RAQs: Recently Asked Questions

Topic: Name of Employee Personnel Policy - 11/03/2021
Should what we think of as the personnel policy be called Employee Handbook or Personnel Policy? ...
Posted: Wednesday, November 3, 2021 Permalink

MEMBER QUESTION

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!

WNYLRC ATTORNEY'S RESPONSE

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:

  • Sexual Harassment Policy[2]
  • Prevention of Airborne Disease[3]
  • Whistleblower Policy[4]

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

Topic: Live Music Covers and Permissions - 7/31/2019
First question… Our library will be hosting a live music event in the local auditorium th...
Posted: Wednesday, July 31, 2019 Permalink

MEMBER QUESTION

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? 

WNYLRC ATTORNEY'S RESPONSE

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

Topic: Creating a poetry anthology - 4/28/2018
Is it permissible to create an anthology of 20-30 poems, all by British poets, to be distributed t...
Posted: Saturday, April 28, 2018 Permalink

MEMBER QUESTION

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?

 

WNYLRC ATTORNEY'S RESPONSE

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

Topic: Digitizing dramatic and musical works - 3/1/2018
When it comes to digitizing large theater and music program collections, it is well-established th...
Posted: Thursday, March 1, 2018 Permalink

MEMBER QUESTION

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?

 

WNYLRC ATTORNEY'S RESPONSE

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

Topic: Coursepacks and Copyright - 8/10/2017
I have had several requests by faculty to approve the coursepacks they have put together. All of t...
Posted: Thursday, August 10, 2017 Permalink

MEMBER QUESTION

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.

WNYLRC ATTORNEY'S RESPONSE

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:

NYU

Columbia

Stanford

Harvard

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

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.