With recent updates to the OML in New York state, there is now a requirement both to stream and to make recordings of sessions available via website as described in 103(f). However, the last two sentences of 103(f) seem to limit this requirement only to certain public bodies.
We are trying to understand whether or not this applies to a municipal library board's meetings or not. Certainly we do not have any members appointed by the board, and even if you go up to being chartered by the Board of Regents, Regents are elected by the legislature, so hard to see any applicability there.
Do you see any requirement in the open meetings law for library boards to have video recordings of their meetings posted publicly via the internet? Text of 103(f) below, or online here: https://opengovernment.ny.gov/system/files/documents/2022/02/oml-text-02282022.pdf
(f) Open meetings of an agency or authority shall be, to the extent practicable and within available funds, broadcast to the public and maintained as records of the agency or authority. If the agency or authority maintains a website and utilizes a high speed internet connection, such open meeting shall be, to the extent practicable and within available funds, streamed on such website in real-time, and posted on such website within and for a reasonable time
after the meeting. For the purposes of this subdivision, the term “agency” shall mean only a state department, board, bureau, division, council or office and any public corporation the majority of whose members are appointed by the governor. For purposes of this subdivision, the term “authority” shall mean a public authority or public benefit corporation created by or existing under any state law, at least one of whose members is appointed by the governor
(including any subsidiaries of such public authority or public benefit corporation), other than an interstate or international authority or public benefit corporation. [emphasis added]
 Editor footnote: the question slightly mis-states the Open Meeting Law's most recent requirements; we'll address this in the answer.
Before we dive into the answer, I have to say two things.
First, just a reminder: the reason any chartered library--even an association library--has to follow the State's "Open Meetings Law" and allow public access to trustee meetings, is because Section 260-a of the Education Law requires it.
Second: the timing of this question made it a real pain in the [law]. Here's why:
My first draft answer was written on March 29, 2022.
While the draft was in review, I realized there was a change to the law that I had not factored in. So I pulled back the draft to revise.
While I was revising, the law was changed again!
This required yet another re-write.
So now, as of April 13, 2022--at the risk of Governor Hochul punking me with yet another change to the law--here is the short answer to this question:
103-e does NOT require a library board to record and post their meetings; that is limited to authorities and agencies with at least one member appointed by the governor.
However, under OML 103(c), and per a current temporary add-on to the law, trustee meetings must continue to be broadcast/recorded/transcribed, UNLESS the meeting is ONLY taking place in person, AND the community can physically access each site of the meeting.
That said, a library board is certainly welcome to broadcast and archive its in-person meetings, and (critically) a board cannot bar attendees from streaming or otherwise broadcasting in-person (or streamed) board meetings, either. Further, if capacity or public health concerns mean setting up to allow remote attendance ensures access to the meeting, there is strong incentive to use the (right now) temporary ability to meet via broadcast/record/transcribe.
So, what does this latest (April 9, 2022) change mean?
Right now, if a board meeting is not being broadcast/recorded/transcribed, any remote location from which a board member is attending the meeting is a de facto additional site of the meeting...so the location must be disclosed in the notice for the meeting and the public must be able to attend the meeting at that remote site.
But it looks like this latest change (April 9, 2022) will somewhat change that. So expect (much) more commentary on this...both from me, and others.
Now, for those of you scratching your heads and saying "Wait a minute, you mentioned all these changes in 2022, I KNOW they changed the law back in November 2021!" --You're right, they did. That change amended the OML to require that documents to be viewed by the trustees at the meeting be made available (and if possible, posted on the library's web page) at least 24 hours before that meeting.
Thank you to the member for a thoughtful question. As to the legislature and the Governor....we see where all of this is going (a more accessible and greener OML), but a little dinner and dancing might be nice before you change the law again!
Most recent OML changes (as of April 13, 2022).
Section 1. Subdivision (c) of section 103 of the public officers law,
20 as added by chapter 289 of the laws of 2000, is amended to read as
22 (c) A public body [
that uses videoconferencing to conduct its meet-
ings] shall provide an opportunity for the public to attend, listen and
24 observe [
at any site] meetings in at least one physical location at
25 which a member participates.
26 § 2. The public officers law is amended by adding a new section 103-a
27 to read as follows:
28 § 103-a. Videoconferencing by public bodies. 1. For the purposes of
29 this section, "local public body" shall mean a public corporation as
30 defined in section sixty-six of the general construction law, a poli-
31 tical subdivision as defined in section one hundred of the general
32 municipal law or a committee or subcommittee or other similar body of
33 such entity, or any entity for which a quorum is required in order to
34 conduct public business and which consists of two or more members,
35 performing a governmental function for an entity limited in the
36 execution of its official functions to a portion only of the state, or a
37 political subdivision of the state, or for an agency or department ther-
38 eof. For the purposes of this section, a public body shall be as
39 defined in subdivision two of section one hundred two of this article.
40 2. A public body may, in its discretion, use videoconferencing to
41 conduct its meetings pursuant to the requirements of this article
42 provided that a minimum number of members are present to fulfill the
43 public body's quorum requirement in the same physical location or
44 locations where the public can attend and the following criteria are
46 (a) the governing board of a county, city, town or village has adopted
47 a local law, or a public body has adopted a resolution, or the senate
48 and assembly have adopted a joint resolution, following a public hear-
49 ing, authorizing the use of videoconferencing:
50 (i) for itself and its committees or subcommittees; or,
51 (ii) specifying that each committee or subcommittee may make its own
53 (iii) provided however, each community board in a city with a popu-
54 lation of one million or more shall make its own determination;
S. 8006--C 248 A. 9006--C
1 (b) the public body has established written procedures governing
2 member and public attendance consistent with this section, and such
3 written procedures shall be conspicuously posted on the public website
4 of the public body;
5 (c) members of the public body shall be physically present at any such
6 meeting unless such member is unable to be physically present at any
7 such meeting location due to extraordinary circumstances, as set forth
8 in the resolution and written procedures adopted pursuant to paragraphs
9 (a) and (b) of this subdivision, including disability, illness, caregiv-
10 ing responsibilities, or any other significant or unexpected factor or
11 event which precludes the member's physical attendance at such meeting;
12 (d) except in the case of executive sessions conducted pursuant to
13 section one hundred five of this article, the public body shall ensure
14 that members of the public body can be heard, seen and identified, while
15 the meeting is being conducted, including but not limited to any
16 motions, proposals, resolutions, and any other matter formally discussed
17 or voted upon;
18 (e) the minutes of the meetings involving videoconferencing shall
19 include which, if any, members participated remotely and shall be avail-
20 able to the public pursuant to section one hundred six of this article;
21 (f) if videoconferencing is used to conduct a meeting, the public
22 notice for the meeting shall inform the public that videoconferencing
23 will be used, where the public can view and/or participate in such meet-
24 ing, where required documents and records will be posted or available,
25 and identify the physical location for the meeting where the public can
27 (g) the public body shall provide that each meeting conducted using
28 videoconferencing shall be recorded and such recordings posted or linked
29 on the public website of the public body within five business days
30 following the meeting, and shall remain so available for a minimum of
31 five years thereafter. Such recordings shall be transcribed upon
33 (h) if videoconferencing is used to conduct a meeting, the public body
34 shall provide the opportunity for members of the public to view such
35 meeting via video, and to participate in proceedings via videoconference
36 in real time where public comment or participation is authorized and
37 shall ensure that videoconferencing authorizes the same public partic-
38 ipation or testimony as in person participation or testimony; and
39 (i) a local public body electing to utilize videoconferencing to
40 conduct its meetings must maintain an official website.
41 3. The in person participation requirements of paragraph (c) of subdi-
42 vision two of this section shall not apply during a state disaster emer-
43 gency declared by the governor pursuant to section twenty-eight of the
44 executive law, or a local state of emergency proclaimed by the chief
45 executive of a county, city, village or town pursuant to section twen-
46 ty-four of the executive law, if the public body determines that the
47 circumstances necessitating the emergency declaration would affect or
48 impair the ability of the public body to hold an in person meeting.
49 4. No later than January first, two thousand twenty-four, the commit-
50 tee on open government, created by paragraph (a) of subdivision one of
51 section eighty-nine of this chapter, shall issue a report to the gover-
52 nor, the temporary president of the senate, the speaker of the assembly,
53 the chair of the senate standing committee on local government, the
54 chair of the senate standing committee on investigations and government
55 operations, the chair of the assembly standing committee on local
56 governments, and the chair of the assembly standing committee on govern-
S. 8006--C 249 A. 9006--C
1 mental operations concerning the application and implementation of such
2 law and any further recommendations governing the use of videoconferenc-
3 ing by public bodies to conduct meetings pursuant to this section.
4 5. Open meetings of any public body that are broadcast or that use
5 videoconferencing shall utilize technology to permit access by members
6 of the public with disabilities consistent with the 1990 Americans with
7 Disabilities Act (ADA), as amended, and corresponding guidelines. For
8 the purposes of this section, "disability" shall have the meaning
9 defined in section two hundred ninety-two of the executive law.
10 § 3. Notwithstanding the provisions of article 7 of the public offi-
11 cers law to the contrary, for sixty days after the effective date of
12 this act any public body shall be authorized to meet and take such
13 action authorized by law without permitting in public-in-person access
14 to meetings and authorize such meetings to be held remotely by confer-
15 ence call or similar service, provided that the public has the ability
16 to view or listen to such proceeding and that such meetings are recorded
17 and later transcribed.
18 § 4. This act shall take effect immediately and shall expire and be
19 deemed repealed July 1, 2024.
 This requirement comes with one modification: " ...notwithstanding the provisions of subdivision one of section ninety-nine of the public officers law, public notice of the time and place of a meeting scheduled at least two weeks prior thereto shall be given to the public and news media at least one week before such meeting."
 It happens. This is why a multi-step review process is a valuable thing. Many thanks to Rebecca Darling in Ballston for her input!
 This time, on April 9, 2022. The complete notice I have pasted above is posted at https://opengovernment.ny.gov/system/files/documents/2022/04/oml-videoconferencing-amendments-041122.pdf.
 Ironically, all the fuss and changes did not change my original answer...just the context I was including.
 Chapter 1 of the Laws of 2022.
 The OML, before the pandemic, allowed members to attend via teleconference ONLY if their location became an additional site of the meeting, and the public could attend there.
 April 13, 2022.
 In fact, I'll be doing a training on this for NYLA on Tuesday May 17th, in Albany. For more info, see https://www.nyla.org/spring-on-the-hill-an-in-person-nyla-advocacy-event/
 For more on this, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/238.
 The Governor is from my hometown. She's a hero to many in Buffalo, so I say this with respectful frustration.
Tags: Board of Trustees, Broadcasting, Open Meetings Law, Transcription
The library's podcast (Your Friendly Neighborhood Librarians), hosted by two librarians here, recently started interviewing guests from outside the organization. We are concerned about a few things: what the ramifications are if a guest does not like the way their interview was edited and whether the library owns the rights to the interview and recording. We only edit for clarity and length, and haven't done anything in regards to copyright. Additionally, any advice on whether we should be using some sort of contract or agreement with guests would be helpful. We don't have any sort of agreement in place at present, and are mostly interviewing people who are somewhat library-related. Thank you for your help!
Some days, I just love my job. The day I subscribed to "Your Friendly Neighborhood Librarians" (2/4/22) to answer this question was one of those days.
For those of you who haven't checked out the Podcast: it's a forum where hosts (and librarians) Jim and Robyn, based in Rochester, NY, conduct deep and lively interviews with quasi-local authors. 
When it comes to running a Podcast, there's a lot of legal to unpack. I'll use a recent episode of YFNL (Season 2, Episode 4, January 30, 2022), an interview with photographer Quajay Donnell to illustrate.
When the Podcast starts, the first thing you hear is the YFNL's theme song:
[guitar strumming] "Librarians, librarians, when you've got questions, they're the ones, to help you find what you're looking for..." [more]. It sounds vaguely like the theme to "Spiderman" and is clearly a riff; it's super-cute and fun and brings a smile to my face. Then Jim and Robyn introduce the session's guest and launch into the interview.
The rapport is lively and fun, but Jim and Robyn's deeply prepared interview technique gives Quajay Donnell room to make comments, tell stories, and respond to well-informed prompts to talk not only about his work, but the work of others, and his thoughts on public art (I enjoy Mr. Donnell's comment, after a glowing list of his credentials "I sometimes struggle with the title of 'photographer', I sometimes say 'I'm a picture-taker', or 'I capture moments'." I appreciate when people resist or explore the purpose of labels). The show then ends with a cut to a recommendation from a circulation desk worker, Sim, who recommends "Field of Blood" by Joanne Friedman, and a tease for the next episode ("banned and challenged books"), some thanks to various show-helpers, and an instrumental of that great theme song.
So with that background, let's answer the questions:
"[W]hat the ramifications are if a guest does not like the way their interview was edited and whether the library owns the rights to the interview and recording. Additionally, any advice on whether we should be using some sort of contract or agreement with guests would be helpful. We don't have any sort of agreement in place at present, and are mostly interviewing people who are somewhat library-related."
I wish I could give simple answers to these straightforward questions, but this is "Ask the Lawyer," so I cannot. But to start, I can say there are three variables that inform the answer to these questions:
Variable "1": Who is creating the Podcast? Is it "officially" the library, or is it being created through the collaboration of independent individuals?
Variable "2": What is the identity of the Podcast? Is it 100% entertainment, or is it meant to be investigative journalism, oral history, or serve another documentary purpose?
Variable "3": What is the purpose of the Podcast? In other words, what is it trying to achieve not only now, but 70 years from now, when it is still protected by copyright, and past consideration of such questions will govern what type of access its intended audience should have?
Here’s how these variables impact the member's questions:
If a library is the creator of the Podcast (meaning the library directed its employees to create the Podcast as part of the work they are hired to do), then the library is the entity responsible for addressing (and bearing the liability for) issues of ethics, ownership, and risk (like defamation and image use). If an individual or individuals are the creator/owner of the podcast, the responsibility falls on them.
If the identity of the podcast is light entertainment (that theme song!), then the creator does not have to worry about abiding by, or benefiting from, professional codes of ethics and law pertaining to journalism, academic work, oral history/documentary, or political expression. But if it aspires to fall into any of those categories (and while it's not my call, I'd say YFNL is at the very least a form of journalism), ethics and certain laws may apply.
If the purpose of the Podcast is to ensure that people listening in 2022, as well as 100 years from now, appreciate home-grown artists in and around Rochester, NY, the creator/owner needs to ensure the work is set up to be controlled in such a way that access for that purpose is ensured. This is true whether the owner is an entity (like a library), or a person or persons.
So with that as background, let's tackle the member's questions:
For the first question ('"[what] if a guest does not like the way their interview was edited?), the answer is: in a worst-case scenario (say the guest claims the interview was edited to make him sound offensive, and claims it caused him to be "cancelled"), there could be some type of legal claim for damages. While I won't get too technical, this concern relates to a "tort" claim (like a personal injury) and the member is wise to bring it up, since this is a critical issue.
An attorney advising an entity or person on this would: 1) confirm who the creator, publisher and owner of the content is; 2) ensure the party (or parties) makes good use of a speaker agreement that secures a waiver of liability for the producer and all people affiliated with the podcast; 3) if appropriate, advise a step in the production process that gives participants the right to review and approve release of the final version (in writing).
This plays into the second question: "whether the library owns the rights to the interview and recording."
This should not be an ambiguous issue: either the work is "for hire" (meaning the librarians and other credited helpers are doing it as part of the work they are paid to do, or are working per an additional contract) and is owned by the library, OR the work is owned by the individuals creating it.
The leads to the third question (or rather, factor) listed by the member: We only edit for clarity and length.
This plays into the identity of the podcast. If a podcast or other work isn't using a lot of editing to create a specific dramatic or entertaining effect, and is structured to perform a primarily documentary function, it is worth considering using the established ethics of journalism or oral history to guide the project.
In the state of New York, journalists' sources are accorded particular protections under the law, while the identity of the speaker and nature of the communications are relevant to claims of defamation. Also under New York law, the further an unauthorized use of someone's name, likeness, or voice, is from a "commercial use," the less likely a person can sue based on "invasion of privacy." And under federal copyright law, material that incorporates copyright-protected work (perhaps reading part of a poem) for journalistic, academic, or documentary functions will get consideration of that factor if a court needs to determine "fair use."
This next variable I listed is purpose, meaning, what is this work supposed to accomplish, and for how long? Consider that variable in light of the member's statement: "[We] haven't done anything in regards to copyright."
If the purpose of the podcast is to ensure as many people as possible access and appreciate it for as long as possible, what might be more important than registering a copyright is to ensure the work is archived on not only a commercial service such as Apple Podcast (where I found it), but in repositories owned by the public, as part of an institution whose structure ensures some type of longevity.
However, if part of the purpose of the podcast is to ensure for as long as possible that it can never be exploited commercially by anyone, and the owner wants to make sure it will be able to claim damages and attorneys' fees in the event the recording is infringed, registering it is a good idea.
So with that, I get to the last, open-ended question from the member: Additionally, any advice on whether we should be using some sort of contract or agreement with guests would be helpful.
It's important to know at this point that while sometimes I reach out to a member who submits a question to "Ask the Lawyer" (to get a bit more information to enable a more helpful answer), in this case, I did not reach out to Robyn and Jim (although because I really like the podcast, I wanted to!). I thought it would be more important, and in the spirit of their question, to present a generic answer to this part of their question with a generic template that could be of use to other libraries and librarians creating a podcast or other type of audio content.
When creating a podcast, here are the "legal" questions to answer to help you (and your lawyer) address the legal considerations:
Reason it's relevant
What is the purpose of the podcast?
It's important to answer this question first, because the purpose of the podcast will drive all the answers following this one.
Are there any professional ethics that apply to the podcast?
This answer is based in part on the "purpose." If the purpose is a type of journalism, the creator may want to consider affirmatively abiding by applicable journalistic ethics. If the purpose is oral history, the ethics of oral historians could apply.
Who "owns" the podcast?
This is a question for a lawyer. However, I can broadly say that if a library or educational institution is directing the podcast to be created, and the people creating it are doing so as part of their jobs, then the podcast is owned by the employer. If everyone involved is unambiguously doing it in their free time, then likely, they are the owners together. And in either case, if there is any grant funding that applies to the podcast, the owner(s) should pay close attention to the terms of the grant, because often grants involve a license or transfer of intellectual property.
What is the end product?
This seems like a pretty straightforward question, it's "podcast recordings," right? However, in just taking a look at "Your Friendly Neighborhood Librarians" I heard a theme song that could be subject to individual copyright, and I see there are really excellent descriptions of each podcast that were authored by somebody. In addition, "Your Friendly Neighborhood Librarians" (a clever brand) could also be subject to trademark. There is also a logo. And if the content is in its own archive with its own metadata, the metadata could also be proprietary. These are just a few examples, so inventorying the end creation (and if all of the creators are not employees, making sure intellectual property is transferred appropriately) might be bigger than maintaining a list of podcasts.
What are the terms for regular and guest contributors?
For podcasts being created by people as part of their jobs, the expectations, rules and protections for them should be understood between their job description and the rules by which the podcast is operated.
For guests, as the member's question points out, it is best to have a written agreement that sets out the terms, including the right balance of a waiver of liability and the ability to preview the podcast to ensure any editing does not result in a person saying something they didn't intend to say.
(As one example of "rules": if a podcast is being produced by a public library or a not-for-profit organization, there should be a firm rule that no endorsements of political candidates are allowed on the show.)
What other conditions may apply?
For podcasts released on Apple Podcast, this means what are the rules you have to follow under the terms of Apple. For those selecting additional or alternate fora, paying attention to the "terms and conditions" on those resources is also important. And as mentioned above, grants and donations with conditions that support the content creation should also be considered (if you are lucky enough to be running a grant-funded podcast).
How do people access the content?
This is critical for ensuring accessibility in both the short and long-term. Early consideration of this factor also ensures that any legal releases or agreements an owner needs to enter into (like licensing a logo) can accommodate the full plan for accessibility.
How are any risks being addressed?
I appreciate this is a very open-ended last item. Broadly speaking, if the podcast is being produced by the library, the library's insurance carriers should be consulted to make sure it has insurance coverage for that type of activity. Any aspect of the podcast that is not covered should either be limited or other risk management, such as a waiver of liability, and a process for preview by guests, should be considered.
Now, with all that said, I am very aware that some of the answers I have put above may cause more anxiety then resolve curiosity. To help out with that, below is a template for a "podcast guest agreement."
As with any template, a library or podcaster should have their lawyer consider all of the factors I list above before finalizing the template. But hopefully this template can provide a good start.
[Template Podcast Guest Agreement]
RE: Terms of guest appearance on [PODCAST NAME] on [DATE]
Dear [NAME OF GUEST]:
Thank you for agreeing to be a guest on our show, [NAME] ("the Show") on [DATE TIME] to discuss [TOPIC].
Below are the terms between you and [OWNER NAME] ("Show Publisher") for your appearance on the Show. Please review the terms, and if you agree, please sign below.
If you have any questions before signing, please contact [NAME] at [CONTACT INFO] to discuss them before sending us the signed copy.
You agree that the direct recording (audio and visual) and any subsequent product incorporating it, including but not limited to transcription and any adaptive copies made to enable access by those with a disability, shall be the sole property of Show Owner.
You agree that for purposes of promoting, publishing, performing, displaying and making the Show accessible to its audience, Show Owner may use your name, image, and likeness in print and electronic media. This permission is expressly limited to promoting and publishing the episode of the Show featuring you. This permission is irrevocable once the Show featuring you has been made available to the public in any medium.
The rules of participating in the Show are:
Show Owner is committed to creating an experience and show that respects the dignity of all participants and listeners. If you have any concern at any point regarding your experience working on the Show, please alert [NAME] at [CONTACT INFO].
If at any point during recording you need to take a break, please simply state "I need a break" and we'll stop recording. This includes if a topic is not one on which you wish to speak.
We edit our show for length and clarity. You will be given an opportunity to review the edited version prior to it being uploaded to [SITE(s)]. We ask that you write to [NAME] and [EMAIL] with any concerns about edits within [#] days of the final cut being made accessible to you. If we don't hear anything from you within three days (excluding Saturday and Sunday), we will assume you consent to the publication of the content.
Please refrain from any endorsement of any political candidates during recording.
Please do not accuse any person of a crime, having an STD, or of being incompetent at their job, or marital infidelity, unless such fact is generally known, during recording. We don't anticipate your appearance will warrant a dip into such a topic, but to avoid claims of defamation, or having to edit out such content, we alert guests to this consideration.
[INSERT CUSTOM RULES]
You release and hold harmless Show Owner, its employees, volunteers, and agents from any and all liability, claims of injury, lawsuits, and complaints in association with Show.
Warranties & Representations
You represent and warrant that:
a) No contract or other obligation bars you from appearing on the Show;
b) Any performance on the Show by you will be of your own original work;
c) You are aware that the permission you are granting NAME to use your image, name, and likeness for the limited purposes listed above is irrevocable;
d) You know the show will be archived by Show Owner and may archived to be available for your lifetime and beyond.
e) You are over the age of 18 and thus able to sign this contract OR your legal guardian has signed below.
Thank you so much for agreeing to be on our show!
Signed on behalf of Show Owner:___________________________
Signed by Guest:______________________________
Guest Date of Birth:_______________________________
Guest preferred pronouns:_____________________________
[if applicable] Signed by Guest's parent or guardian:____________________________
Good wishes for your friendly neighborhood podcasts, true-believers!
 For any Western New Yorker lamenting the decreasing number of journalists on the local creative beat, this is a nice antidote. (BTW...Buffalo/Rochester = WNY. Syracuse/Rome/Utica = Central NY. I grew up in Central New York and now live in Western New York, and when this distinction gets blurred, it hurts).
 Including two people credited for the theme song.
 In my experience, librarians can have a tough time with this one, since they often go above and beyond. For more on this type of issue, see the "Ask the Lawyer" on LibGuides at https://www.wnylrc.org/ask-the-lawyer/raqs/117.
 I realize that these categories overlap, especially these days, but we'll talk about why the distinctions are important.
 It's official: I am using a lower-case "p" to write "podcast." Congratulations, podcast, you've been genericized.
 It is also very much an "issue de jeur", since the ALA has joined an amicus brief on the rules in the state of New York for suing non-journalists for publishing content in public fora. For more on that, search "Coleman v. Grand."
 This is a major distinction between a cultural or entertainment piece rather than investigative journalism, since professional reporters generally don't give interview subjects the right to approve a final cut.
 In this case, "unauthorized" means without written, signed permission.
 If you don't have a lawyer look at any other part, have them look at this. This is a very bare-bones hold harmless intended to not "scare off" guests; a library should have a clause that matches the level of risk it is prepared to take.
Tags: Broadcasting, Copyright, Disclaimers, Policy, Public Libraries, Templates
We are aware of the requirement to have a movie license to show a movie in a public forum, such as in a public library and the restrictions associated. My question is: are there restrictions to providing access to television programming, such as news events, in a public setting?......
The lawyer answers:
There is a simple answer to this question, although it stands on a mountain of conflicting law, international disputes regarding IP, and arguments about music rights.
Section 110 of the Copyright Act allows an entity to have one medium-sized tv (of a kind commonly used in private homes…no JumboTrons), showing a broadcast of anything but songs, so long as there is no admission charged, and the programming isn’t re-transmitted (streamed, split for viewing on another device, etc).
The member then took her question to the next logical place…
Taking this a step further, do live streaming of such events accessed via the Internet have such restrictions? i.e. during the recent hurricanes, a public library provided viewing access to live streaming news events to members of the public (public forum). Is such legal? Can a public library "broadcast" internally - for the viewing ability of the public - show television programs, news reports, live streaming videos, etc.
The lawyer answers….
This is where things get complicated. There are any number of law review articles, commentaries, and cases debating how copyright law, communications law, and contract law intersect on this issue. While “streaming” has become a catch-all term for any audiovisual (or audio) work accessible via the internet, the precise technology behind the display plays into the analysis. Further, many news sites require log-in information connected to an individual person to get full access, so the person whose account is associated with an allegedly non-conforming or infringing use could face personal consequences.
The bottom line: an institution would need to exercise caution on a case-by-case basis to re-transmit information, since the 110(5)(a) exception might not apply. But if the content is on one screen, no admission is charged, and there is no re-transmission, it might be possible.
The member then asked the “Ultimate YouTube” question:
While not, in my opinion the same as showing the news, a television program, etc.....The following is known about YouTube "terms of service": "Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a “download” or similar link displayed by YouTube on the Service for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content. YouTube and its licensors reserve all rights not expressly granted in and to the Service and the Content."
This question highlights exactly what I had to talk about above: that the licensing terms of the websites may bring further restrictions than the copyright law. That said, here is an important point for libraries, the guardians of information: Section 110 is not the only exception to infringement for the transmission of audiovisual works. Fair Use, in Section 107, and the “Library and Archive Exception, in Section 108, can also apply.
As to Section 108, the capture and archiving (and perhaps, later, lending/copying) of streamed content goes beyond the scope of this reply, but it’s an issue to keep in mind. Nowadays, a great amount of valuable content is “born digital,” and the meaningful archiving of such content may fall within a particular library’s mission. For this, any library should consider exactly what it wants to do, the precise nature of the source material, the precise legal concerns….and develop a strategy to do it. This will only get more important in the decades to come.
 Trust me. It’s a mess. Just do a search for “Berne” and “homestyle exception” and “WIPO.”
 This answer does not address playing audio works, which fall in part under 110, but require different analyses (yes, more than one).
 For instance, in the case Joe Hand Productions, Inc., v. Maupin (2016, U.S. District, EDNY), the court assessed a claim based on a saloon owner using a Roku device to display a Mixed Martial Arts fight accessed through his Cablevision account. The court refused to dismiss the claims for both copyright infringement and violation of the Federal Communications Act. As of this writing, that case is still in its pre-trial phase. Of course, the saloon probably pulled in a lot more money for hosting an MMA re-transmission than a library will pull in for providing emergency news access, but the financial rewards of the performance are not the only factor.
 I appreciate that during a time of extreme need, when lives are on the line, a cost-benefit analysis might also cause someone to throw caution to the wind and just re-broadcast the content without doing a Fair Use analysis! I don’t advise that, but I don’t want readers to think I am a heartless legal robot.
 Consider the various databases of valuable research/data that have changed format and content due to administrative changes in the federal executive branch, for instance.
Tags: Copyright, Broadcasting, Streaming