MEMBER QUESTION

Sometimes, people nap in the library, particularly people who we believe might not have stable or sufficient housing. We feel that a library should not exclude people who need a secure place to rest, so long as there is no interference with library operations, but are there any legal considerations to this issue?

 

WNYLRC ATTORNEY'S RESPONSE

This is a VERY sensitive issue. There are many factors that could contribute to a person sleeping in a public space, including:

• An undiagnosed medical condition
• A diagnosed medical condition
• Non-medical factors impacting behaviors
• Temporary or serial lack of a safe, stable place to rest
• Simply wanting to take a nap[1]
• Any combination of the above-listed factors

Each one of these brings their own array of legal (and ethical, and moral) considerations.

But before we get into all that, let's discuss: for purposes of this question, what is "sleep"?

For purposes of this question, let's call "sleep" a "state of healthy, restful, and restorative unconsciousness."  In other words, "sleep" is that great thing we all do when our eyes get heavy, we yawn, and lie down, dozing into blissful unawareness.

Sleep: we all do it, and many of us love it.[2]

Now, let's talk about what sleep isn't for purpose of this question.  "Sleep" isn't, for purposes of this question; the result  of a concussion, a seizure, a stroke, an opioid overdose, or dangerously low blood sugar.   And yet, to the untrained eye, any one of these dangerous conditions could be mistaken for "sleep."[3]

Because of this, no matter how much my bleeding heart and sense compassion want to say, "Just let the person sleep in the library, and don't say anything," I can't.  I just can't bring myself to normalize ignoring what could be "sleep" one day, and a diabetic coma the next.[4]

That said, because it could be related to a real or perceived medical condition and/or disability, denying or restricting library services (including the right to simply be present in the library) on the basis of simply falling asleep could pose risks of disability discrimination.  Sleep happens, folks, and sometimes people can't help it.

So, what is the solution, here?

Well, as with many things, there is no one "right" answer.  But I will say:

1.  Every library should have a policy, or at least a "standard operating procedure" (or "SOP"), regarding "Suspected or Actual Medical Events in The Library."   That policy should address (among other things) what to do about perceived loss of consciousness or coherence by library users.[5]

2.  A" Suspected or Actual Medical Events in the Library" policy or SOP can also address incidental (meaning unintended) and deliberate use of the library for napping.
3.  This is where a library's discretion and autonomy kick in.

A library can decide if it is going to normalize sleeping in the library, or not.

If a library decides NOT to normalize sleep in the library, a simple statement such as "For assurance of safety, the library is a no-nap, no-sleep zone.  Thank you for helping us maintain this rule.  We understand that sleep happens; if you need to request ADA accommodations due to this rule, please contact NAME at INFO."   Then, as a rule, patrons who fall asleep should be awoken (just as patrons who bring food in might be asked to remove it, or patrons who don't wear shoes might be asked to put some on).

On the flip side, if a library decides, as a matter of policy, to allow users to sleep in the library[6], such a policy can also create the protocol for "safe napping," with those planning to sleep notifying staff, so the nap is not mistaken for an overdose, seizure, etc.

NOTE: Before selecting this option, a library should check with its general liability insurance carrier to make sure it is consistent with the library's risk threshold and coverage.

What does a "Suspected or Actual Medical Events in the Library" with a "sleeping" section look like?  Here is an example (with both a "sleep okay" and "no sleep" option at the end):

The XYZ Community Library is a welcoming, service-oriented, and inclusive space for all. To promote the health and safety of those using our library, the following possible medical events will result in the staff calling 911:

• Any perceived or actual loss of sustained coherence or consciousness;
• Any library user exhibiting signs that they may require emergency medical attention,

who does not expressly instruct staff that immediate medical attention is not required;

• Any person requesting emergency medical response.

Definitions

For this policy, "loss of sustained coherence or consciousness" is the inability to communicate meaningfully with library employees in the user's primary language.

For this policy, express instructions to staff that "immediate medical attention is not required" may be disregarded at the considered discretion of the library employees; such a decision will be based on consideration of: the specific facts of the situation, respect for the agency of the user, and respect for the mission and operational needs of the library.

ADA

If a library user has a medical condition that can potentially result in perceived or actual loss of coherence or consciousness, you may use the library's ADA Accommodations policy to arrange reasonable accommodations so your library experience is not unnecessarily impacted by this policy. For example, if a library user has narcolepsy and wishes to be woken in the event, they fall asleep, the library can consider a reasonable accommodation such as allowing the user to use a specific type of alarm in an otherwise quiet space.

Specific Situations

Whenever possible, the library uses the following specific guidelines from the CDC with respect to common medical events that can impact coherence or consciousness:

Seizures

Seizures do not usually require emergency medical attention. Only call 911 if one or more of these are true:

• The person has never had a seizure before;
• The person has difficulty breathing or waking after the seizure;
• The seizure lasts longer than 5 minutes;
• The person has another seizure soon after the first one;
• The person is hurt during the seizure;
• The seizure happens in water;
• The person has a health condition like diabetes, heart disease, or is pregnant.

Suspected opioid overdose
Call 911 if an overdose is suspected.

Recognizing an opioid overdose may be difficult. If it is unclear, treat the situation like an overdose and proceed with treatment. Even if the patient wakes up or seems better after one or two doses of naloxone, emergency medical assistance is still necessary.

Severely Low Blood Sugar

Blood sugar below 55 mg/dL is considered severely low. If any of the following happens, you should call 911:

• A person with low blood sugar passes out;
• A person with low blood sugar needs a second dose of glucagon;
• A person with low blood sugar had glucagon but are still confused;
• A person with low blood sugar stays too low 20 minutes after treatment or doesn’t respond to the usual treatments.

Concussion
Signs and symptoms of a dangerous concussion can include:

• One pupil larger than the other;
• Drowsiness or inability to wake up;
• A headache that gets worse and does not go away;
• Slurred speech, weakness, numbness, or decreased coordination;
• Repeated vomiting or nausea, convulsions or seizures (shaking or twitching);
• Unusual behavior, increased confusion, restlessness, or agitation;
• Loss of consciousness (passed out/knocked out). Even a brief loss of consciousness should be taken seriously.

Call 911.

This policy, and sleeping in the Library

CHOICE 1: USE IF THE LIBRARY DECIDES TO NOT ALLOW PEOPLE TO SLEEP IN THE LIBRARY Because loss of consciousness can be a sign of a medical emergency, library users are asked not to deliberately sleep or nap in the library.

If a library user is asleep in the library, staff are instructed to wake them.

In applying this rule, the library will follow the requirements of the ADA; if a library user has a medical condition that can cause uncontrollable sleep, at that library user's discretion, they may alert staff so accommodations can be made (see "ADA" above).

CHOICE 2: USE IF THE LIBRARY DECIDES TO ALLOW PEOPLE TO SLEEP IN THE LIBRARY

If you have a medical condition that can cause uncontrollable sleep, at your discretion, you may alert staff so accommodations can be made (see "ADA" above).

If you simply find that the library is a nice, quiet place for you to take a nap, please alert us that you "Plan to take a nap" so our staff knows that you are asleep by desire, and not experiencing a medical emergency causing loss of consciousness or coherence. We'll give you a nice arrangement of purple flowers[7] to keep near where you're sitting so staff know you're deliberately using the library space to rest and restore yourself.

Users must limit planned napping in the library to no later than one half-hour before close, so you have time to gather your thoughts and energy before it is time for us to close up the building.[8]

If your nap creates loud snoring or other disruption, we may have to wake you! Please be gracious to staff who are responsible for making sure the library is a welcoming and inclusive space for all.

As with any template, before adopting a policy based on this one, review the final version with your lawyer (and, as noted above, your library's insurance carrier).

And a final note: I truly wish I had a better answer to this question.  As I said at the beginning, this is a VERY sensitive issue.  But if a commitment to library access, safety, and mission guide the decision, your library can find the best answer for  YOUR library.

Thank you for this tough question.

 

MEMBER QUESTION

My institution subscribes to the "Kurzweil Reading Program", a "Text-to-Speech" product for those with reading impairments (dyslexia, English language learners, blind/vision impaired, etc.)

Section 121 indicates these users are "eligible persons" for "fair use", but others, without such disabilities could use the program (like an audiobook in the car!).

We'd be putting TEXTBOOKS up in the program; that fair use violation is what I'm worried about....

Thanks!

 

WNYLRC ATTORNEY'S RESPONSE

This question reflects the level of savvy "Ask the Lawyer" readers bring to their submissions.  The member submitting the question has already set out (in a manner much more succinct than I usually achieve) the interplay of:

• Owner's rights (Copyright Act Section 106),
• Adaptive copies made under "fair use" (Copyright Act Section 107), and
• Copies made for purposes of accommodations for disability that impacts the ability to read (Copyright Act Section 121).

I do have one quibble with the member's phrasing, though, and it is important to this particular issue: Section 121, while it allows copies otherwise barred, does not create a "fair use" right to make a copy.[1]  Rather, the creation of an adaptive copy under Section 121 is a 100% exception to infringement made under highly precise circumstances.

What are those "highly precise circumstances"?

First, as the member writes, the end-user of the copy must be "eligible"--meaning they have a disability that impacts the ability to read (for the three "ways" for a user to be "eligible", see sub-section (d)(3)(A)-(C) of the law, below). 

Second, the copies must:

"(A) not be reproduced or distributed in the United States in a format other than an accessible format exclusively for use by eligible persons;

(B) bear a notice that any further reproduction or distribution in a format other than an accessible format is an infringement; and

(C) include a copyright notice identifying the copyright owner and the date of the original publication."

And third, the maker of the copies must be an "authorized entity" (which is defined in the statute; see the definition, below[2]).

This precise formula, and the right it creates, is why "fair use" is not a part of the issue at hand (adaptive copies specifically for reading-based disabilities).  None of the above-listed requirements are required to claim "fair use" under Section 107[3]. In addition, to make a Section 121 copy, there is no four-factor "balancing" test; rather, a Section 121 use is "inherently noninfringing."[4]

The above-listed Section 121 requirements to include copyright notices are also the key to addressing the member's concern: enforcement.

When an "authorized entity" is creating Section 121-based copies for "eligible" people, the institution must put copyright notices on each copy. This sets up the institution--as either an employer or alma mater--to restrict non-eligible employees and students from using them for non-Section 121 purposes.  Further, in addition to the required notices, the institution can add additional warnings, and if needed, restrict use through technological controls.[5]

Now, how much should an institution police this?  Currently, there is no case law that turns on an alleged infringement that was committed via unauthorized use of a duly made Section 121 copy.  That said, content owners are always looking for new ways to maximize revenues, so taking care to properly designate Section 121-based copies as required by law, and using policy and posted notices to reinforce those restrictions, is a wise idea.

Thank you for a well-informed and nuanced question!

HERE IS SECTION 121 OF THE COPYRIGHT ACT:

(a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute in the United States copies or phonorecords of a previously published literary work or of a previously published musical work that has been fixed in the form of text or notation if such copies or phonorecords are reproduced or distributed in accessible formats exclusively for use by eligible persons.

(b)

(1) Copies or phonorecords to which this section applies shall—

(A) not be reproduced or distributed in the United States in a format other than an accessible format exclusively for use by eligible persons;

(B) bear a notice that any further reproduction or distribution in a format other than an accessible format is an infringement; and

(C) include a copyright notice identifying the copyright owner and the date of the original publication.

(2) The provisions of this subsection shall not apply to standardized, secure, or norm-referenced tests and related testing material, or to computer programs, except the portions thereof that are in conventional human language (including descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs.

(c) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the Individuals with Disabilities Education Act that contain the contents of print instructional materials using the National Instructional Material Accessibility Standard (as defined in section 674(e)(3) of that Act), if—

(1) the inclusion of the contents of such print instructional materials is required by any State educational agency or local educational agency;

(2) the publisher had the right to publish such print instructional materials in print formats; and

(3) such copies are used solely for reproduction or distribution of the contents of such print instructional materials in accessible formats.

(d) For purposes of this section, the term—

(1) “accessible format” means an alternative manner or form that gives an eligible person access to the work when the copy or phonorecord in the accessible format is used exclusively by the eligible person to permit him or her to have access as feasibly and comfortably as a person without such disability as described in paragraph (3);

(2) “authorized entity” means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;

(3) “eligible person” means an individual who, regardless of any other disability—

(A) is blind;

(B) has a visual impairment or perceptual or reading disability that cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or

(C) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading; and

(4) “print instructional materials” has the meaning given under section 674(e)(3)(C) of the Individuals with Disabilities Education Act.

(Added Pub. L. 104–197, title III, §â€¯316(a), Sept. 16, 1996, 110 Stat. 2416; amended Pub. L. 106–379, §â€¯3(b), Oct. 27, 2000, 114 Stat. 1445; Pub. L. 107–273, div. C, title III, §â€¯13210(3)(A), Nov. 2, 2002, 116 Stat. 1909; Pub. L. 108–446, title III, §â€¯306, Dec. 3, 2004, 118 Stat. 2807; Pub. L. 115–261, §â€¯2(a)(1), Oct. 9, 2018, 132 Stat. 3667.)

 

MEMBER QUESTION

Students in a school are reading a simultaneous use eBook. The students with IEPs[1] have access to a screen reader but this feature is very robotic and doesn't meet their needs. The school librarian and the School Library System searched for an audio version of this book but could not find one for purchase. Several students need a high-quality audio version of the book that is not robotic because of their learning needs. Would the school library be covered under fair use if they recorded a reading of the book for the students and posted it in Google Classroom for the students? This would be in a closed platform and not open to everybody on the internet.

---

[1] IEP stands for "Individual Education Program, “which is a tool used in elementary and secondary schools to effect ADA accommodations for students.  For more info on that, see https://www2.ed.gov/about/offices/list/ocr/504faq.html.

 

WNYLRC ATTORNEY'S RESPONSE

The school may be covered by Fair Use but for this scenario, it doesn't need to be in order to make the recording proposed by the member.

Why?

Because Section 121 of the Copyright Act allows "authorized entities" (like schools serving those with IEP's)[1] the right to make a copy in an "accessible format" (like an audio file) for "eligible persons" (like a student with an IEP), without it being an infringement.

Of course, there's always a catch.  In addition to precautions like the one described by the member (limiting access to only those who need it), the exception under Section 121 has other requirements, such as:

• The accessible copy has to have a copyright notice.
• The accessible copy has to have a note stating no further copies are authorized.
• It doesn't apply to computer programs.[2]

I am putting a copy of Section 121, which was most recently amended in 2018, below this answer, so members can review its requirements and consider how it might apply in their institution.

Now, I will say that if there wasn't a Section 121, there is a strong chance the format conversion described by the member would qualify as a Fair Use.  In fact, the 2nd Circuit Court of Appeal, which is the first level of appeal for copyright cases in New York State, has found Section 121's to bolster educational institutions' claims of Fair Use.[3]

But between a rock-solid exemption like Section 121, and a shifting, 4-part formulaic one like Section 107 ("Fair Use"), I say: go for the rock-solid exemption. 

The law takes assured access for those with disabilities seriously, and that regard is important to strengthen through robust and repeated use.

Thanks for a valuable and carefully thought-out question.

 

Here is the full text of section 121:

(a)

Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute in the United States copies or phonorecords of a previously published literary work or of a previously published musical work that has been fixed in the form of text or notation if such copies or phonorecords are reproduced or distributed in accessible formats exclusively for use by eligible persons.

 

(b)

(1)Copies or phonorecords to which this section applies shall—

(A)  not be reproduced or distributed in the United States in a format other than an accessible format exclusively for use by eligible persons;

(B) bear a notice that any further reproduction or distribution in a format other than an accessible format is an infringement; and

(C) include a copyright notice identifying the copyright owner and the date of the original publication.

(2)The provisions of this subsection shall not apply to standardized, secure, or norm-referenced tests and related testing material, or to computer programs, except the portions thereof that are in conventional human language (including descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs.

 

(c)

Notwithstanding the provisions of section 106, it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the Individuals with Disabilities Education Act that contain the contents of print instructional materials using the National Instructional Material Accessibility Standard (as defined in section 674(e)(3) of that Act), if—

(1) the inclusion of the contents of such print instructional materials is required by any State educational agency or local educational agency;

(2) the publisher had the right to publish such print instructional materials in print formats; and

(3) such copies are used solely for reproduction or distribution of the contents of such print instructional materials in accessible formats.

 

(d)For purposes of this section, the term—

(1) “accessible format” means an alternative manner or form that gives an eligible person access to the work when the copy or phonorecord in the accessible format is used exclusively by the eligible person to permit him or her to have access as feasibly and comfortably as a person without such disability as described in paragraph (3);

(2) “authorized entity” means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;

(3)“eligible person” means an individual who, regardless of any other disability—

(A) is blind;

(B) has a visual impairment or perceptual or reading disability that cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or

(C) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading; and

(4) “print instructional materials” has the meaning given under section 674(e)(3)(C) of the Individuals with Disabilities Education Act.

MEMBER QUESTION

We had a patron come in this past week who said that he couldn't see well and also couldn't type or use a mouse, but he needed to certify Unemployment Insurance. He asked the staff member to login with his username and password and do this for him, and the staff member was, understandably, uncomfortable doing it.

I feel like patrons who divulge their personal data to us are doing it of their own accord and our privacy responsibility is to not share that information with others without the consent of the patron.

In this particular case, the patron was offering his information and consenting for us to enter it for him. As such, I don't think this violates any privacy agreement we have made as employees of the library.

The part that I worry about is, could this come back on an employee if they are doing a legal filing for a patron and the filing may be fraudulent? I am optimistic by nature and like to think people have good intentions, but the reality is, I know this happens. I wouldn't want to put an employee in a sticky legal position if they filed what might turn out to be a fraudulent claim for someone.

Do you know of similar situations in other libraries and what, if any, legal ramifications there might be for employees who could be caught in the middle of something like this?

WNYLRC ATTORNEY'S RESPONSE

At first glance, this question seems simple: what are the possible legal risks to a librarian helping a patron fill out a legal document?

But within this question lies another, slightly more complex issue: when does good customer service become an accommodation for a disability?

This "slightly more complex" consideration is brought up by this part of the member's scenario:  "We had a patron come in this past week who said that he couldn't see well...", potentially meaning: the patron could not access the library services (use of the computer and internet) without assistance, because of a disability.

Of course, not every visual limit is a bona fide disability (I have to take off my glasses to read these days, but that does not entitle me, by law, to an accommodation under the ADA).  However, a patron requesting help to access a library service due to "low vision" (meaning that patron cannot view the screen even with corrective lenses), is potentially requesting an accommodation.

This is because "low vision" can be "a physical or mental impairment that substantially limits one or more major life activities," (which is the ADA's definition of a disability).

For patrons with "low vision," an ADA accommodation can take many forms aside from a human-powered solution, including:

• Ensuring computers have increased operating system font size with large-size computer monitors
• Screen magnification software
• Locator dots and/or large print keyboard labels for keyboard navigation
• External computer screen magnifier[1]

What accommodations a library chooses to offer to someone needing an accommodation to access library services will vary based on that library's size, type, served population, and (of course) budget. [2]  For some libraries, the "human solution" will be the only one available...which creates dilemmas like the one shown in the member's question.

Okay, let's press "pause" on the ADA aspect (we'll come back to it) and return to the original, simple question: what are the possible legal risks of a librarian helping a patron fill out a legal document?

The risks, of course, are that if the patron is accused of fraud, identity theft, or any other illegal activity based on the form's contents, it could lead to complications for the library (and thus, potentially, the employee).

Of course, most types of crimes based on fraud, false personation, and identity theft turn on the awareness and intent of the involved parties. Basically--and this is a big paraphrase--so long as a person can show they had no awareness or intent to help with a crime, they will have a defense against such an accusation...especially if they are performing the action as part of a duty in their job description.

But how can a library avoid such accusations against its employees in the first place?  This is where we take the ADA aspect off "pause," and consider how a library's policies can set firm boundaries for good customer service, while also facilitating accommodations for disability.

How is that done? Many libraries already have a version of this approach, but here's my plain-language version of a policy:

Library employees are here to help patrons use library resources, but librarians and library staff may not interpret, provide guidance, or fill in forms for patrons.

Patrons who need assistance filling in a form or completing a document due to uncertainty about the content are welcome to ask librarians for help locating the instructions or contact information for assistance.

Patrons who need assistance filling in a form or completing a document on the library's computer or other resource as an accommodation for a disability, please alert the Director or [insert alternate, accessible means], so the Library may act on the request per the library's ADA policy.

So, to be clear, my answer to the member's overall question is: to avoid doubt, librarians should never help patrons fill out the answers on legal forms if the help is just part of good customer service.[3]   HOWEVER, librarians absolutely can read the content and type substantive answers on a patron's legal forms if the library decides (and documents) that it is providing the assistance as part of a reasonable accommodation for a disability.

When considering employee-powered assistance as a form of accommodation, part of evaluating the request must be consideration of how it can be fulfilled ethically.  For instance, a person providing an ADA accommodation as an ASL Interpreter must follow the Registry of Interpreters' Code of Ethics[4] (or other professional association).  A person providing an ADA accommodation as a "reader" for a person who is blind or has low vision should not offer guidance or commentary on the content--their role is limited to reading, and perhaps typing, based on verbal prompts from the accommodated party.[5]  A person typing because the library's only keyboard is inaccessible to the patron and the library has no dictation software should similarly only type as an accommodation, and not offer comment or guidance. [6]

Some libraries, looking at the range and requirements for certain types of human-powered accommodations, may decide they do not have the staff capacity to provide such resources.  Others will say (and support by well-developed policy): sure, we can do that, here's how.[7]

The important thing, no matter what the decision is, is to keep a record as to why a library employee (or contractor) would assist a patron with filling out and/or submitting a confidential or legal document.  Since the only reason should be as an accommodation, that reason should be documented in either the policy (for instance, if the library has a standard service) or as an ad hoc request.

Thank you for a very compassionate and thoughtful question.