I am of the understanding that NYS departments documentation falls under public domain. Can you provide any insight into this? Thank you!
I can most certainly provide some insight on this topic. But first, some terminology...
For readers who don't know, the "public domain" is the "place" distinct works of authorship (poems, paintings, books, etc.) go to when they are no longer protected by copyright. When a work is "in" the "public domain" it means it can be used without fear of copyright infringement.
Some works are "put" into the public domain by generous authors or owners, who want to optimize access. Some works "fall" into the public domain due to failures of proper registration, or other factors that can vary by countries of origin. And some works are "born" in the public domain...meaning that they have never been subject to copyright protection, even if they are sufficiently original to qualify for it.
A big example of this last category--works "born" in the public domain-- are works authored by the federal government, which are governed by Section105 of the Copyright Act ("United States Government Works"), which flatly states "Copyright protection under this title is not available for any work of the United States Government."
Of course, just because an entity can only create works in the public domain, doesn't preclude another avenue of copyright ownership. This is also illustrated by Section 105, which, after barring the feds from creating works protected by copyright, adds that the U.S. Government "is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise." In other words: you can't make 'em, but you can get 'em.
This can lead to ownership pictures like the following scenario: if I work for the U.S. Department of Transportation, and as part of my job, I write a poem about Daylight Savings Time[1], then that poem is not protected by copyright. If, however, I am a free-lance marketer, and the Department of Transportation contracts with me to create that same poem[2] as a work-for-hire, then it can be protected by copyright, even if I assign it to the U.S. Government per the requirements of the contract.
The Copyright Act, however, does not contain a similar provision limiting the ability of states to own copyrights (this makes sense, since states can get snippy when the federal government tries to strip them of assets).
Of course, individual states, on their own, can disclaim ownership of copyright...a nice thing to do, perhaps, when content creation is funded by public dollars. Here in New York, however, such a disclaimer is not a uniform rule...and in fact, the rule is just the opposite.
In the federal government's Copyright Registry, the "State of New York" is the registered author, and/or owner, and/or prior owner, of many copyrights, including this one:
In the registration shown above, the "State of New York" is listed as the author of the registered work as an "employer for hire"...meaning that the State is not only positioned to author original works that qualify for protection, but can even assign those copyrights just like any other free-lancer.[3]
Of course, much of the text generated and maintained by the State of New York is intended for public use, and in some instances, the State has declared it to be "in the public domain".
For example, in 1973, the New York State Attorney General declared that all New York "codes, rules and regulations" are in the public domain and are not subject to copyright (which makes sense; how can a lawsuit be filed if quoting too much law was an infringement?). On the same opinion, however, the NY Attorney General stated that material included in an official compilation of the codes, rules and regulations--but not actually part of the text--is protected by copyright of the Secretary of State (this is what is shown in the registration above).
So, what insight does that give us? The State of New York (and any department thereof) can both own works protected by, and generate works subject to, copyright. Some state-authored materials, however, may be deemed to be in the public domain. There is no over-arching rule; it is content-specific. So, when using works generated or published by the state, caution is just as warranted as with any other author.[4]
Thank you for a great question!
[1] Your tax dollars at work!
[2] Here it is (for more info, visit https://www.transportation.gov/regulations/time-act)
The Uniform Time Act of '66
Created nine zones to restrict
Local authorities who set their clocks
At a sunshine whim, creating blocks
To orderly travel and safe crossroads
'Til somebody had to take control...
Who are these chronoscient powers-that-be?
The Time Lords at the USDOT
[3] If anyone wants to FOIL a copy of that work-for-hire contract, I would love to take a look at it. Maybe if we get an intern....
[4] [4] The library community seems to be investigating this topic perpetually. And good news, helpful resources/guides have ongoing development. For example, the article “The state copyright conundrum” by Kyle K. Courtney (https://crln.acrl.org/index.php/crlnews/article/view/17438/19245) describes context around the uncertainty in government document copyright status as faced by librarians and archivists, and points to this resource made by a 2014 Harvard Library Office for Scholarly Communication, Copyright Fellow, Katie Zimmerman: “State Copyright Resource Center”, http://copyright.lib.harvard.edu/states/. Bonus points for the beautiful functionality of the interactive U.S. map, that leads to state-specific guidance on govdoc copyright considerations.
Tags: Archives, Copyright, Legal Poems, Public Domain
Is bonding recommended for small public library director?
I won't tease the readers here; generally,[1] the answer is "no."
There are three reasons for this:
Reason 1: a public library director, unlike a library system treasurer and other local "public officers" isn't required by law to carry a bond.
Reason 2: If a public library has the right fiscal controls in place (meaning the director is never solely entrusted with fiscal authority--something that should never happen), there should be little risk of the type "bonding" is designed to mitigate.[2]
Reason 3: the majority of alleged wrong-doing by a public library director should be covered by a library's "Directors and Officers" and "General Liability" Insurance.
For this reason, while "bonding" is not required for most public library directors, a library having adequate insurance is critical.
This is why understanding the scope and costs of a library's "Directors & Officers Insurance," as well as its "General Liability" and "Premises Liability" policies, are critical annual tasks for a library board.
This type of assessment should happen every year with enough time to make sure the library can arrange new coverage if the answers are inadequate or the rates aren’t that competitive (no less than four months before renewal).
Questions to ask the broker should be based on a board's assessment of "what could go wrong?", and can include things such as:
Does our policy cover claims of discrimination, including sexual harassment?
Does our policy cover employee theft?
Does our policy cover alleged copyright and trademark infringement (or "advertising injury")?
Does our policy cover data breach of computers controlled by the library?[3]
What types of claims are excluded?[4]
What is the deductible?[5]
What is the process for reporting possible claims?
Insurance matters are complex and assessing coverage can present a lot of legal and industry jargon.
So, as a primer on the interrelationships and differences in "library world” between 'bonding," "insuring," "indemnifying," "hold harmless" and "Directors and Officers insurance" here is a short poem:
Library bonding, insurance, indemnifications...
What the heck are the differentiations?
Although the distinctions could fill a tome
Here are four rhymes to bring it home:
Director, officer, trustee...
should be insured against liability;
For anyone who with responsibility
The coverage can offer indemnity.
If your library will undertake construction
A performance bond should guarantee completion.
If you need to raise some building money
An approved "bond" can bring the honey.
For a library system treasurer[6]
An "undertaking" you must procure.
For all of these, routine review
Is something that a board should do.
[1] There is always an exception to what is "generally" true in the law. For instance, a large library that puts additional fiscal responsibility on the library's executive director could require such a thing. But that would be the exception...to find out why, keep reading.
[2] What is "bonding" you ask? I have a short poem for you (see below).
[3] Many times, it is the cooperative library system's computers that need this coverage...an arrangement that varies from system to system in New York.
[4] This is a critical consideration!
[5] This one is important! If you have a $75,000.00 deductible, for many claims, you might as well not have coverage.
[6] Actual requirement for a treasurer of a cooperative library system is: "Before entering upon his duties, such treasurer shall execute and file with the trustees an official undertaking in such sum and with such sureties as the board shall direct and approve. The treasurer need not be a member of such board."
Tags: Legal Poems, Liability, Public Libraries
Our Board of Trustees is searching for a new director. Our Library has transitioned from a very small building to a modern, significantly larger building. As a public library, the school district we serve has a population of more than 18,000. Our former director did not have a contract. Some trustees have expressed the desire to make a contract with the candidate selected to serve as the next Library Director. We have received conflicting information about how common such contracts are. We don't want to devote time and energy to drawing up a contract that holds no value in the end. How common and necessary is it to have a Library Director contract for a public library serving a community of our size?
Regular readers of "Ask the Lawyer" know one of the cardinal rules is: "Do not reinvent the wheel." So, before working on this reply, we[1] checked the "NY Library Trustees Handbook (2018),"[2] which has a whole section on hiring library directors.
The Handbook does not reference how "common" having a contract for a library director is, but on page 46, it does emphasize the importance of using a "hire letter" or "memorandum" or "contract" to confirm the hiring terms.
This is wise counsel. So, before we build on it to answer the member (and we will!), let's (briefly) talk about the difference between hire letters, memorandums,[3] and contracts.
As most readers likely know, New York is an "at will" employment state. This means that, barring illegal[4] factors, an employer is free to terminate an employee as needed--and similarly, an employee is free to resign. Most "hire letters" confirm "at-will" employment.[5]
An "employment contract," on the other hand, puts more bells and whistles on the relationship. It can address a range of things, including the parties' ability to terminate the relationship, and can alter (for a particular employee) the application of an employer's policies.[6]
Typical clauses in employment contracts for library directors are:
Of course, the above-listed items are just examples.
So, how does a library board know when to use a contract?
There are too many factors to list, but here is a tool for assessing if a contract is the right approach to locking in employment terms between a library and director:
|
Factor |
Comment |
Yes |
No |
|---|---|---|---|
|
1. Is your library seeking the stability of a long-term commitment from its director? |
Sometimes, even the promise of a year's service can lend stability...and a term can be as long as five years (or more...but five is a nice start). |
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2. Is the library about to undertake an initiative where the specific candidate’s skills and experience are a necessary asset? |
For instance, if the library is overhauling its approach to IT over the next 5 years, and the candidate has specific prior experience with that type of project. |
|
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3. Is the search process unusually challenging for your library? (due to geography, etc.) |
If every search costs time, money, and (most importantly) impacts services to the community, finding a way to get added stability may be worthwhile not only financially, but for the sake of the library's mission. |
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4. Are you more likely to retain a desirable director if you offer the protection of a contract? |
The possibility of a contract can be an aid to recruitment. If the job advertisement sets out the potential for greater stability, it might attract a more qualified candidate pool. |
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5. Will being able to tout having a director under contract help during budget and funding initiatives? |
This could be a double-edged sword! If the contract helps with cost containment, it's a benefit. If it could be portrayed as excessive or unnecessary, it can backfire. |
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6. Will the library be channeling extra resources into professional development for the director, and thus want assurance of a return on investment? |
This is a consideration where, if done right, the contract creates a win-win (the library director gets the benefit of development, and the library gets stability of an increasingly qualified director). |
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7. Will it help employee morale to know there is stability in the director role? |
This can be another double-edged sword, depending on the relationship between the director and the other employees. |
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8. Will having the director under contract help with union negotiations? [skip if no union] |
This may be a neutral factor, but certainly one to consider if there is an employee union. |
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9. Does the board want to be able to link compensation to specific objectives in an enforceable way? |
A good contract can also serve as a planning tool. |
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10. [If director already employed by library] Has the director been successfully employed by the library for a while, but the library seeks greater assurance of retaining them?
|
Converting a successful at-will employee to a contract employee is another way to ensure stability. If a system of progressive raises or bonuses is used, it can aid retention. |
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|
If your library answered "yes" to one or more of the above factors, it might be worth considering using a contract! This is true even if no other library you know of is doing so (or if they all are).
That said, like all things that create obligations, a contract requires CAUTION. Here are some factors to consider before a library decides to use a contract:
|
Factor |
Comment |
Yes |
No |
|---|---|---|---|
|
1. Does the board have what it takes to conduct a search that meets the objectives of the contract? |
If the candidate pool is not robust, a contract cannot make things better. |
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|
2. Does the board have the capacity to pay attention to the compliance factors in the contract? |
If the board doesn't follow the contract, it is dangerous to have one! |
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3. Does your board have the capacity to engage a lawyer to generate a custom contract? |
A lawyer will look at the library's unique features, and the objectives of the board, to draft a contract. The lawyer should also be ready to help the board negotiate. Ideally, the first draft of the contract should be ready BEFORE the job is posted. |
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4. Does the library's financial position allow it to make the financial commitments the contract would create? |
This should be confirmed by the Treasurer and the auditor before any offer is made. |
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5. Does Civil Service impact the terms of employment? |
If yours is a non-association library, check with your local Civil Service rep to make sure the rules for hiring, discipline, promotion, and compensation are all honored in the contract (the lawyer mentioned in #3, above, can do this for you). |
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6. Is there anything in the enabling legislation, charter, bylaws, policies, or current Plan of Service that would deter using a contract? |
This question is really one for the lawyer drafting the contract, who should review these documents before preparing the draft, but it is worth considering at the starting point of the process. |
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If the answer to any of the above questions is "no," a board should consider if additional steps need to be taken before deciding to offer a director an employment contract. Employment contracts are like houseplants; although they largely just sit there, they need attention from time-to-time.
And that's my answer to the member's question; not based so much on what is "common", but definitely based on what might be "necessary" for a particular library.
Thanks for a great question, and good luck with your search.
BONUS CONTENT
If there are three take-aways I hope this answer conveys, they are:
1) a contract for a library director can be a positive and helpful thing for both parties;
2) before offering or requesting a contract, a board or director should know what they want, and why (and if a contract can fulfill that); and
3) never, never, NEVER use a generic contract from the internet...always have a draft contract reviewed by a lawyer[8] before it is offered.
To help emphasize these three take-aways, here are three limericks:
A pro-active library board
Over its strategy pored
"We seek a director
who has it together
Should a contract be offered?"
The board then decided "Why yes,
Our new person must fix quite the mess
So we'll set some terms
That our contract confirms
To address our points of high stress."
The right fit was finally found
A lawyer said the contract was sound
So to the future director,
A contract was sent o'er,
And now they are legally bound!
Did this trio of limericks skip the part of the process where the parties negotiate back and forth, and the contract is (hopefully) signed? Yes.
But hey... the top 3 take-aways are in bold. That's what's important. Please let us know if they are helpful.[9]
[1] Who is "we"? The staff at the law office, and in this case, a call to the director of the council whose member sent in the question.
[2] Found as of June 2, 2022, at https://www.nysl.nysed.gov/libdev/trustees/handbook/index.html.
[3] The term "memorandum" is not a legal term. If a "memorandum" of hire only confirms that the position is at will, it is at-will. If the memorandum adds to the rights and/or obligations of the parties, it is a contract. For this reason, I discourage use of the term "memorandum" to confirm hiring terms.
[4] Like discrimination, retaliation, and contract violation.
[5] These days, they also fulfill state legal requirements to confirm the date of hire, the rate and frequency of compensation, and the identity of the employer. For more on this, see the state's "wage theft" rules explained here: https://dol.ny.gov/system/files/documents/2022/05/p715.pdf.
[6] Most employee handbooks will have language confirming that the board can change the policy at will and nothing in the manual is to be taken as creating a contract; this is to preserve the "at will" arrangement. Any employment contract should consider how it works with an existing or future employee handbook.
[7] Assurance of such coverage is not needed for most "Directors and Officers" (or "D&O) insurance to cover a director, but considering the extent of D&O coverage is an important annual task for the board.
[8] Who knows about both employment law and libraries.
[9] Feedback can go to info@losapllc.com.
Tags: Board of Trustees, Employment, Legal Poems, Library Employment Contracts , Public Libraries
I am a Trustee on the Board of our library. I also serve as the Secretary to the Board. As such, I do the note-taking and draft the meeting minutes for every board meeting. Do I need to retain my handwritten notes, once I have transcribed them into document format? If so, how long must they be kept and where? FYI, the minutes are drafted, approved by the Board, then uploaded to the library website where they are available to the public.
Thanks for your consideration. Much appreciated.
This question comes to "Ask the Lawyer" from a public library.
As quasi-governmental entities, public libraries must follow a precise array of law, regulations, and rules for record-keeping. We'll delve into that for those factors to answer this question.
What does that mean for association libraries, who can be a bit more free-wheeling in their records management? This answer doesn't (quite) apply to you, but stick around, we'll make it worth plowing through the next few paragraphs.
Governments and "quasi-governmental"[1] entities, like public libraries, are subject to the requirements of Article 57-A of the New York "Arts and Cultural Affairs Law" ("57-A") which requires officers to "maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible."
57-A also gives the NY Commissioner of Education the right (and obligation) to set the period of retention for different types of records. The current collection of these retention periods is the LGS-1, on which "Ask the Lawyer" has written admiringly[2] before.
The LGS-1 does have a specific section for libraries and library systems (rules #590-603, which every public library should be following), but it is silent on the topic of board meeting materials, which means that the more generic section 48, "Meeting files of governing body or board or agency, commission or committee thereof, including agendas, background materials and other records used at meetings" applies.
Rule 48 states that the retention period for "[t]emporary drafts or personal notes that were not circulated, reviewed, or used to make decisions or complete transactions" is ZERO "after no longer needed."
So: as long as the hand-written notes are considered a "temporary draft" or "personal notes" as part of the creation of the actual draft minutes (the retention of which is "PERMANENT" per Rule 47), they may be shredded after the draft minutes are typed up as described by the question.
BUT, I offer caution: if the hand-written draft minutes are used for any purpose other than to create an exact typescript version, including but not limited to interim decision-making before the next board meeting, or to inform the process of passing the official minutes, then they are transformed into something different than personal or temporary notes, and I advise they be retained together with the other permanently retained public library board meeting materials...which also makes them subject to FOIL.
Sounds complicated, right? Below is a poem to help you remember (association libraries, the last four lines are for you, too...I told you it would be worth sticking around):
A public library's records must stay
At the library per A and C Law 57-A;
The retention of those library records is done
For a period set by the LGS-1;
And the public can demand to see
Those records by asking for a FOIL copy.
Chartered libraries of any kind
The Open Meetings Law must mind
And the docs the board will see
Must be shared with the community.[3]
In all of this, personal notes
turned into minutes per trustee votes
When no longer needed, can be disposed
...so long as notes were all they posed.
Hmm. Maybe it's just easier to read the law and rules? Just in case, I have put them below.
Thanks for a great question, and thank you for your service as a conscientious trustee and officer!
The law:
§ 57.25. Records retention and disposition
1. It shall be the responsibility of every local officer to maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible; to retain and have custody of such records for so long as the records are needed for the conduct of the business of the office; to adequately protect such records; to cooperate with the local government’s records management officer on programs for the orderly and efficient management of records including identification and management of inactive records and identification and preservation of records of enduring value; to dispose of records in accordance with legal requirements; and to pass on to his successor records needed for the continuing conduct of business of the office. In towns, records no longer needed for the conduct of the business of the office shall be transferred to the custody of the town clerk for their safekeeping and ultimate disposal.
2. No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education. The commissioner of education shall, after consultation with other state agencies and with local government officers, determine the minimum length of time that records need to be retained. Such commissioner is authorized to develop, adopt by regulation, issue and distribute to local governments records retention and disposition schedules establishing minimum legal retention periods. The issuance of such schedules shall constitute formal consent by the commissioner of education to the disposition of records that have been maintained in excess of the retention periods set forth in the schedules. Such schedules shall be reviewed and adopted by formal resolution of the governing body of a local government prior to the disposition of any records. If any law specifically provides a retention period longer than that established by the records retention and disposition schedule established herein the retention period established by such law shall govern.
The "Meetings/Hearings" provisions from LGS-1
47 CO2 1, MU1 1, ED1 1, MI1
1 Official minutes and hearing transcripts of governing body or board, commission or committee thereof, including all records accepted as part of minutes: RETENTION: PERMANENT
48 CO2 3, MU1 3, ED1 3, MI1
Meeting files of governing body or board or agency, commission or committee thereof, including agendas, background materials and other records used at meetings
NOTE: Appraise these records for continuing administrative or historical value prior to disposition. Agendas may have continuing administrative value and may be useful for accessing information in unindexed minutes and for indexing those minutes. Other records prepared for or used at meetings may have administrative or historical value for documenting issues discussed at the meetings and referenced in the minutes.
See item no. 47, above, for records which are accepted as part of the minutes.
a Records not accepted as part of the minutes, including agendas, background materials and other records used at meetings: RETENTION: 1 year
b Temporary drafts or personal notes that were not circulated, reviewed, or used to make decisions or complete transactions: RETENTION: 0 after no longer needed
[1] I use "quasi-governmental" because public libraries fall into (and out of) different categories of "government" or "public" law depending on the legal issue. For instance, public libraries are subject to the Freedom of Information Law ("FOIL"), which is part of the Public Officers Law, but the board of trustees must also abide by the NY Not-For-Profit Corporation Law. There are good reasons for this, but it can make things complicated.
[2] Some people are fans of opera, or sports teams. I am a fan of meticulously categorized retention periods.
[3] For more on the application of the Open Meetings Law and the new(ish) requirements regarding board meeting materials, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/238.
Tags: Board of Trustees, FOIA/FOIL, Legal Poems, LGS-1, Open Meetings Law, Public Officers Law, Record Retention
The library (school district public library without a union or a bargaining agreement and less than 50 employees) offers paid sick leave for most employees. However, based on what we have learn we have paid people, without it coming off of their earned sick time, if they are told to quarantine because they have been exposed to the virus. Does the same hold true for someone who is out sick because they have the virus?
I have looked at the Ask a Lawyer FAQs, the various federal and state sites and issues of the HR Specialist Employment newsletter and do not see a clear answer.
I can offer a simple answer, and a complicated answer.
Here is the simple answer:
Per the "COVID-19 Sick Leave Law":
The current requirement of a public employer is 14 days of PAID leave for quarantine/absence due to COVID-19.
A private employer with under 10 employees must provide unpaid sick leave for the entire period of quarantine, during which time the employee can apply for Paid Family Leave benefits ("PFLA").
A private employer with between 11 and 99 employees, or with fewer employees, but at least $1 million in annual revenue, must provide 5 days of paid sick leave, after which the employee can apply for PFLA for whatever time they need to be out.
For employers with more than 100 employees, the employer must give 14 days.
In all instances, the time out for COVID must not count against other accrued sick leave.
And that's it.
The complicated answer
As you can see, the obligations under the Covid-19 Paid Sick Leave Law depend on the type and (if private) the size of the employer.
So, is your library a "public employer?"
The definition of "public employer" in this law is broader than in many other labor-related laws, so unless your library's HR and employment arrangements are 100% separate from those of the local municipality or sponsoring district, it is wise to consider this applicable (or get it in writing from your lawyer that it isn't).
Since the library that submitted the question is offering paid sick leave for "most" employees--which means there is a different approach for different employees--it sounds like they have decided the library is not subject to Labor Law 196-b (New York's new "Sick Leave Law"), which applies to only private employers.
This issue is not an atypical one in New York's "Library land." Does your library use comp time instead of overtime? That is an option available only to government employers. Does your library use the federal rather than the state minimum wage? Only a government employer can do that. Does your library not have to follow the Wage Theft Prevention Act? Employers are only exempt if they are a government employer. The list goes on and on.
[NOTE: A nice exception to this dichotomy is worker's compensation for work-related injury. EVERYONE has to pay into worker's comp; you could say it is something New York employers all have in common].
The bottom line on this "complicated" answer? Make sure your library has clarity about which employment-related laws it decides that apply to it before it implements a COVID-19 Paid Leave policy based on them. And when in doubt, have a lawyer examine the compensation and other aspects of your library's employment arrangements to make the decision that is most consistent with its other employment-related practices.
Thanks for a great question. And if this "public/private" employer issue has you flummoxed, here is a short poem to help out:
Library Labor Law Chanty
What law governs at my library?
What labor laws must we abide?
What legal authorities preside?
Sorry, there's no simple rule
Be you association, town, or school
But here's a few comforting rhymes
To get you through confusing times:
An oath of office is required
When a public library director's hired
Civil service law protects employees
Except at association libraries
Must my library pay state minimum wage?
YES (unless only the FLSA is your gauge)
Do we have to pay overtime?
Not if you're municipal AND grant comp time.
The new sick leave law pays workers' rent
Unless your (sorta) government
And no matter who gets COVID-19
Employees ALL get paid during quarantine.
What if we offer NYS retirement?
Just that doesn't make you government.
But if HR's handled by your municipality
You might just be a public agency.
What if there's a union contract?
That can change everything, that's a fact.
And don't forget your HR handbook
Should be based on the "type" of path you took.
Yes, there IS legal variety
caused by the "types" of library
But despite inconsistencies
One thing's always true: director hired by trustees.
And regardless of type or identity
And despite any support or interdependency
No matter what your answers to the questions three
Your library has... autonomy.
Tags: COVID-19, Emergency Response, Employee Rights, Labor, Legal Poems, PTO, Vacation, and Leave, Sick Leave, Workers Comp
Should what we think of as the personnel policy be called Employee Handbook or Personnel Policy?
Sometime in the past, legal counsel advised a library system I was involved in, that the term "Employee Handbook" is correct. The document under now review at my library has what amounts to the rules of employment - typical sections about what the library provides, what we expect the employee to do etc. and does have a page acknowledging receipt of the document.
So what should it be called?
Thank you!
Ooh, an ontological question!
I am not sure about the basis of the past legal input mentioned in the question, differentiating a "policy" from a "handbook," but I (mostly) agree with it.
I (mostly) agree with it because, in both state and federal labor law, the term "policy" is generally used to refer to a stand-alone set of rules governing the terms of employment.[1] Examples of policies required by law include:
In both common usage and in the law, when such policies are gathered together, they become a "Handbook."[5] Many times, at the advice of lawyers,[6] employers then annually distribute a copy of this "Handbook," and (as in the member's question), require employees to acknowledge it.
The tricky thing is that once an employer has taken the step to pull the policies and create a "handbook" (again, with the name not being important...the important part being that there is some collection of policies, distributed to employees), the law may put additional obligations on the employer regarding the content.
For instance, Labor Law Section 203-e (6), which bars discrimination on the basis of an employee or their family member using reproductive services, states: " An employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under this section" [emphasis added]. In other words: if the company has no handbook, there is no mandatory inclusion of the notice...but if there IS a "handbook," the notice must be part of it.
The term "handbook," used to mean a collection of employee policies, is also part of the recently passed HERO Act.[7] It takes the same approach as Labor Law 203-e: if a handbook is handed out to employees, the required Airborne Infectious Disease Plan must be distributed with it (or at least, in the same manner as it is distributed).
Now, for the member's precise scenario: What about when a document that really is just one "personnel policy," but has different sections/rules and a section for the employee to acknowledge receipt?
Based on how the various employment laws in New York use "policy" and "handbook," I feel very comfortable saying that any document that aggregates an employer's rules on more than one topic (say, "progressive discipline," "appropriate attire" and "vacation") and is distributed to employees is--no matter what you call it--a "handbook."
Or as I have put in this illustrative limerick:
One rule to another said: "Look,
Here's something that has me quite shook
We rules stand alone
In a "policy zone"
But together, we are a handbook!"
Thank you for a chance to do this research and to write this dubious verse about it.
[1] Of course, "policy" is also used in other ways in the employment context. A big example: it is often used in the NY Civil Service Law, which frequently refers to the development of "policy" (meaning governmental positions). Second, it is used in the context of different types of insurance required of employers (a workers' compensation insurance policy, a paid family leave act policy, a disability insurance policy...etc.).
Huh. I have never thought about it before now, but we should really develop some more refined terms for different "policies."
[2] New York Labor Law 201-g
[3] New York Labor Law 218-b, aka the "HERO Act" (for more on that, see Footnote #7.)
[4] New York Not-for-Profit Corporation Law Section 715-b requires this of every not-for-profit that has "twenty or more employees and in the prior fiscal year had annual revenue in excess of one million dollars."
[5] Or an "Employee Manual" or a "Company Manual" or whatever the employer wants to call it.
[6] The legal bases for why this acknowledgement is advised will vary based on the Handbook/Manual's contents and the employer's industry.
[7] For more on the HERO Act, see "Ask the Lawyer" RAQ here: https://www.wnylrc.org/ask-the-lawyer/raqs/226
Tags: Employment, Labor, Legal Poems, Management, NY Labor Law, Policy
First question…
Our library will be hosting a live music event in the local auditorium this summer. The musicians are all local (one is a library employee). The performers are all volunteering their time and there will be no admission fee to attend the event. Do we need special licensing if the musicians perform covers of published songs? Is licensing needed for a performance if it is all original music? If covers are done would making an announcement that no recordings are to be made safeguard against copyright infringement?
Second question…
When a library schedules a live musical performance what should they be concerned about in terms of public performance? Does the library need to have any coverage in place if the musical group is playing covers of song by other artists? Is it the musical groups responsibility to obtain that permission? In this instance a local television news crew would like to cover parts of an event with musical performances. The concern is that some of the artists will be playing music that they may or may not have the rights to. What should the library consider in this situation? Even if the news crew was not covering the event, is there some type of infringement the library should be concerned about?
It's a musical double act at “Ask the Lawyer” today!
Libraries are hitting their stride as community centers and curators of cultural experience, so it is no surprise that live musical performances are being offered as part of their programming and outreach.
These two members’ questions arrived within one week of each other.
The first question is like a good pop song: a straightforward premise, with an array of practical (but catchy) sub-questions.
The second is more like the best jazz performance: concerned with the “notes that aren’t there,” and basically asking: “what could go wrong?”[1]
To address both submissions, Ask the Lawyer presents: “Ask the Lawyer Library Live Musical Performance Matrix,” and some additional guidance, below.
|
Copyright And Performance Factors |
All songs composed by performers |
Some songs composed by others (some “covers”) |
All covers |
Karaoke |
|---|---|---|---|---|
|
Admission charged for profit |
Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.
|
Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit. |
Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit. |
Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.
|
|
Performers are paid
(whether or not admission is free) |
The contract between the performer and the library, Friends or other benefactor group should specify that all songs are owned by the performers, and ideally gives maximum rights to record the performance and use the footage to raise funds for the library. |
The contract between the performer and the library, Friends or other benefactor group should specify that if the performance of songs owned by a third party is recorded, proper licensing was obtained by the performer or venue, and the performer indemnifies the library for any claim of infringement.
|
The contract between the performer and the library, Friends or other benefactor group should specify that if the performance of songs owned by a third party is recorded, proper licensing was obtained by the performer or venue, and the performer indemnifies the library for any claim of infringement. |
The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license held by the provider. |
|
No compensation to performers
AND
Admission is free |
This group wrote their owns songs, and they are willing to perform for free? They must love the library! Just make sure your library also has a contract confirming 100% ownership of songs and addressing other priorities (see “contract” comments below chart).
|
Okay if performance of covers is not “transmitted”[2].
Just make sure your library also has a contract addressing other priorities (see “contract” comments below chart).
|
Okay if performance of covers not “transmitted” to the public.
Just make sure your library also has a contract addressing other priorities (see comments below chart).
|
The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license help by the provider. |
|
No compensation to performers;
admission proceeds are used to benefit library
|
They wrote their owns songs and all the proceeds are going to the library?
Super-cool performers.
|
Okay, so long as the performance of the covers is not transmitted to the public, AND no objection is received from copyright owner (unless they got and can show proof of a license).
|
Okay, so long as entire performance is not transmitted to the public, AND no objection is received from copyright owner (unless they got and can show proof of a license).
|
The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license help by the provider.
|
|
Wait! Did we mention it’s an entire musical!?! |
Your library knows a group that wrote their own musical? That’s awesome. Proceed…just make sure the contract has their guarantee that the work is original, spells out how the library can use the footage for fund-raising, and addresses the contract priorities listed below. |
No performance without a license to the entire musical. |
No performance without a license to the entire musical. |
A karaoke musical? So cool. But definitely the contract with the karaoke machine provider needs to show an adequate license, even if it is not transmitted or recorded. |
|
What if the news shows up?
|
Excellent. More exposure for a band with talent and originality, and for your library. |
Excellent…more exposure for the group and the library. Even if the crew snags some brief footage of a cover song, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4). But make sure your 110(4) criteria are well-documented. |
Excellent…more exposure for the group, and the library. Even if the crew snags some brief footage of a cover song, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4). But make sure your 110(4) criteria are well-documented. |
My worst nightmare would be the news covering me doing karaoke. But again, if the right licensing is in order, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4). |
There are a few things I am sure you’ll notice in this chart:
First, I keep mentioning having a “contract.” No performance should be given in a library (or at a venue with sponsorship by the library) without a contract that confirms the date, performance fee (even if free), intellectual property considerations, public relations/promotion/image release, contingencies for cancellation, and clauses that address liability for any injuries or legal claims based on the performance.
This need for a performance contract applies to any library arranging for a speaker, musical act, magician, artists or other third party (non-employee) to bring programming to your library. For acts that bring risk (of alleged infringement, personal injury, etc.), the contract should require the contracting party to provide a certificate of insurance, and to indemnify the library for any damage caused by the performer.
The contract does not have to be extensive, but it should cover the fundamentals listed above. It can require that the performer obtain all necessary permissions, or can provide that performance licensing be covered by the venue (with a license from ASCAP or BMI). A good general practice lawyer who handles performance and liability issues should be able to develop a template for your library (although even a good template will need to be adjusted from time-to-time).
Second, you’ll see an array of factors in the chart above, like “performer not paid,” or “it’s a musical!?!” These factors are drawn from 17. U.S.C. 110 (4) (a part of the copyright law), which allows certain charitable uses of non-dramatic literary or musical works without a license.
Here is the complete text of 110(4):
[The following is not an infringement of copyright]
(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—
(A) there is no direct or indirect admission charge; or
(B)the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions:
(i) the notice shall be in writing and signed by the copyright owner or such owner’s duly authorized agent; and
(ii)the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and
(iii)the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;
This section of the Copyright Act was crafted with just the members’ type of event in mind. As usual with Copyright law (which giveth and taketh away, when it comes to fair use and other infringement exceptions) careful reading and careful attention to details is important before relying on an exception. But if you document meeting all the factors, 110(4) is a great boon to libraries (and other charitable organizations and efforts).[3]
So as you see, with some careful attention to details, a show can go on. Or as these slightly modified lyrics (fair use!) from the great Shannon (circa 1983![4]) summarize:
Let the music play.
But what’s the venue say?
If there’s a license you
Can play other people’s tunes.
Let the covers play
If your library doesn’t pay,
and don’t transmit your groove
Then the tunes are free to use.[5]
[1] Anyone who has seen “Spinal Tap” knows that there are an amazing variety of things that can go wrong.
[2] To “transmit” a performance is to “communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent”—this includes a livestream, video, or broadcast.
[3] This is partly why I gave you a chart. That, and I love charts.
[4] As of this writing, I am 46. When this song came out, I was 10, and the song, along with many people’s hair, was HUGE.
[5] Parody lyrics are not legal advice. Use the chart, consult the law, and don’t have a concert without a contract!
Tags: Copyright, Music, Online Programming, Legal Poems, Policy, Templates
Is it permissible to create an anthology of 20-30 poems, all by British poets, to be distributed to an entire grade level of students to be used for annotation and instruction? [It’s been suggested] that "since they're all available on the internet" they should be able to printed, collected, bound, and sold to students. A few things that I am unclear on are:
1. Does it make a difference that they are British poets whose work is in the public domain (as I understand, 70 years after death of author)
2. Does it make a difference that the collections are intended to be SOLD to students?
3. If they are, in fact, available through sites such as Project Gutenberg and https://www.whitemarketpodcast.co.uk/blog/2015/10/08/public-domain-poems-for-national-poetry-day/ are they okay to copy, bind, and sell?
I wandered lonely as a cloud…wondering “is there a way to create our own custom array of poems by Wordsworth, Keats, and Burns?”
The answer is: Yes. If a poem was published before 1923[1], or meets certain other criteria, it is in the public domain. Being in the “public domain” means it is free from copyright protection, and that any would-be publisher may generate, duplicate, and sell their own version of it—with or without new illustrations, new original commentary, and other non-infringing works.
When taking on such a project, the critical factor for worry-free re-use is publication before 1923. For such poems, status in the public domain is assured.
For poems published after 1923, the analysis is a bit trickier. There is no hard-and-fast rule; the place of publication, the manner of claiming copyright protection, and the life of the author are all relevant. Cornell maintains an excellent chart that breaks down the factors to consider when assessing if a work is in the public domain.[2]
Public domain status, or permission from the copyright owner, is something a would-be publisher should verify on their own. It should not be assumed, even if the poem is free for download on the internet. Even Project Gutenberg puts terms and restrictions on its content (see the Project Gutenberg License), and does not guarantee that a work is in the public domain (check out PG’s statement on this issue).
Once a would-be publisher has a method for confirming that the poems are in the public domain, it does not matter how many poems they use. When working with public domain material, there is no limit on how many works can be assembled, duplicated, and distributed.
That said, there are a few serious caveats.
First, a publisher must truly verify that each and every poem was published (not written, but published) before 1923, or that any post-1923 publication meets the factors on the chart.
Second, a publisher must make sure they are not infringing someone else’s updated version of a public domain poem. All of Chaucer’s works may be in the public domain, but a new translation, or a copy with new cartoon illustrations, is not. To avoid any charge of copying, it would be best to re-type the poems. Do not copy a recently annotated version. Do not scan a newly illustrated version. Do not simply cut-and-paste. For the final compilation[3] to be owned and then sold by the new publisher, the typing should be done by an employee, as part of their work.
Third (but very important!), if preparing copies of public domain materials for sale, take care that trademarks are not a part of the newly compiled content. As an example…a publisher can re-print a pre-1923 poem about Coca-Cola, but can’t use the Coca-Cola logo to sell the copies (unless its for commentary/criticism, but that’s a fair use question…). Make sure the school has the rights to any images that are used.
Overall: The member’s question models the sense of caution when using previously published material. But with the above caveats in mind, a new publisher can relax, share some poetry, and say:
For oft, when on my couch I lie
In vacant or in pensive mood,
Poems flash upon that inward eye
Which is the bliss of solitude;
And then my heart with pleasure fills,
Thinking I will have no legal bills.
[1]When "Ask the Lawyer" started in 2016, the author was not thinking about how, just a few years later, the "Public Domain" date would change. To preserve this shameful lack of foresight, but also ensure accurate information, as part of the "2021 ATL Audit" we are adding this footnote: Please substitute "1923" with [whatever year it is minus 95]. For instance, if it is 2021, the year should be 1926. When in doubt, visit the excellent chart at https://copyright.cornell.edu/publicdomain.
[2] While rare, some copyright owners simply announce that their work is free to use, or free to use with very limited restrictions. Such an announcement should be verified and documented before being relied on.
[3] If the end product is simply a gathering of public domain material, it might not have sufficient originality to be subject to copyright. But if new illustrations or instructional materials are included, it might.
Tags: Copyright, Public Domain, Legal Poems
When it comes to digitizing large theater and music program collections, it is well-established that a library can digitize anything before 1923, and that if there are no copyright notices on them, can digitize anything before 1978. But if there are multiple "copyrightable" elements in the works (advertisements, photos, actor biographies, illustrations, etc.) is it okay to digitize them? What is the risk in digitizing a program when there is a copyright notice on one or more element in the program, but not all of it? If a theater or musical society is defunct, is it okay to digitize the programs associated with it beyond 1978 or when it may have a copyright notice?
This is a complex issue (although not nearly as complex as assessing a library wing full of dramatic and musical works). To unpack this, I will take advantage of a form suggested by the topic: the opera libretto.
[Cue overture…]
ALTO: Can works with no copyright notice before 1978 be safely digitized?
BASSO: Beware, if they were previously unpublished or the trademark is still monetized.
ALTO: What about text works with multiple works inside them?
BASSO: A compilation notice may protect the whole system.
ALTO: What about a work included in an unregistered collection?
BASSO: Beware! That work may have a separate protection.
ALTO: If a theatre organization has folded, can their work be duplicated?
BASSO: The copyright could have been transferred, so…it’s complicated.
SOPRANO: So you’re saying…[crescendo] you DON’T KNOWWWWWW?
BASSO: ….no.
[triangle]
Okay, enough of that.
The bottom line: There is no bright-line rule I can provide to give assurances for works that are post-1923[2] (and, for unpublished works like journals or private recordings, items authored prior to that date). Between image rights, trademark, privacy, and overlapping copyright terms, projects like the one described in the question can bring an array of legal considerations. Adding music to the equation—which is exempted from §108, the law that allows certain copying at libraries—only heightens the concerns.
The key to designing a digitization project that can survive this type of risk assessment resides in the question: why does the collection, and the particular items in it, need to be digitized in the first place?
If the answer is, “for preservation,” then documenting, on a work-by-work basis, that either there are no protected elements in the work, and that all 108 factors have been met, is the key (NOTE: this would likely involve restricting some of the collection to on-site access only).
If the answer is, “for ADA adaptability,” then documenting, on a work-by-work basis, that the digitization was only for purposes of making an accommodation is the key.
If the answer is, “so the whole world has easy access to high-resolution, searchable, meta-tagged copies of the material,” then verifying, on a work-by-work basis, that no valid copyright or other bar to duplication and online publication is the key. Materials still under copyright could not be available for download, but could be listed as on-site and available for copying if allowed per §108.
If the answer is, “so the whole world has internet access to low-resolution, water-marked, searchable, thoughtfully meta-tagged copies of representational selections of each title (whether under copyright, or not), presenting the bare minimum of what’s needed for researchers to determine what we have on site and available for §108 copying,” then carefully following the four “fair use” factors is the key.
If the answer is, “so the whole world has internet access to our carefully curated, scholarship-oriented, presented-with-commentary-and-criticism, non-market-disrupting, selective array of material carefully culled to represent the breath and scholarly value of our larger collection of theatrical and musical materials available for §108 copying” then designing an end product that meets the four “fair use” factors is the key.
I realize this is a chicken-and-egg reply: if you can’t clear answers on what you can do with the material, how can you envision what to do with it? My reply to that is: trust that your mission to provide access to information is supported by the law. Think about the materials, develop a theme as to why access to them is important, acknowledge any potential boundaries, and a legal solution can be found. Bring in a lawyer to advise on specifics when needed,[1] like a decision to invoke “fair use,” to set up clear parameters for copyright determinations, or how to best document use of §108.
Since access is your mission, copyright should only inform, not deter it
[1]Sometimes, you just need a lawyer. This RAQ can cover a lot of helpful general ground, but some things—like designing a particular fair use, or crafting the legal parameters for a specific project—can only be done through confidential legal advice based on viewing the precise materials and circumstances.
[2]"The 1923 footnote": When "Ask the Lawyer" started in 2016, the author was not thinking about how, just a few years later, the "Public Domain" date would change. To preserve this shameful lack of foresight, but also ensure accurate information, as part of the "2021 ATL Audit" we are adding this footnote: Please substitute "1923" with [whatever year it is minus 95]. For instance, if it is 2021, the year should be 1926. When in doubt, visit the excellent chart at https://copyright.cornell.edu/publicdomain.
Tags: Copyright, Digitization and Copyright, Music, Legal Poems
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.[1]
Of course, all myths come from somewhere, and the origin of this one is easy to pinpoint: Fair Use—an exemption from infringement—considers educational and commercial factors.
But librarians and other information professionals know that Fair Use involves additional factors, and requires case-by-case analysis. To Illustrate this (and helping faculty), many larger higher education institutions maintain excellent, easy-to-use guides.
Here are some of the better ones I couldn’t presume to improve upon:
Given the wealth of excellent material out there already, I have nothing new to add, unless you would find posting this short, punchy bit of doggerel helpful:
When it comes to coursepacks, here’s the rule:
Copyright applies in school.
Sure, not-for-profit education
Can help a “Fair Use” designation,
But articles, books, and chapters used
Without a license can get us sued.
Ten percent is no sure guide…
Fair Use factors slip and slide!
So if the work’s not satirized,
Nor juxtaposed, nor criticized--
But copied just to help them learn--
Then I’m afraid we must be stern.
Don’t become some lawyer’s mission!
Let us help you get permission.
(After all…
If someone used your dissertation,
Perhaps you’d want some compensation?)
You have a license from me to post this, if it will help. Sometimes a short couplet can succeed where charts and paragraphs fail (but maybe leave off that last part).
I wish you a strong heart, and much support, as you protect and guide your institution.
Comments and shaky poetry © Stephanie Adams (2017)
https://creativecommons.org/licenses/by-nc-sa/4.0/
___________________________________
[1] This is unfortunate, because Fair Use does offer a great deal of protection to academia, as can be seen in the recent case https://www.copyright.gov/fair-use/summaries/cambridgeuniv-becker-11thcir2016.pdf. But it is not a simple or over-arching protection!
Tags: Copyright, Fair Use, Photocopies, Academic Libraries, Legal Poems
