into recruitment materials, or is not coupled with the education/discussion, the more likely the use could be found to be commercial.
So: the more "academic" the end result (and its context) is, and the more the initiative functions as both a comment on the source material, and its own, stand-alone message, the better. Since fair use is not simply an additive analysis (it's not just one factor vs. another, but rather, how the factors resolve and then inter-relate to each other), every aspect of this is critical.
Within those parameters, and if care is taken so the video is only used in the educational context (not simply sending a link to it out in a newsletter, without the educational content and context), there is a strong case to make that the new video, inspired by the song’s current video and using that unmodified song, is not a copyright infringement.
I am sorry I could not be more definitive...answers like this are why very often, people just ask for permission!
 I am going to jump right into this answer with the assumption that the reader knows the basics about fair use (Copyright Act Section 107). If you don't know the basics of fair use, you can get the gist on in these "Ask the Lawyer" RAQ’s: https://www.wnylrc.org/ask-the-lawyer/raqs/43; https://www.wnylrc.org/ask-the-lawyer/raqs/78
 So I went to find an example of these "bots" and got more than I bargained for; here is an example of not only how video-sharing services shut down fair use on platforms like YouTube and Facebook, but a story about how this blocking is impacting how people film and transmit law enforcement activity: https://www.eff.org/deeplinks/2021/02/cops-using-music-try-stop-being-filmed-just-tip-iceberg
 A derivative work is a work that incorporates copyright-protected work. The right to authorize derivative works is one of the six rights reserved to the owner of a copyright. Parodies that incorporate or draw heavily from the original risk being "derivative works" (and thus infringement) unless they are 1) done with permission or 2) are a "fair use."
 For instance, Weird Al, although he could likely claim fair use for many of his parodies, always gets permission.
If a signed license says that authorized users for remote access include "current students, faculty, and staff only" or "active faculty, students, and staff only" or even "bona fide current faculty, staff, and students only" can we conclude that terminated faculty would not be legally allowed to have remote access after their termination? (Walk-ins are a separate matter; here we are looking at remote access). Some licenses allow "affiliates" and some even say that it's up to the institution to determine who gets credentials to allow remote access, but we have more than 20 licenses that state in one way or another "current faculty" only. I would take that to mean that former faculty, regardless if the institution allows them to keep their credentials for a year after termination, would NOT be legally allowed to continue to access those resources.
Am I right?
To give readers a bit of context about my answer to this: between 2006 and 2017, I was an in-house attorney at a university. During that time, I hobnobbed with a lot of other higher education attorneys; first, because the hobnobbing helped keep us current in our practice, and second, because attorneys--like murders of crows or parliaments of rooks--are social creatures, who just need to talk about the law.
One of the many higher education/law topics that could turn a flock of lawyers into a full-fledged symposium was the issue of what is meant by the term "faculty."
Are adjuncts "faculty"? Are grad student instructors "faculty"? If a full-time staff member teaches a course or two, are they "faculty?"
Complicating the issue is that the definition of "faculty" will vary from institution to institution, based on union agreements and accreditor criteria--to say nothing of state law and regulations.
And finally, a wrinkle can be created when a "faculty" member leaves regular employment with a college or university, but assumes a new (and often under-defined) status, such as:
This issue of undefined status is the type of topic that will occasion lots of discussion and perhaps another round of potables at a lawyer’s kettle. Why the fuss? Examples exactly like the one brought up in this question. Lawyers hate it when we can't put things into minutely defined boxes to process through a legal formula (after all, the order we impose by doing so is the entire reason for our professional existence).
Here are some examples of what "disorder" a clause like those in the question is meant, by the content provider, to avoid:
Of course, just what is barred, and how "former faculty" access could violate it, is highly fact-specific. So let's take a look at the member's specific question:
...we have more than 20 licenses that state in one way or another "current faculty" only. I would take that to mean that former faculty, regardless if the institution allows them to keep their credentials for a year after termination, would NOT be legally allowed to continue to access those resources. Am I right?
Yes, you're right: if a faculty member is terminated and has no ongoing affiliation as a faculty member (even a tenuous affiliation, such as an honorary appointment or "emeritus" designation, which could give some slim justification), then there is no basis to claim they are "current faculty."
In my experience talking with aeries of higher ed attorneys, the most common way this type of concern is raised is when a faculty member is terminated, and asks to take their institutionally-issued laptop computer with them (often because it is the sole computer they have)--continuing access to servers and databases that would otherwise be cut off. Many places want to do the nice thing and say "yes," but there's a catch: the institutionally-issued computer usually has proprietary software and access that is only available to (you guessed it) current employees. (In addition, if the faculty member was teaching, it might house a lot of content protected by FERPA. So, this question of ongoing access to content only licensed for use by current employees is often the tip of a big compliance iceberg.)
But at this point, I have passed from answering the question (remember? The answer was "Yes!") and moved onto the practical considerations. Practical considerations, of course, are where many of the devilish details reside, but having answered the question, we'll leave it there for now.
Hopefully, this answer from within the conclave of the higher education law has provided some assistance and clarity. I wish the member well; raising this type of contract compliance concern, which can cut across departments at a college or university, is rarely easy, but it's the right thing to do for an institution.
Thanks for a good question.
 Other hot topics that guaranteed a searing debate included: how to negotiate contracts with musical acts, how to build support for meeting accreditation requirements into institutional policy, and the ups and downs of enforcing campus parking policies.
 Yes, and damn important faculty, too.
 Yes, I had fun looking up the proper titles for flocks of birds. https://www.thespruce.com/flock-names-of-groups-of-birds-386827
 That, and to provide endless fodder for television dramas, based on our glamorous lifestyle and impeccable fashion sense.
 If the problem is caused by retention of a computer post-termination, the best way to address it is through a policy that manages this type of situation up-front. For such a policy, there are really only two options: wipe the licensed content and all institutional information from the computer before the former faculty member is allowed to keep it, OR make it clear that institutional computers cannot be transferred after termination (neither of these solutions, of course, is likely within the authority of the institution's library staff to implement. Having a good working relationship with a head academic officer, and/or HR, can allow you to flag this issue to people in a position to do something about it.).
When is it advisable for an author/creator to register a work with the copyright office?
I work in higher education. Students will sometimes ask for information on copyright protection for a thesis (written, not performance). Sometimes faculty will ask about protecting various devices of education such as a syllabus, exam or spreadsheet.
The Copyright Office used to promote the idea that works that are fixed do not necessarily need to be registered. When is registration a good idea? What does registration do for copyright holders?
There are some really good, separate answers to this question. I'll present them in the order I think would be useful to students and academics.
Answer #1: Clarity of ownership
Students own the academic work they author. Even if they are completing an assignment with requirements tightly prescribed by a syllabus (such as: "Write an essay about four different civil rights cases heard in 2019; no more than 2,000 words; cite no less than four peer-reviewed law journal articles commenting on each case; identify a shared theme of the cases; conclude with a short paragraph as to which case is your favorite and why."), the end result--if the student is the only writer--is the student's.
Registration is not necessary to claim a copyright any more, but it remains strong evidence as to the ownership of a work. A student who authors something of importance to that student (such as a thesis, or a student film) should consider registration so they can readily assert that ownership.
Answer #2: Publicly establishing co-authorship
Not only do students own the copyright to their academic work, but students who are co-authors own that copyright together.
This is true even if co-authors take on different tasks (such as: "Student 1 summarizes two cases, Student 2 summarizes two cases; each summary is 250 words; each cites to eight articles; they flip a coin to see whose paragraph on their favorite civil rights case is in the final version, and they proofread, edit, and finalize the document together."), the end result--if they combine their work into a single whole--is the students'.
This is also true of students collaborating with a faculty member or a faculty research partner--even if one author/researcher has more experience than the other. So, while most academic collaborations might not warrant the time and expense of registration, if the end result could be valuable (either financially, or as an academic credit in a published journal or on a CV) the co-authorship should be established in a written collaboration agreement, and confirmed with a joint registration.
Answer #3: Being able to quickly fight infringement
Before I dive into this one, a bit of commentary on copyright and academia:
The world of copyright--and of students taking credit for their artistic and academic expression--is changing: more and more authors are authorizing audiences to use their work through mechanisms such as an “open license” through the Creative Commons.
As a person who (still) believes that "information [still] wants to be free," I see this trend as a positive, but I do have one concern with this generous/generative approach: sometimes, the use of the work might be...wrong.
What do I mean by this? While an author might assume that anyone wishing to use their work would do so for a reason that aligns with that author's own perspective, values, and vision, that is simply not always the case. Sometimes, a person or organization could make a use of a work that is simply unacceptable to the author.
Authors who think they could be impacted by this type of concern should consider using a copyright notice together with an easy way for would-be users to request permission, rather than an “open license.” With this approach, an author/owner can still enable use, but will have a bit more control over what their work is associated with.
The concern over work being used in a way that is objectionable to the author (and isn’t a fair use), is one of the biggest reasons to register a copyright: if a writer/photographer/muralist/etc. really wants to stop someone from infringing their work, that work's copyright must be registered, because that is the only way an author can sue for infringement and obtain an injunction.
Answer #4: Money
My final answer is 100% financial.
As the member's question states, authors no longer have to make a registration to claim a copyright. So what is the motivation to register? In addition to answers "1" through "3," above, if a student/copyright owner, finding that their work has been infringed, wants to be able to sue for "statutory" damages, actual damages, and attorney's fees, they need to have completed the registration of a published work prior to the infringement.
Among many other things, these “statutory” damages, and the ability to recoup the costs of enforcement, are a motivation for a copyright attorney to take your infringement case without needing an up-front deposit. So, it's another tool in the toolbox of copyright enforcement.
I believe answers "1" through "4" take care of the member's last two questions. But what about the first one:
When is it advisable for an author/creator to register a work with the copyright office?
I don't usually play this card on "Ask the Lawyer," but I have to say, this is an almost unanswerable question.
For some people, the mere prestige of being able to look up their registrations at copyright.gov is important.
For others, the certainty of knowing they've done everything they can to protect their work from mis-use is critical.
And for still others--especially those planning to support themselves and their families through their intellectual property--registration is an important habit to ensure they are protecting their valuable property. After all, copyrights are property rights left to a person's heirs after they die, just like money in the bank and real estate.
When I advise a client to register a Copyright, it is because they have flagged that work as important for some reason. For some, they might have already self-published it, and want to be able to control how their work is used. For others, it is because they plan to shop it or sell it, and they want to have optimal protection before they share it. And for others, it is because they suspect that the work has that "special something," and people in the future may copy it.
Any of these, and more, are valid reasons. For students, and those working in academia, the important thing is to be aware of your full body of work, to have clarity about its ownership, and --when you know you've created and own something important to you—to protect it.
Thank you for making sure today's students are thinking about their work and their intellectual property.
 Assignments like this are why students have either loved or hated my classes, AND why I never have to rely on a utility like "Turnitin" to detect cheating. You just can't fake selecting a favorite civil rights case.
 Back when I was in law school this type of group work drove me crazy. I am a good team player professionally, but group academic work brought out the lone wolf in me.
 For example, a person who takes photos at a "Black Lives Matter" march, hoping the images will boost support for criminal justice reform, finds that their photos are being used by a political candidate who portrays the marchers as "the enemy."
 To carry forward my example, license for the photos could say "© NAME, 2020, to be used only with attribution and only after written permission. For permission, please write to ADDRESS. The author generally gives permission to those whose use will align with the author's values and agree to attribution."
 An injunction is a court order to "cease and desist" infringing use of the work.
 "Statutory damages" are those big numbers you used to see at the beginning of movies on video and DVD. And although both mediums are quickly becoming a relic of the past, damages with fixed amounts set by law are not.
 The "actual" costs and damages created by the infringement.
My institution has a small number of documents in our archives related to previous graduate students. Some are definitely educational records (transcripts, field placement evaluations). Then there are a) letters of recommendation received by the school or written by school faculty/administrators and sent to other schools, b) some correspondence between a student and the school/administration, and other items like c) copies of images or articles from student publications.
The documents span decades. Most --- but not all--- of these former students are confirmed deceased. Most items in this small group of documents relate to alumni who were/are notable, but in widely varying degrees.
A few of these documents concern a famous alum, who passed away. An outside researcher is asking about the documents related to that alum, and unfortunately, there are no surviving institutional access policies related to student records or unpublished correspondence in our archives. We want to respect copyright, FERPA, and the alum's estate.
For the educational records, I can't find clear guidance on how long FERPA access restrictions last, but other academic collections seem to allow access 50-75 years after the former student's death.
So, a few questions:
1) When should on-site access to historical educational records be allowed (if ever), with reference to FERPA? What about providing copies of historical educational records?
2) When should on-site access to unpublished, non-educational records related to former students be allowed, in reference to state and federal copyright and privacy laws, and possibly FERPA? What about providing copies of these documents?
3) Should we take a more risk-averse approach to high-profile alumni materials, or should our policies apply equally to all alums?
I am always fascinated by the transformation documents can undergo, simply by operation of law, circumstance, or time. For instance:
And of course, documents can be "in" copyright, and "out" of copyright, or restricted due to medical content, or under terms of non-disclosure...restrictions that can shift based on any number of factors.
An educational institution considering levels of access and use of student-related documents has to consider not only these legal factors, but their unique policies. Factor in fame, and the stakes get even higher.
Because of that complexity, I could muse/write/talk on this topic for hours. But let's focus on the member’s specific questions:
1) When should on-site access to historical educational records be allowed (if ever), with reference to FERPA? What about providing copies of historical educational records?
If a former student is not deceased, there can be NO release of FERPA-protected education records to otherwise barred parties without written, dated consent.
If the former student is known to be deceased—or the passage of time suggests they might be deceased—then the records are no longer protected by FERPA, and that restriction no longer applies.
But as the member points out, there are other considerations.
2) When should on-site access to unpublished, non-educational records related to former students be allowed, in reference to state and federal copyright and privacy laws, and possibly FERPA? What about providing copies of these documents?
This is an interesting question because unless the records we're talking about ("related to former students") only contain "directory information,” then they are by definition "education records" under FERPA. That is because the FERPA is intentionally expansive. So old bills, dusty admissions files, and antiquated (but often fascinating) "administrative" records, although not "educational," per se, are still barred from release by FERPA if they relate directly to a student.
BUT, as this question implies, FERPA isn't the only thing that could bar or restrict access to old records. Copyright, privacy laws, and general prudence are all good reasons to not release institutional records unless there is a policy and process for doing so (like a policy for sending transcripts to future employers), or your institution is compelled to release them (like a judicial order or subpoena).
So, while a student will always have access to their records under FERPA, both former students and third parties should by default be barred from access or obtaining copies to records they are not entitled to.
Which brings us to:
3) Should we take a more risk-averse approach to high-profile alumni materials, or should our policies apply equally to all alums?
Many, but not all, educational institutions have internal archives—not formal "Archives" they hold in trust for the public (like the W.E.B. DuBois papers at University of Massachusetts), but rather, materials they regard as important pieces of their institution's history and identity, so deliberately retain.
For some, this may be a complex and far-reaching catalog of institutional history. For others, it may be simply hanging onto every program for every graduation ceremony. And of course, for many, it will be special handling of any material that is related to famous or noteworthy alumnae.
Whether formal and well-funded, or informal and not funded, every educational institution's internal archive should have a policy that covers: 1) that the archive exists to transition material from "records" into "archives;" 2) how those materials are selected; 3) how those archival materials are to be preserved; 4) how the archival materials are used and accessed internally; 5) how the archival materials are used and accessed externally; 6) the ethical standards and institutional values being applied in the overall operation of the archive. 
If an educational institution has in-house records of such magnitude that they warrant being their own archive (for instance, the Eqbal Ahmad papers at Hampshire College), yes, the development of that archive could warrant its own separate policy. In that case, unique care would have to be taken to consider not only FERPA, but privacy laws, copyright (the author of an admissions letter is the copyright owner of that admissions letter...not the institution the letter was sent to, even if the institution retains the only physical copy).
All that said, the end result need not be "risk-averse," so much as "risk-informed:" carefully assessing all the compliance concerns and risks, how does an institution create an archive that suits its stated purpose and conforms to institutional ethics? Until an institution is confident it has reached the right answer, access to third parties should not be granted, and only need-to-know access should be granted to those within the institution.
I would like to thank the member for this question, it is a good one. And I think we may have reached a new milestone at "Ask the Lawyer"—a reply where the footnotes are as long as the reply!
Thanks. I wish you a well-resourced and culturally rich archive, and continue positive alumnae relations.
 See letter of LeRoy Rooker, Director, Family Policy Compliance Office, U.S. Department of Education letter of Date, found at https://studentprivacy.ed.gov/sites/default/files/resource_document/file/LettertoConnecticutStateArchivistRegardingEducationRecordsMay2008.pdf as of February 10, 2021, re-affirming "that the FERPA rights of “eligible students” lapse or expire upon the death of the student based on common law of privacy rights."
 Text for this law can be found at: https://www.nysenate.gov/legislation/bills/2019/s5575.
 I am writing this on February 10, 2021.
 This "Ask the Lawyer" answer does not address the issue of yearbook photos and student-generated art or academic work. For that, see https://www.wnylrc.org/ask-the-lawyer/raqs/108 and https://www.wnylrc.org/ask-the-lawyer/raqs/91.
 What is "fame?" It's a notion that is taking odd journeys these days. As I said in footnote #3, I am writing this on February 10, 2021. Jockeying with the impeachment proceedings for "fame" on the cover of today's digital New York Times: an article about a lawyer who appeared in virtual court as a cat. I bet he can't wait for his 15 minutes to be over.
 "Directory information" includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.
 Here is the actual definition: "...those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution."
 There are exceptions to this, of course...one big one being the records of campus police.
 I value this archive because it has letters between W.E.B. DuBois and Mary Talbert, a Buffalo resident who was a stalwart organizer for civil rights and, on the side, historic preservation (she led the effort to save the house of Frederick Douglass). I read her letters when I need a shot of pragmatic inspiration.
 Some "archives" exist because some wonderful employee couldn't bear to see institutional history thrown out, and they got permission to buy some boxes and put the "archives" in the storage closet.
 For this question, "risk" is not just legal risk, but relational and reputational risk, too. After all, it might be legal to share a harsh evaluation from a thesis committee related to the work of a long-dead student...but is there value in doing it? (Of course, there might be). Knowing why something is in the archive, and having full confidence in that reason, is just as important as preserving the record in the first place.
[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?
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.
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.
(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), but here is my quick summary:
(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.
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.
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.
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.
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.
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. 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.
 The rest of this answer will focus on SUNY, since that is the focus of the member’s questions.
 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.
 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.
 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.
 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/
 (716) 464-3386
 This is not a criticism. A good plan takes time. And no plan other than a good plan should be implemented.
In the spring, it was clear academic libraries providing digital resources were in a state of emergency and fair use restrictions were loosened.
This fall, we are asked to plan for face to face learning, but we may be asked to turn on a dime and provide digital resources overnight if a student or faculty member in a course is unable to attend class.
We are hearing mixed messages from other institutions. What is our situation today, emergency or status quo?
Before I answer this question, I do have to emphasize: as I wrote here, fair use was not modified during the height of the initial pandemic closures. Further, there is no case law or regulatory guidance indicating things will be any different if we have to return to the level of lockdown experienced this Spring.
There is no "emergency use" exception to copyright law--even under fair use. That said, this is an excellent question that captures the experience of working in higher education right now, and I do have a few helpful things to offer in response.
Higher education libraries trying to support another immediate conversion from in-person to online learning should consider doing the following:
1. Work with their academic and IT colleagues to optimize their institution's rights under the TEACH Act, which under the right conditions, allows the digital transmission of copyright-protected material.
"Optimizing," in this case, means presenting otherwise inaccessible materials in class, so the TEACH Act's exception infringement can be fully used, while making the most of the medium. For example, if a history class would typically read a chapter of a book before class, then meet in person to discuss the chapter, perhaps now a part of the online class could consist of the faculty member or students reading the chapter aloud, and the class using an asynchronous message board to discuss it.
This method requires faculty to be flexible, but it is one way to ensure access for all, when all else fails.
2. Unite with other institutions to re-negotiate the terms of digital licenses from academic publishers.
I cannot stress this one enough. Academic libraries must unite, must negotiate hard, and must threaten to boycott any publisher that refuses to offer a reasonable price for students to access content online. This was critical before COVID, and it is even more critical now.
3. Much easier, and even cooler than #2: plan to collaborate with students' local libraries to ensure students can take full advantage of Copyright Section 108's support of access via inter-library loan.
That's right. Let's say I am a college student from Littleplace, NY. Suddenly, it's October and I have to vacate my dorm room at ABC College, due to a local surge in COVID-19. To be ready for the rest of my (now online) classes, I need 12 articles, a textbook that costs $500 (that I was previously sharing with two friends), and a course pak I forgot in my dorm.
So long as I have access to the list of materials, I can head over to the Littleplace Library (or call them) and work to find the materials I need. Using its rights under Section 108 of the Copyright Code, the Littleplace Library can get me a copy of the articles...possibly even in collaboration with the ABC library, or another academic institution with the right subscription.
In my observation, this is a very under-discussed option. Remember, your students have a right to work with their local library to get copies under a combination of 108 and (on the part of the student) fair use. The key is having the course materials listed in such a way, that the local college or public library can easily (and quickly) help them.
This, by the way, is one of the many reasons it is critical to keep open every single one of our small and mid-size libraries in small towns and villages across the country.
4. Use your institution's compliance with NY's Textbook Access Act.
This is another "if you have time" one.
In New York, all higher education institutions and publishers must follow this law:
Textbooks shall be sold in the same manner as ordered by such faculty member or entity in charge of selecting textbooks for courses. In the event such product is unavailable as ordered, the bookstore, faculty, and relevant publisher shall work together to provide the best possible substitute that most closely matches the requested item or items, and the publisher shall make available the price of such substitute or substitutes readily available.
This clause has always been applied to combat predatory pricing for course materials, but lends itself to the current situation, too. If the instructor was given a discount digital copy, the students should be able to buy one, too.
5. Take some time to examine the latest ruling on academic e-reserves and fair use, so you feel comfortable making the call when you can post things on e-reserve without permission. Fair use has not been "loosened," but it still has lots of room. The full document has been updated to "Ask the Lawyer" as "Becker Ruling 2020." It's boring, but very instructive.
My best wishes for a supported and supportive prep for the Fall semester.
 This would also allow presentation through adaptive technology, for those who need it per ADA.
 I understand if you are too busy coming up with an "August Staffing Plan" and trying to figure out where to get 10 gallons of hand sanitizer to organize the revolution. But this really is important.
 As if I have to sell most of you on the importance of funding libraries.
 Always use your institution's fair use form to record your conclusion.
 The helpful stuff starts on page 6.
ResearchGate is often a place individuals will go to snag PDFs which are typically provided by authors, not publishers. It refers to itself as a community and network for researchers to share and discuss their research with others from around the globe. ResearchGate explicitly states that they are not liable for any copyright infringement, and that the responsibility rests with the individual; it is entirely up to the individual to either post the PDF to be downloaded freely, or to send the PDF to individuals upon request.
I have multiple questions surrounding the use of ResearchGate. Number one, should libraries be directing individuals to ResearchGate to ask authors for copies of their articles? Number two, should our document delivery service be providing copies of PDFs from ResearchGate to our library patrons? I am personally very hesitant to refer anyone to ResearchGate as I find most faculty researchers are not aware of who truly holds the copyright to their published articles. Thank you!
I first heard about “ResearchGate” at a copyright training I was conducting for librarians.
There I was, holding forth about Section 108 and Fair Use, when out of the blue, an academic librarian asked me: “What do you think of Researchgate?”
This question triggered my number one rule for lawyering: never assume you know an answer; always do your research. So even though my brain figured that “Researchgate” was a new scandal involving falsification of data, I instead replied: “I have to admit, I am not familiar with that.”
Good thing I followed rule number one!
But first, here’s what I have learned:
Notably, as the member points out, ResearchGate’s “Terms” for submitters reinforces the rights of authors:
As a member, when you post full-text articles or supplementary materials on ResearchGate, you do not transfer or assign copyright to us. Rather, you make the content available to the public through ResearchGate.
…about encourages users to respect the rights of others:
If you choose to privately archive or publicly post content, we encourage you to first confirm your rights before doing so. … As we do not have any information about rights you may hold, or any license terms or other restrictions which might apply to such content, we necessarily rely on you to understand your rights and act accordingly.
ResearchGate’s relationship with users is also governed by clauses on “Liability” and “Indemnification”—with ResearchGate attempting to pass all liability for a copyright infringement onto the users who supply content.
And finally, as also shown in their policies, ResearchGate also takes advantage of the “notice and takedown” provisions under the Digital Millennium Copyright Act to assure itself “safe harbor,” in the event a user posts infringing content.
What I found at ResearchGate.com was what looks like a thorough attempt to dot all the “i”s and cross all the “t”s to respect intellectual property. They probably have a very good lawyer.
But as I said, “always do your research,” so in addition to visiting their site, I also visited PACER to see if ResearchGate is being sued by anyone for copyright infringement. And boy, are they ever.
ResearchGate GmbH (its corporate name in Germany, where it appears to be based) is being sued by Elsevier, Inc., Elsevier Ltd., Elsevier B.V. and the American Chemical Society (“ACS”). The basis for the suit, as set forth in paragraph “three” of the plaintiff’s complaint, is the ResearchGate’s use of “Published Journal Articles” (which the suit calls “PJA”s):
This lawsuit focuses on ResearchGate’s intentional misconduct vis-à-vis its online
file-sharing / download service, where the dissemination of unauthorized copies of PJAs
constitutes an enormous infringement of the copyrights owned by ACS, Elsevier and other
journal publishers. The lawsuit is not about researchers and scientists collaborating; asking and
answering questions; promoting themselves, their projects, or their findings; or sharing research
findings, raw data, or pre-prints of articles.
And, just in case that doesn’t sound too bad, here’s the next paragraph:
ResearchGate’s infringing activity is no accident. Infringing copies of PJAs are a
cornerstone to ResearchGate’s growth strategy. ResearchGate deliberately utilizes the infringing
copies to grow the traffic to its website, its base of registered users, its digital content, and its
revenues and investment from venture capital. ResearchGate knows that the PJAs at issue
cannot be lawfully uploaded to and downloaded from the RG Website. Nevertheless, in violation of the rights of ACS, Elsevier, and others, ResearchGate uploads infringing copies of
PJAs and encourages and induces others to do so. ResearchGate finds copies of the PJAs on the
Internet and uploads them to computer servers it owns or controls. In addition, ResearchGate
lures others into uploading copies of the PJAs, including by directly asking them to do so,
encouraging use of a “request full-text” feature, and misleadingly promoting the concept of “selfarchiving.”[sic] ResearchGate is well aware that, as a result, it has turned the RG Website into a focal point for massive copyright infringement.
Yikes, that sounds dire, right? And very akin to the member’s concerns.
So, with all that established, I’ll share my thoughts, and address the member’s questions.
Number one, should libraries be directing individuals to ResearchGate to ask authors for copies of their articles? Number two, should our document delivery service be providing copies of PDFs from ResearchGate to our library patrons?
Questions like this may be informed by law (and risk management), but must always start with ethics.
The ALA Statement of Ethics has very clear language regarding intellectual property: We respect intellectual property rights and advocate balance between the interests of information users and rights holders.
When it comes to a source like ResearchGate—ostensibly trying to operate within the bounds of the law, but alleged to have a seamier side—the ALA’s further musings on this statement on copyright are also instructive:
Library workers are increasingly critical resources for copyright information in their communities. Consequently, they should be informed about copyright developments and maintain current awareness of all copyright issues. Library workers should develop a solid understanding of the law, its purpose, and the details relevant to library activities. This includes the ability to read, understand, and analyze various copyright scenarios, including fair use and other copyright limitations, using both good judgment and risk mitigation practices.
Library workers should use these skills to identify their rights and the rights of their users. Further, they should be ready to perform outreach surrounding copyright topics and refer users with questions pertaining to copyright to reliable resources. However, library workers should avoid providing legal advice. They may provide information about the law and copyright, but should recommend that patrons consult an attorney for legal advice. [emphasis added]
I can’t answer the member’s questions for any particular library. But based on the ALA Statement of Ethics, its further comments on copyright, and risk management principles drawn from the law, I can suggest a methodology for a library to apply when asking them.
First, if a librarian, using their own observations, and applying ALA ethics, believes a source to be dubious, it is clear that they are ethically obligated to “us[e] both good judgment and risk mitigation practices” about “relevant to library activities,” and to work with decision-makers at their institution to develop a clear position on that source.
This is not a simple nor easy exercise. Further (and frustratingly, for some) it may vary from institution to institution. Some libraries dance on the cutting edge of copyright. Others err on the side of caution. The decision to do either should be based on an informed assessment that considers the library’s mission, insurance, tolerance of risk, and its comfort level with the status quo.
The member is already applying personal experience and modeling this balancing. Remember the last part of the question: I am personally very hesitant to refer anyone to ResearchGate, as I find most faculty researchers are not aware of who truly holds the copyright to their published articles.
To that type of informed concern, there are two considerations I would add for libraries making this type of determination:
1) Under Section 108 of the Copyright Act, a library’s exemption from infringement can turn on their lack of awareness of a scheme to make exploitive commercial copies. Your library’s insurance may also deny coverage if a library is knowingly referring users to an infringer. So, if your institution is aware that a source is an infringer (which is different from suspecting a source is an infringer), that is a factor to balance.
2) On the flip side, libraries should not be willing (and generally have not been willing) to roll over to support the unchecked dominance of traditional commercial publishers. Without pushback, rates will continue to go up, while terms will get more onerous. But there is a difference between thoughtful pushback (like the current, organized fight against the McMillan Embargo), and systematic copyright infringement (like Napster).
Questions like this one show that librarians are thinking about the difference.
Thanks for a great question. It will be interesting to see if the case against ResearchGate goes the distance, and to see libraries decide where they stand.
 When this question first put the name in my brain, the “g” was lowercase.
 For over ten years, I was in-house counsel at a university, and had a reason to read “The Chronicle of Higher Education,” every week. Every year the Chronicle reported on one research-based scandal after another; it’s a miracle I didn’t hear the term “ResearchGate” before this!
 Am. Chem. Soc'y v. ResearchGate GmbH, 2019 U.S. Dist. LEXIS 98372, 2019 WL 2450976.
 Yes, this is one monster paragraph within the law suit.
I'm working on a research project with other librarians who work with nursing schools from across the United States.
Our research question involves the restrictiveness of requirements for articles used in student writing assignments, i.e. limiting to articles published in the past 5 years and one author must be a nurse.
Our data collection plan involves collecting syllabi and assignments for nursing school writing assignments to analyze for the criteria that articles must meet.
We would like to know before we begin, do syllabi and course assignments constitute intellectual property that is protected by copyright laws?
Thank you for your assistance with this!
Yes, syllabi and assignments can be protected by copyright, so long as they are of sufficient substance and originality.
Of course, there is no precise formula for what constitutes “sufficient substance and originality.” However, a freshly-composed assignment of more than a paragraph or two should be enough to qualify for protection, and a typical syllabus—setting forth the course purpose, assignments, means of grading, and class-specific policies—should almost always qualify (even if wrapped up inside a larger institution-wide template to cover academic integrity, ADA accommodations, and grade appeal).
The trick, however, is know who—or what—owns that copyright. Some institutions will claim ownership, since the content was generated by their faculty (a concept called “work for hire”). But other institutions will expressly let their faculty own their work-product. So, there is no one rule for determining ownership, and that means there is not one method for obtaining permission.
But do you need permission? While that is always nice, in academia (just like anywhere else), not everyone is eager to have their own work assessed, and yet, there must be some way for analysis, commentary, and criticism of that work to be conducted. Which bring us to every information professional’s favorite copyright concept: fair use.
Fair use is the ability to use copyright-protected materials for purposes of education, commentary, and criticism. It was designed for projects like the one in this question. But just like with determining ownership, there can be no cookie-cutter answer, for as one court put it: “Determining fair use is a mixed question of fact and law.”
How can a project like the member’s address this “mixed question?” In a situation like the one presented by the member, here is a good approach:
Generate a careful summary or abstract of the project (which the member has done here), and the data collection methods.
Consider how many copies of assignments/syllabi the project will need to make, how they will be stored, and the use your project will make of them. If stored in hard copy, where will the copies be, how many must you create, and how will you restrict further duplication? If digital, consider how the electronic copies will be accessed and secured, perhaps warning users on a user-limited shared drive to only use the copies for the purposes of the project, and to not disseminate them further.
With all that assessed (but no copies yet made!), conduct and document a “fair use assessment,” using your institution’s policy and form for fair use (any research institution, or educational institution, should have these; for example, the great library team at Cornell has a well-developed checklist for their faculty and staff to use when contemplating the use or partial use of copyright-protected materials).
If you determine the use will be “fair,” and decide to proceed with making only those copies you need for your project (and include only the content needed to prove your point in any final product) save the fair use assessment documentation, because under Copyright §504, a good-faith belief by a library, archives, or higher ed institution that it is making a fair use of protected materials can limit the damages in the event it is accused of infringement.
So, to reiterate the answer to the core question: yes, assignments and syllabi can be protected. But to expand from there: that protection should not be a roadblock to an academic work assessing them. While it might present a small “speed bump,” the law of fair use provides options that are consistent with good scholarship practices and rigorous inquiry.
I am curious to see your project’s conclusions.
 Hon. Cardamone, in Weissmann v. Freeman, in the United States Court of Appeals for the Second Circuit, 868 F.2d 1313, at 1324 (1989), ruling on a case of copyright infringement in academia, while also over-ruling a lower court judge who was a bit ham-handed in assessing the original case (even judges have a tough time with fair use!).
 Or as the law puts it: “…the court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords…
Is a parent or guardian allowed to access the titles of books that that their child(ren) have checked out from the school library?
Are school administrators allowed to access the titles of materials a student checked out?
Are school safety officers and Student Resource Officers (“SRO’s”) allowed to access the titles of materials a student checked out?
In the state of New York, library records linked to the names of users can only be disclosed:
1) upon request or consent of the user;
2) pursuant to subpoena or court order; or
3) where otherwise required by statute.
Therefore, the strong default answer to the member’s questions is “NO.”
This strong default position is based on New York Civil Procedure Rules (“CPLR”) 4509, which states:
Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute.
But when it comes to the records of minors at a school serving minors, after this omni-present strong default, there are some additional factors to consider.
Does the school condition library privileges on express parent/guardian access to library records?
Under CPLR 4509’s first prong (“consent of the user”), some libraries may condition library use by a minor on permission to share library records with parents/guardians.
This condition is not invisible or automatic; it would need to be in the cardholder agreement signed by the student, or in a written school policy passed by the school board. It must be clear, and in writing.
There is much vigorous debate about what level of parent/guardian access it is appropriate to condition library privileges on. But since such conditioning is allowed by the law, setting the appropriate balance between privacy and access is the job of the library and its leadership.
The bottom line on this factor? If a school library has an express, written policy allowing it, and if that policy also complies with the school’s obligation’s under FERPA (see below), a list of titles checked out may be disclosed to parents in conformity with CPLR 4509.
Does the school regard library records as “education records” under FERPA?
The member’s questions warrant three considerations vis-à-vis FERPA (“Family Education Rights Privacy Act”), a country-wide law which applies to any educational institution receiving federal aid.
First FERPA consideration: Are the school’s library records accessible as “education records” under FERPA?
Because it is famous for protecting privacy, people generally think of FERPA as a bar—not a means—to information. But FERPA expressly allows parents and guardians of students under 18 (unless the minors are attending a higher ed institution) to “inspect” “education records,” and, under the right circumstances, allows disclosure of education records to school administrators.
A list of titles borrowed from a library, if maintained in a way that meets FERPA’s definition of “education records” could be subject to such inspection and disclosure.
So let’s look at that definition:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.
That’s a broad definition! But several categories of information are exempted from it, including:
(i) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute;
Under this exception, school library records, if kept in a certain way (with only the librarian, or “substitute,” having access to the records, and the information not linked to or accessible to others, including the student), are arguably exempt from FERPA.
What’s the take-away, here? It is possible—but not a uniform rule—that school library records are “education records” under FERPA. Determining if they are should be part of a school’s annual FERPA notice and policy work, and should be a consideration when a school library considers automation options.
Second FERPA Consideration: If a school determines their library records DO qualify as “education records,” does a school administrator, safety officer, or SRO have a right to access them under FERPA?
Even if the library records at a specific school qualify as “education records,” when it comes to school administrators, there are only two instances where disclosure is allowed.
The first instance is created by FERPA regulation §99.3. It allows “… disclosure … to other school officials…[if the disclosure is in the student’s] legitimate educational interests.”
With regard to a request for a list of borrowed library books, this means there must be a direct, pedagogical reason to disclose that particular list to that particular administrator, safety officer, or (if their contract has the right provisions) external personnel. To determine if those individuals’ access is in the students “legitimate educational interests,” consideration of the unique circumstances is required, but it comes down to: how does this serve the student?
The second instance is created by FERPA regulation §99.36. This regulation allows an educational agency or institution to “disclose personally identifiable information from an education record to appropriate parties… in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.”
Under extraordinary circumstances, this exception could be cited to justify disclosure of education records to an administrator, safety officer or SRO addressing a concern about immediate health or safety.
But the circumstances warranting the disclosure would need to be—as I say—extraordinary. Congress and the U.S. Department of Education want this to be a very narrow exception tied to imminent threats:
The Department has consistently interpreted this provision narrowly by limiting its application to a specific situation that presents imminent danger to students or other members of the community, or that requires an immediate need for information in order to avert or diffuse serious threats to the safety or health of a student or other individuals. 
Such a “health/safety” analysis—especially if used to justify disclosure of library records—will be highly fact-specific. Whenever possible, it should be done in consultation with the school’s attorney, with careful consideration of the precise circumstances and any relevant policies (by the way, this is the kind of “now or never/critical” question school attorneys cancel meetings to research and answer promptly).
Third FERPA consideration: if a school determines their library records are “education records,” CPRL 4509 may still bar parent access under FERPA.
And finally, there is also a possibility that even if a school’s library records are “education records,” under FERPA, library records in New York schools are barred from being shared (without consent) with parents/guardians by CPLR 4509.
I base this on §99.4 of the FERPA regulations, which states:
An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.
In New York, we have just such a “State statute:” CPLR 4509. When it was adopted, its role was described as follows:
The New York State Legislature has a strong interest in protecting the right to read and think of the people of this State. The library, as the unique sanctuary of the widest possible spectrum of ideas, must protect the confidentiality of its records in order to insure its readers' right to read anything they wish, free from the fear that someone might see what they read and use this as a way to intimidate them. Records must be protected from the self-appointed guardians of public and private morality and from officials who might overreach their constitutional prerogatives. Without such protection, there would be a chilling effect on our library users as inquiring minds turn away from exploring varied avenues of thought because they fear the potentiality of others knowing their reading history.
Those are some stirring words about privacy. They show what the Assembly’s intent was when CPLR 4509 was passed.
That said, this potential conflict between CPLR 4509 and FERPA has not been tested in a court of law. This position is not something a school should adopt or rely on without consultation with their own attorney, as part of their annual FERPA notice and policy work.
But it is definitely something to consider.
Final FERPA Consideration: how to resolve a FERPA question when state and federal law conflict.
The good news in all this 4509/FERPA complexity is that FERPA itself anticipates this type of conflict and resulting concerns. FERPA Regulation §99.61 states:
If an educational agency or institution determines that it cannot comply with the Act or this part due to a conflict with State or local law, it shall notify the Office within 45 days, giving the text and citation of the conflicting law.
In other words, the U.S. Department of Education knows schools will be wrestling with these issues! A school that makes a good-faith determination of non-disclosure under FERPA (always with the advice of their attorney) can follow this policy for reporting a conflict. The USDOE will write you back, even if your concern is policy-driven or hypothetical.
Since school libraries—which are legally distinct from libraries at colleges and universities—are specifically named in CPLR 4509, there is no doubt that 4509’s strong bar on disclosure applies to schools where minors are in attendance, while the law is silent about access of guardians/parents to their children’s library records.
The best way for a school library and its leadership to handle these questions is in advance, by having a policy that respects student/family rights, and the operations of the library.
A good school library “Confidentiality of Library Records” policy will protect student privacy, educate students about their right to privacy, coordinate with the school’s position under FERPA, consider student and employee well-being, and position the library to operate properly.
Creating such a policy is an exercise in staff teamwork and aboard responsibility. Considering the complexity of the different factors at pay, I urge school librarians and their leaders to review these considerations with their own attorneys, and to work with their boards to adopt policies that reflect the legal position and the educational priorities of their institutions.
Thank you for these important questions.
 I am not going to provide a citation for this; the arguments are easy to find, and extensive. For the record, I’ll say: I am not a fan of any third-party access other than what is needed to ensure remuneration for lost items.
 Because school is a place where young people should be learning to value and protect their rights to privacy, I don’t suggest this lightly, but it is feasible.
 Authority: 20 U.S.C. 1232g(a)(4)
 20 USCS § 1232g (a)(4)(2)(b) [NOTE: The cited law and its companion regulation vary; the regulation adds language that the records is a ‘personal memory aid.” But the law does not have this “personal memory aid” language, and laws trump regulations, so this interpretation is feasible.
 For those of you reading this who are not in primary or secondary education, in New York, an SRO’s are “commissioned law enforcement officers who are specially trained to work within the school community to help implement school safety initiatives as part of the school safety leadership team.” Source: New York State Education Department at http://www.p12.nysed.gov/sss/documents/FrameworkforSafeandSuccessfulSchoolEnvironments_FINAL.pdf
 If there is ever a case based on this line of argument, it may come down to a missing Oxford comma, since I imagine there would be a contention that the “state statute” also needs to related to “divorce, separation, or custody,” but given that there is no comma after “binding document,” that is not how it reads. Grammar, like privacy, is important.
 Mem. of Assemblyman Sanders, 1982 NY Legis Ann., at 25.
 But there is some commentary by the New York Committee on Open Government that supports this reading of the Regulation 99.4 (opinion FOIL AO 11872).
In a public school...What are the possible legal consequences of showing Netflix or other digital streaming services like HULU from a personal account in a classroom setting.
Can teachers legally stream Netflix services from their personal account in the classroom?
The "Educational Screenings of Documentaries" section of Netflix indicates to me that those documentaries listed are the only titles that would be allowed to be shown through a personal account and that all others are for personal use only, meaning that Fair Use would not apply.
I found a Lib Guide from the James E Tobin Library:( https://molloy.libguides.com/streaming/netflix ) that explains how the personal license overrules copy right exemption. I understand what the page is saying in its entirety and like their explanation, but would appreciate having a legal perspective on this issue.
Thank you for any help you can provide!
The relationship between a person and their streaming content service is almost always governed by a type of contract called a “license.”
As the members states, such a license (often accepted by clicking to accept terms left unread) can over-ride the infringement exceptions like those found in 17 U.S.C. §§107, 108, and 110.
In other words, once a user voluntarily agrees to a contract restricting use of content, rights they may have once by law may become inaccessible.
Use of streaming content in the educational setting is a good example of this. While Section 110 of the Copyright Act may allow a teacher to show a movie in class (if the movie is shown in the physical classroom and if the content is part of the curriculum), that same movie might not be accessible under the teacher’s Netflix license.
Why? Content providers change the terms of licenses all the time, but one thing is pretty constant: restricting subscription access to personal use.
Here is how Hulu puts it:
3.2 Your License. Hulu is pleased to grant you a non-exclusive limited license to use the Services, including accessing and viewing the Content on a streaming-only basis through the Video Player, for personal, non-commercial purposes as set forth in these Terms.
Netflix has a similar-sounding restriction. Even the “Educational Screenings of Documentaries” the member references (found at https://help.netflix.com/en/node/57695) license is pretty narrow (and actually a shrewd PR move for a commercial service):
Educational screenings are permitted for any of the documentaries noted with this information, on the following terms:
The documentary may only be accessed via the Netflix service, by a Netflix account holder. We don’t sell DVDs, nor can we provide other ways for you to exhibit the film.
The screening must be non-profit and non-commercial. That means you can’t charge admission, or solicit donations, or accept advertising or commercial sponsorships in connection with the screening.
Please don’t use Netflix’s logos in any promotion for the screening, or do anything else that indicates that the screening is “official” or endorsed by Netflix.
We trust our users to respect these guidelines, which are intended to help you share and discuss our documentary content in your community.
To the extent your institution requires you to demonstrate that you have a license for your screening, please show them this page.
So there you have it: the only Netflix content that may be shown for classroom use is, as the member states, per this permission.
But (to address the other part of the member’s question) what are the consequences for not abiding by the license? Is there a growing body of case law to show the fines, terminated accounts, and jail time people are doing when they violate the terms of their streaming service license?
There is not.
Why? Most of these license agreements have arbitration clauses, meaning that disputes are settled without the publicly accessible process found in a court of law.
Here is part of the arbitration clause from Netflix:
So there may be a number of instances where a license has been violated, and Netflix has sought “…the same damages and relief that a court can award” via arbitration. But I don’t have access to that information. Most of us just don’t know.
I do know, however, that violating a license is wrong, and can have consequences.  Further, I would hope that in the educational setting, modeling casual disregard for personal contractual obligations is not encouraged.
Teachers are usually barred by the contract from streaming Netflix services from their personal account in the classroom. Unless there is an express license to the school from a streaming service, or for a particular film, I encourage teachers to obtain physical copies of films/DVD’s from the library, and play them in class on a good old-fashioned TV and DVD player, as Section 110 of the Copyright Act allows them to do.
Thanks for this perceptive question.
 Fair use, library exemptions, and certain educational/charitable exemptions, respectively.
 I am mostly kidding about this last one.
 Interestingly, as of this writing, Netflix is hosting “The Arbitration,” a 2016 film where: “An arbitration panel is formed after a company CEO in Nigeria is sued for wrongful dismissal and rape by an employee with whom he had an affair.” An arbitration over unauthorized commercial use of a streaming service would likely be a tad less dramatic.
 And the people who probably do know are locked into confidentiality.
 Is a mandatory arbitration clause like this fair? Are highly-leverage content restrictions healthy for our society? Many would say “no” to both. But the member’s question was not about mandatory arbitration clauses and heavy-handed content contracts. Just wait until we get that question!
I have been reading the legal arguments undergirding the Controlled Digital Lending initiative (controlleddigitallending.org). The legal arguments are outlined in the white paper here: https://controlleddigitallending.org/whitepaper.
Our library has a DVD collection that has been heavily used over the years for teaching, research, and recreational use. Circulation of that collection has been restricted to members of our campus. There are fewer and fewer DVD players available on campus now and so we are facing significant sunk costs with a collection that may become unusable. Hence, I am wondering whether we could reformat DVDs that we have purchased over the years, put those physical copies in a dark archive (i.e., no longer circulating), and stream the digitized copies one user at a time to verified members of our campus (current students, staff, and faculty). Would the doctrines of 1st sale and Fair Use apply, given that there would be a one-to-one relationship between the physical copy purchased and digital copy loaned, as well as noncommercial use?
This is a great and important question, and it rests on an critical issue.
With that in mind, before you delve into this answer, I encourage readers of “Ask the Lawyer!” to check out the CDL “Statement” on www.controlleddigitallending.org/statement.
Okay. Did you check it out? Interesting, right? Now, on to the answer….
Controlled Digital Lending (“CDL” ) is an effort to assert the rights of content users—as opposed to those of content owners—in the next regime of copyright law.
As described in the CDL “Statement”:
CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation. For example, if a library owns three copies of a title and digitizes one copy, it may use CDL to circulate one digital copy and two print, or three digital copies, or two digital copies and one print; in all cases, it could only circulate the same number of copies that it owned before digitization.
Rallying librarians from an impressive array of institutions, CDL asserts an extension of current copyright doctrines and seeks to confirm rights critical to the world of information management.
But although it is a hybrid argument of Fair Use and the First Sale Doctrine, CDL is not the law. Rather, it is a concerted effort to influence—and perhaps become—the law.
As I see it, CDL is also a deliberate and potentially powerful answer to the established trend of content providers using contract law to impose limitations on copyright’s “First Sale” doctrine. Here are some examples of this trend:
Because of the billions of dollars in revenue such contracts protect, the entertainment, publishing, and other IP industries will fight tooth and nail to not only resist CDL, but any extension of Fair Use and the First Sale doctrine. Considering the lobbying power and commercial heft of these industries, the CDL position will need all the recruits and allies it can get. It will be a showdown fought through usage, lawmaking, and most likely, law suits.
The CDL’s organizers know this might be hazardous combat. Right in their “Statement” is the caution:
Because the following analysis is general, any library considering implementing controlled digital lending should consult a competent attorney to develop an appropriate program responsive to the specific needs of the institution and community.
This warning in the Statement is well-justified. The stakes for generating infringing copies (which is what copyright owners will argue CDL digital copies are) and distributing them (which is what copyright owners will argue CDL-using libraries are doing) can be high, with the violator liable for damages and attorney’s fees, and stuck in a courtroom battle for years.
So what would a “competent attorney” advise their client to do in this case? I don’t speak for all competent attorneys, but in a case like this, I would strongly advise an institution NOT to make “CDL” copies unless the action was part of a highly assessed, planned, and well-calculated strategic plan that considers the benefits and accepts the risks.
How does an institution do that? Any institution seriously considering CDL should form a “CDL Committee” consisting of the institution’s librarian, risk manager/insurance liaison, a representative of the institution’s academic wing (if applicable), and an administrative decision maker (an officer of the institution). The group should consult with (but not necessarily include) a lawyer.
The group would assess what use their institution could make of CDL, get advice from the lawyer about those specific uses and the risks, check their insurance coverage, assess what is being done at peer institutions, and (perhaps most important) consider how this overall issue impacts their mission. There would possibly be, at some of the bolder institutions, some acceptance of calculated risk.
If the group’s overall assessment leaned toward CDL, the committee could create a “CDL Assessment and Use Policy” to govern all its uses of CDL. This way, the decision to use CDL would be rooted in the institution’s mission, while the process would be informed by the library’s assets and users’ needs. This is critical because if the institution was ever sued for infringement, a good array of back-up material, showing a bona fide belief in Fair Use, and consistent with that of other participants’ in the CDL effort, could help them assert their position and limit financial damages.
With regard to the member’s particular scenario (trying to get more use out of an extensive collection of aging DVD’s), if I were the lawyer consulting with a committee, I would probably advise against that particular use for CDL. Unless the transmission is per section 110 of the Copyright Act, the risk of a suit for unlicensed transmission of a motion picture is just too high. But I’d also want to assess each movie on a case-by-case basis. While the combination of First Sale and Fair Use might not simply allow the restricted streaming, other solutions (a news exception, a license) might.
I am sorry I cannot give a more definitive answer, but as the CDL organizers themselves point out, CDL is on uncertain ground. The authors of the “Statement” don’t come right out and say it, but they are trying to fight fire with fire…offering a bold and critical counterpoint to the current copyright scheme through which rights owners tightly control digital dissemination of works in print.
Libraries, these days, occupy ground zero of many of society’s struggles, and the next regime of IP law is one of those. On the battlefield of intellectual property, troops are massing at the no-man’s land between digitization and the First Sale Doctrine. Led by librarians, there is an army that hopes to not only hold the First Sale line, but officially extend it to a practice that is more convenient, green, and aligned with current technology: CDL.
Does your library want to join that battle? Does it want to explore making select works available, under closely controlled circumstances, without requiring a person to pick up a hard copy? By making a deliberate, well-planned decision to have a CDL policy, your institution can answer the famous question:
“There’s a war coming…are you sure you’re on the right side?” 
 The signature list is like a “Who’s Who” of library world.
 The person at your institution who makes sure you have insurance, and transmits claims information when there is an issue…or that person’s supervisor.
 At least until a heavy hitter wins a case or two using the CDL argument.
 Wolverine to Storm in X-Men, movie (2000). I wish I had it on DVD.
We have a question that relates to the intersection of New York state level library privacy laws (https://www.nysenate.gov/legislation/laws/CVP/4509) and FERPA. Our campus has a newish system that is attempting to correlate student actions and activities with academic success and retention. As such, it could be helpful to include things like visits to the writing center, appointments with academic advisors, and also library activities, such as whether a class came in for a library information literacy session or whether a student made an appointment for a library one-on-one consultation. FERPA lets institutions share academically related information within certain bounds.
We are wondering what the privacy balance is here given that the information would stay in-institution, but not in-library. Here's what we are considering doing:
1) Noting in the system which classes had a library session(s). Within the system, that would identify individual students within those classes.
2) putting an opt-in statement on our one-on-one research appointment form and if the student consents, then providing to system the student name, appointment date/time, and course that the help was for (but not anything about the specific content of the appointment).
Have we crossed any lines here? Do we even need the opt-in statement? Is this something clear or fuzzy/grey? What should we be considering that we haven't thought of? Thanks.
Depression. Burn-out. Dissatisfaction. Lack of connection. Lack of money. Lack of parking.
These are just some of the reasons students give when they choose to leave—or are forced to leave—their college or university before graduating.
Many times, these reasons snuck up on them, although in hindsight, they could be seen: a pattern of missing classes, a downward trend in grades, maybe even dropping out of clubs and other campus activities. And almost always, after a student leaves (often in tears) faculty and staff, coaches and friends, are left wondering: could they have done more?
No matter what events led up to it, for each such incident of student “attrition,” the stakes are high: student loans, a sense of failure, the end of a career dream, and perhaps even a medical condition that went untreated while the student struggled on their own.
But what if the clues could be seen earlier? What if the downward spiral could be stopped?
Fueled by increasing technological capabilities, many institutions of higher education are developing cross-campus, inter-sector systems to do just that: hoping to correlate the warning signs and fight student attrition through early intervention. Using a variety of commercially available and home-programmed tech, they are tracking everything from dining hall meals, to class attendance, to visits to the gym. These factors, as well as comments from concerned faculty or staff, are then routinely assessed and cross-checked for red flags.
Because libraries are increasingly hosting classes and providing adjunct space for group work, it makes sense that such a system would consider tracking library usage. After all, it can be a good sign that a student is just getting out of their dorm room!
But there is a tension within this well-meaning system. College is where young adults journey to find their independence and privacy; promoting this maturation is part of a college or university’s purpose. Further, a net of privacy laws constrains the easy sharing of certain types of information. But knowing the painful consequences of unchecked student struggles, many institutions work hard to find the right blend of metrics and policies to be able to intervene.
Part of this hard work is finding the right path through that net of privacy laws. As the member writes, the biggest privacy law of all, FERPA, does allow such inter-departmental sharing, and even parental notification about safety concerns, when the time is right. It does this through both application of the law, and “FERPA waivers.”
But in New York, FERPA is not the only privacy rule to apply to these information-sharing systems. As the member states, New York’s Civil Practice Laws and Rules (the “CPLR”) §4509 (“4509”) also governs a student’s records—at least, their library records. And it sets the bar high.
4509 is a short law where every word matters, so it is worth quoting in full here:
Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute. [emphasis added]
As you can see, “college and university libraries,” even though they are part of larger institutions, are clearly covered by this law.
So how does 4509 impact the member’s question?
First, every library (academic or not) should have a clear sense of what it regards as “library records.” As can be seen in the statute, the term is not precisely defined (“including but not limited to” leaves a lot of room for argument!). Some of the obvious ones are listed in the law (circulation records, database searches, copy requests) but unnamed others could be just as vital to privacy (use of a 3-D printer, security footage covering the circulation desk, and in the member’s example, the use of research appointments). And still others activities that use the library may or may not apply (classes conducted in the library, but not part of library programming, are arguably excludable).
To protect the records as required by law, a library must know precisely what records it must protect. This is why, just like a public or association library, a college or university library should have a “Privacy of Library Records” policy clearly showing where it draws the line. Such a policy should also have a “subpoena response protocol,” so the library can train staff on how to receive internal and external third-party demands for information.
And in a perfect world, this college or university “Privacy of Library Records Policy” should be known and supported by the institutional officer who oversees the library (a Provost or Academic VP). This officer’s authority, from time to time, may be needed to ensure the policy is respected by campus safety officers, student disciplinary administration, and any other department that might want library records in service of another institutional purpose. Librarians should not hold the 4509 lines alone!
Now, back to the member’s scenario. Once a library knows precisely where it “draws the line” on library records, the member’s instinct is right: any access to information that falls within the institution’s definition of “library records” should be either denied, or allowed only as the law requires: via a signed consent from the user/student.
I know, just what every student wants—to fill out another form! But these 4509 consents, just like a “FERPA Waiver,” are not only mechanisms to ensure legal compliance, they are a chance to educate students about their right to privacy.
For instance, the consent form (I imagine it would be a digital click-through on a password-protected student account, but it could be a paper form) could say:
“The privacy of library records is protected by the law in New York State (CPLR 4509). Your enrollment in the [SYSTEM NAME] will ask the library to disclose certain library records that are protected by this law. As a library user at an library in New York, you have the right to keep your library records private. A list of what [LIBRARY NAME] considers to be library records is here [link to policy]. If you would like to consent to the [NAME OF LIBRARY] sharing your library records with only [SYSTEM], please check the below consent:
[ ] I am at least 18 years of age, and consent to the limited sharing of my library records for purposes of sharing the information with the [SCHOOL NAME] [SYSTEM]. This consent does not allow sharing my library records, even within the school, for any other purpose. No consent to share the records with external entities is give.
I understand I will need to renew this consent every fall semester, and that I may revoke this consent at any time.
Of course, there is no legal requirement for annual renewal, but it is worth considering. A year is a long time in the life of the typical undergraduate student, who may enter college with one set of civil rights values, and leave with another. With an annual renewal, the library not only complies with the law, but educates the student about their privacy rights on an annual basis.
So, to address the member’s final questions:
Have we crossed any lines here?
No. By thinking about this issue during the planning phase of the system, you are making sure the lines are bright and well-defined.
Do we even need the opt-in statement?
You could call it that, but I recommend calling it a “4509 Consent.” That would build awareness of this important law in our future leaders (and librarians). Of course, as a lawyer, I may be biased as to how important that is (but it’s really important!).
Is this something clear or fuzzy/grey?
Not so long as your library has a clear and routinely evaluated policy defining what it regards as “library records.” This can be tough at an integrated institution, where so much information technology crosses through different sectors. But it should be done.
What should we be considering that we haven't thought of?
I think you should consider buying yourself a nice cup of coffee or tea for doing your part to support a commitment to personal privacy in the United States of America and State of New York. Unlike in the European Union, our privacy currently risks death by a thousand cuts. Every bit of armor counts.
And thank you.
 I was a general counsel at a university for ten years…even as the in-house lawyer, I had a few of these moments.
 The “Family Education Rights Privacy Act,” a federal law often blamed for institutions not telling families about students’ struggles sooner.
 If this answer were to address those bases, it would be about ten pages longer, so we’ll just assume the system in this scenario complies with all the regulations and guidance listed here: https://studentprivacy.ed.gov/audience/school-officials-post-secondary.
 Neither is CPLR 4509. These systems have to navigate HIPAA, state health and mental health laws, and depending on what they do, even PCI and defamation/libel concerns.
A teacher would like to reproduce an entire article from a published magazine. They state that because it is only 10% of the entire magazine, it falls under fair use. My interpretation has been that it is 10% of the article, since the article is a published work on its own.
The “Ten Percent Rule” has been kicking around the world of education for decades! This is a good chance to bust this myth, since as we’ll review, it is not a reliable stand-alone formula for “Fair Use” (copying without needing permission).
But we’ll start with another area of the law. This question involves not only Fair Use, but Section 108 of the Copyright Act, which applies specifically to libraries.
Under Section 108(d), the teacher (or any library user) may make one copy of:
…no more than one article or other contribution to a copyrighted collection or periodical issue…if—
(1) the copy …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; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
So in this scenario, if the other above-listed criteria are met, the teacher can make one copy of one hundred percent of the article.
But after that one Section 108 copy is made, unless the school obtains a license to duplicate the article, the only subsequent copies can be those authorized by Section 107 (“Fair Use”). This question asks: does copying an article from a larger publication meet Section 107’s criteria?
The answer is “it depends” (in law, that is often the answer!). But what does it depends on? If only the answer was a simple “Ten Percent Rule” (whether ten percent of the article itself, or ten percent of an original compilation)…. but it isn’t, even in the educational environment. Instead, the overall circumstances, when viewed through the lens of the four Fair Use “factors,” are what govern this answer.
There are many excellent model policies out there on how to apply Fair Use in academia, an every academic institution should have their own. So I will not use this “Ask the Lawyer,” response to duplicate what’s already out there, but I will take this opportunity to emphasize: duplication based solely on the rationale that what is being copied is only 10% of a larger article or publication is not determinative of Fair Use, even in an educational, not-for-profit setting.
A string of recent cases, delving deeply into how the four “Fair Use” factors are applied when making excerpts available in academia, shows things just aren’t that simple. Commonly called “Cambridge I, II, III, and IV,” these cases involve claims by Cambridge University Press, Oxford University Press, and Sage Publications against Georgia State University, and showcase the most in-depth, frustrating wrangles about Fair Use in academia ever to be seen.
The most recent ruling in this saga, Cambridge University Press v. Albert (“Cambridge IV”), was issued on October 19, 2018. If you feel like reading the clear, cogent writing of a federal judge obviously frustrated by another federal judge’s inability to figure out Fair Use, check it out.
As re-emphasized in Cambridge IV, the third factor of Fair Use is the “amount and substantiality of the portion used in relation to the copyrighted work as a whole.” But the opinion goes on to clarify that the amount used (ten percent or otherwise) is not a factor to be considered in isolation. Rather, all four factors are to be applied in a way that reinforces the purpose of the Copyright law: promoting the progress of scholarship and creativity. And in academic publishing, the opinion makes clear, the impact on the market for an article can be just as determinative as that unlicensed copies’ not-for-profit context or academic purpose.
So how can the member’s issue be resolved? When confronted with a scenario like the one submitted by the member, a librarian should not feel the need to argue with a teacher. Rather, the librarian should rely on their institution’s attorney-vetted Fair Use policy and form to enable the teach conduct and document their own assessment of Fair Use.
Why do this? First, a good Fair Use policy and form will walk the teacher through the Fair Use analysis, saving the librarian time (and sanity!). Second—but just an important—the creation of a written record documenting a good-faith determination of Fair Use will potentially help both the teacher and the institution by mitigating any damages for infringement. And third, in education, getting these things right is a good example for students.
So once the teacher in this scenario makes their one 108 copy, provide them with a copy of the institution’s Fair Use policy and form. If your institution doesn’t have a policy or form, this is a good time to get one, since these days, even municipal entities can be found liable for copyright infringement.
 I like the one here: https://copyright.cornell.edu/fairuse. The careful reader will note that the form Cornell maintains does list 10% as a guideline for assessing Fair Use, but cites that factor as but one of many aspects to consider and document.
 Or as the Constitution calls them in Article I, Section 8, clause 8 “science and the useful arts.”
The director of the college print shop has come to me for copyright assistance. Our faculty often ask for photocopies of materials for distribution to students in class. She asks the faculty member if they have the appropriate permissions for making copies but is not always convinced by their answers. Is there any form she can ask faculty to sign attesting to their right to reproduce the materials that will protect the college in the case of copyright infringement? Thank you!
This question seems simple, but it actually involves some high-end concepts of business law and liability.
Most libraries, museums, theaters, and other units within large institutions are actually part of the same entity. In other words, although they may have a distinct identity within their institution (“The Michael Library” “The Peter Museum” or “the Catherine Gym”), there is only one actual legal entity (“Romanov College”).
Many people find these niceties hard to grasp, but here is why it is important: in this scenario, the single entity (the college) includes the on-campus copy shop. This means that what the shop does, the entity does…including alleged infringement.
This same unity generally applies to employees, too. In a body of law called “Master and Servant,” if an employee is performing a task related to their job, and not deliberately violating employer policy or the law, for purposes of the legal system, the employee’s actions will generally be imputed to the institution.
This is why institutions are best served in this area by educating their employees about copyright, and documenting the employees good-faith efforts to abide by the law (it is also why many HR manuals have warnings about the consequences of not following policy: it limits the institution’s ability to protect you).
This puts lot of pressure on the employees who staffing the in-house copy shop. What are their responsibilities? Do they need to educate their co-workers on copyright risk? Are they expected to protect the entire college? Each institution has different policies and job descriptions that answer those questions differently.
That said, is there a simple approach that can help with this? Yes. For the in-house copy shop (NOT for an on-campus contractor), below is a framework to address copyright priorities with diplomacy, tact, and helpfulness. It is designed to be used with an institution’s “Fair Use Assessment” form, and to route people to the person responsible for permissions at your institution.
NOTE: All that said, any copyright-related form not custom-designed for your organization should be reviewed for cohesion and consistency with other institutional policies, including those in the employee manual. Never use any copyright-related form without considering your institution’s unique needs and approach to copyright and liability! If your institution has an in-house lawyer, compliance officer, risk manager, or insurance carrier, make sure they are part of finalizing any such form or solution.
[INSTITUTION NAME] COPY SHOP COPYRIGHT HELPER
Hello! Thank you for coming to the [INSTITUTION NAME] copy shop to arrange duplication of your class materials.
As an instructor who generates your own copyright-protected material, you know the value of copyrights to others, and you know there are penalties for improper, unauthorized duplication.
Please follow the process below. When you check “yes” to 1 or 3, we are happy to assist you with your copies!
1. Do you have written permission from the copyright holder or their agent to make copies?
If “yes,” attach the permission, and let’s get copying!
If “no,” please move to question 2.
2. Do you have verbal permission from the copyright holder or their agent to make copies?
If “yes,” please confirm the permission in writing, return to us and check “yes,” above, and we’ll get right on this for you!
If “no,” please move to question 3.
3. Do you regard this copy as a fair use?
If “yes,” please fill out the attached [INSTITUTION NAME] fair use assessment form, and we’ll get your copies made!
If “no,” or “I don’t know,” please move to question #4.
4. Do you find this process frustrating and need help arranging permission to use this material, or more input on fair use?
If “yes,” please see XXXX at OFFICE LOCATION, who assists with permissions at INSTITUTION NAME. You can also call them at NUMBER or reach them at EMAIL. We hope to see you again soon!
MATERIALS (Title, number of pages):_______________________________
 This is one of the reasons many institutions opt to host a separate company for on-campus duplication services.
 I know! The law needs to move on. Perhaps “Captain” and “team member” can replace this.
 That said, never assume that is the case! Every allegation of liability must be carefully reviewed by a lawyer, as there are many exceptions and precise formulas that control such things.
 Demonstrable, good-faith effort to abide by the law can actually limit damages when copyright infringement is attributable to a not-for-profit education institution.
 If you don’t have either or one of these, share this RAQ with the decision-maker at your institution who could make that happen. Both the form, and a person who can facilitate permissions, are worthwhile risk management investments.
A teacher would like to reprint a student workbook we can no longer find in print. We tried to get permission from the company that bought the publisher out, but they said they couldn’t help. At this point, can we prove that we have made a good faith effort to receive permission?
It is frustrating to know just the right resource for a class—and be unable to access enough classroom copies.
Just as vexing is going the extra mile to seek permission to make your own…only to be told that you’ve reached a dead end.
And yet, class must go on. We tried to ask…now can we just make those copies?
Unfortunately, a “good faith effort to receive permission” is not a defense from liability for copyright infringement. Further, introducing evidence of the “good faith effort” to doing things the right way might work against a defendant, since it might limit their ability to claim they are an “innocent infringer” (someone who has no basis to know they are infringing, or made a reasonable but erroneous assumption of fair use).
Of course, there are some exceptions to this rule. If the purpose of the copies is to enable commentary and criticism, excerpts sufficient to illustrate the instructor’s point (and no more) may be duplicated. And a library making an archival or preservation copy under §108 of the Copyright Act might duplicate the entire book (once, but not for classroom use). But copies for students, whether or not they are sold, do not fall into these categories.
The best solution in this situation may be to find a stalwart staff member who likes to play detective, who can hopefully track down the actual copyright owner. This can sometimes be determined on copyright.gov, can sometimes be determined from author’s websites, and can sometimes only be distilled by triangulating the information from about five different sources.
And sometimes, even after a herculean effort, the answer cannot be found. But no matter what, unauthorized duplication of copyright-protected work without permission can lead to liability and damages…and a defendant showing they tried to ask for permission before doing the copying might make things worse.
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.
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.
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.
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:
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
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
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!).
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!
[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” 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, a plain, unadorned recipe, which is effectively a set of instructions with very little creative expression, is not sufficiently original to warrant copyright protection.
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 (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.
 17 U.S.C. Section 102 is the section of the Copyright Code that defines and lists copyrightable subject matter.
 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.
 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.
 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.
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.
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.
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:
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.
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)
 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!
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
From: Stephanie 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.
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?
 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). 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!
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?
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.
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.
As you say, a college can show a movie they own, without further licensing, so long as:
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.
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).