RAQs: Recently Asked Questions

Topic: Ed Law 2-d Compliance and Vendor Products - 5/21/2020
Many districts have had COVID-19 access for SORA Ebooks. I am not sure if it is ED Law 2-d complia...
Posted: Thursday, May 21, 2020 Permalink

MEMBER QUESTION

Many districts have had COVID-19 access for SORA Ebooks. I am not sure if it is ED Law 2-d compliant. We do not want to support or suggest products to our membership that do not meet that compliance. Can you let us know? Thank you!

WNYLRC ATTORNEY'S RESPONSE

New York school libraries[1] operate in a complex web of regulations governing student privacy.  Laws such as FERPA, CPLR 4509, and “ED 2-d” all restrict what can be done (and can’t be done) with library records related to students.

At “Ask the Lawyer,” we’ve spent a fair amount of time on FERPA[2] and CLPLR 4509[3], so if you need some background on those, check the footnotes for this sentence.

That said, I have never written an “Ask the Lawyer” on ED 2-d, the new law protects “personally identifiable information” (“PII”)” held by a school district.  I’ll weave the relevant parts of the law into this answer.

And I have never written about (or used) SORA.  Since SORA is at the heart of this question, here is a little background on that:

SORA is a service provided by Rakuten/Overdrive.  In its own words, it provides “Millions of ebooks and audiobooks for your students. Thousands of publishers. Comes loaded with hundreds of premium titles at no cost. Infinite reading possibilities on practically any device.”[4]  Participating school districts enable student access to SORA through their own log-in points (the mechanics of which vary from school to school).

How does the service work?  As one reviewer put it[5]: “SORA can be downloaded for free by all students and teachers. If their school or district is an OverDrive partner, they can then use SORA to access their school's digital collection and also connect with the local public library's digital collection.”[6]

And finally, it is worth noting that SORA has a very cute logo: a puffy-silver astronaut, soaring wide-eyed into an eye-relaxing sky of silver-blue.  The astronaut is a combination of a Pokémon, Sailor Moon, and Big Hero Six.[7]  He is ready to read, and all set to escort your students to a universe of reading, too!  The logo is so cute, I don’t know how the member could think this company could do any wrong.

But savvy librarians are not distracted by cute logos.  And in this case, our savvy librarian-member asks: is use of SORA by a district compliant with the privacy protections of New York State Education Law 2-d?

We’ll start this analysis with a term defined by the law: “third party contractor,” which ED 2-d defines as:

 … any person or entity, other than an educational agency, that receives student data or teacher or principal data from an educational agency pursuant to a contract or other written agreement for purposes of providing services to such educational agency, including but not limited to data management or storage services, conducting studies for or on behalf of such educational agency, or audit or evaluation of publicly funded programs.

If SORA (or another service), meets this definition, then the district/school using it must implement the requirements of Ed 2-d, which are in the regulations found here:

http://www.nysed.gov/common/nysed/files/programs/data-privacy-security/part-121.pdf

I would set the full requirements out in this answer, but they are lengthy, and the regulations are about as plainly worded as can be.

In addition, for a library at a specific school in New York, there is a more institution-specific way to find these requirements.  To comply with Ed 2-d, every school district must have their own “District Privacy Officer” (“DPO”)[8] and that DPO must ensure that their institution develops and publishes a document called the “Parents Bill of Rights for Data Privacy and Security.”[9]

The parents’ “Bill of Rights” must list the district/school’s obligations vis-à-vis third-party contractors, including precise requirements for the protection of student information accessed by a specific contractor.  In other words, for each “third party contractor” (like, potentially, SORA), a district/school must publish the unique “supplemental” contract terms they’ve created to ensure the service meets Ed 2-d requirements. 

Readers who want to see the Ed 2-d criteria of their own particular district or school should be able to find it by searching for that district’s “Bill of Rights.”[10]  For any district using Overdrive and/or SORA, the “Bill of Rights” will either contain supplemental terms applicable to SORA, or they will have determined that their use of SORA does not disclose any PII.

So here is the question at the heart of the member’s question: does use of SORA, as arranged by a district, disclose PII to Overdrive?  While each district needs to make that determination on its own, in my opinion, any third party contractor that students must log into using a school-issued ID, after which the student will access content that supplements their school library’s collection (and be able annotate and leave notes about[11]), has a high likelihood of collecting PII.   

But as I say, it will be up to the district’s DPO to make the call.  If that call is: “Heck, yeah, they’ll be getting PII,” the district will then need to follow the law and regulations[12] to ensure the use complies. This means verifying that the contract has the right Ed 2-d requirements, and supplementing its “Bill of Rights” by disclosing the precise requirements the contract imposes on the contractor.  But if that call is: “We checked it out, and nope, no PII heading out the door here,” then nothing further is needed (insofar as ED 2-d is concerned).

While it may seem like I am punting on this answer (“Go see your DPO!”[13]) I can say that the SORA Privacy Policy[14], as published on May 20, 2020, does contain the elements that are consistent with the requirements of ED 2-d.  As but one example, Overdrive has a process for correcting records, which provides:

If you are a teacher or administrator at an educational institution using the school Services, please email privacy@overdrive.com to request the review, correction, and/or removal of a student’s Personal Information, and we will facilitate your access to and correction of such Personal Information promptly upon your request.

The ability to “challenge the records” of a contractor is a requirement of Ed 2-d.[15]  This suggests to me that Overdrive knows SORA will be gathering protected information, and the service is ready to enter into contracts that give the required assurances.  But only a look at the school’s contract for SORA, and its precise definition of PII, can ensure that.

The bottom line?  No matter what the published “Privacy Policy” of SORA says, there is no way to fully confirm a school library’s use of SORA complies with Ed 2-d law and regulations until the district’s designated DPO[16]:

1) Assesses what information will be accessed by or transferred to Rakutan/Overdrive as a result of their district contracting for SORA;

2) Determines if that information is PII as defined by Ed 2-d[17];

3) If it is PII, ensures the contract complies with Ed2-d; and

4)  Takes the steps to publish the “Bill of Rights” supplement as required.[18]

In other words: in Ed 2-d compliance, there should be no guesswork.  By working with the school’s DPO, the guesswork should be entirely removed.

Thanks for a great question!



[1] Not to be confused with New York’s “school district public libraries,” which are chartered libraries operating separately from their associated district.

[6] If you want to read some harsh, some glowing, and some occasionally amusing reviews, check out the SORA review content here: https://play.google.com/store/apps/details?id=com.overdrive.mobile.android.sora&hl=en_US  I particularly enjoyed the brief but scathing review by a person who thought the service was supposed to be a game.

[7] I am not one myself, but I have anime fans in the family.  It rubs off.

[8] Per Regulation 121.8(a), “Each educational agency shall designate a Data Protection Officer to be responsible for the implementation of the policies and procedures required in Education Law §2-d and this Part, and to serve as the point of contact for data security and privacy for the educational agency.”  That’s the “DPO.”

[9] No, that is not a typo in “parents.”  The law left out either possessive apostrophe (“parent’s” or, for the plural possessive “parents’”).  Grammar matters, NY Assembly…grammar matters.

[10] I tried this on several different districts/schools across the state; a few institutions that shall remain nameless seem to have flunked, but admittedly, I didn’t look much harder than a cursory google search—which worked for many of the other institutions searched.

[11] Yes, I watched the SORA demo and paid attention to the additional features, which includes highlighting content and typing in comments.  I guess it beats writing in a book, which, to my husband’s great chagrin, I have been known to do (only to my own books).

[13] This is also critical because the definition of PII may vary slightly from institution from institution.  This is because student PII is based on the definition of “education records” in FERPA, which does allow some variance in “directory information” and other nuances this footnote is too small to cover.

[15] Regulation 121.3(c)(4)

[16] Or designee, of course.

[17]Personally Identifiable Information, as applied to student data, means personally identifiable information as defined in section 99.3 of Title 34 of the Code of 3 Federal Regulations implementing the Family Educational Rights and Privacy Act, 20 U.S.C 1232g, and as applied to teacher and principal data, means personally identifiable information as such term is defined in Education Law §3012-c (10).”

[18] I realize this answer may give DPO’s out there extra work.  I am afraid I can’t apologize, since vigilance about privacy is a beautiful thing.  And hey—job security!

Tags: COVID-19, Emergency Response, School Libraries, Ed Law 2-d, Overdrive, SORA

Topic: School Closures and Teachers Pay Teachers - 3/26/2020
With the recent closing of schools I and my membership have been asked a great deal about Teachers...
Posted: Thursday, March 26, 2020 Permalink

MEMBER QUESTION

With the recent closing of schools I and my membership have been asked a great deal about Teachers Pay Teachers. Is it responsible for teachers and districts to provide students with materials purchased through this service?

WNYLRC ATTORNEY'S RESPONSE

[NOTE: This answer is part of our ongoing response to institutions moving to online instruction as part of the world’s response to COVID-19.  For additional Q&A on that, search “COVID-19” in the Ask the Lawyer search utility.]

“Teachers Pay Teachers” (“TPT”) is an interesting service that allows teachers to license (sell rights to) others who need customized lesson plans and educational material.[1]

The member’s question relates to the TPT license, which governs what individuals and organizations can do with the content.

If the member’s question is asking: does the TPT license allow us to print and distribute the materials in hard copy for packets sent out by the District?  The answer is generally: yes.

If the member’s question is asking: does the TPT license allow us to distribute the materials electronically using e-mail or a website or a Learning Management System? The answer is generally: it depends.

I spent some time on TPT’s website reviewing their “Terms of Service”[2] and I believe teachers and organizations will need to examine the license for each separate purchase to confirm that electronic distribution is allowed.

Why? TPT’s “Terms of Service” largely allow for the creation of hard copies,[3] but their default conditions bar online distribution.  HOWEVER, TPT also allows the teachers supplying the content to loosen those default restrictions[4] (including allowing distribution on the web[5], e-mail, etc.)…so while one lesson purchased from TPT might not allow a web or e-mail distribution, another might. 

This can change not only from author to author, but content to content, so it is important to read the fine print.[6]

I would add: these are early days in the pandemic response.  As of March 26, 2020, TPT did not have any expressly Covid-19 policies on its website.  Nevertheless, like other online and tech providers, they may realize their hour has come, and take action. 

What will that action be?  I can’t say; a crisis brings out the best and the worst in businesses.  Some businesses will try and simply profit from the current situation; others will dig deep, conclude we are all in this together….and try to find at least middle ground. 

Looking at their Terms, Teachers Pay Teachers has made commitments to individual content providers it cannot easily change on a dime.  But remember, TPT empowers its individual content providers to set their own terms—so long as those terms are more liberal that the TPT baseline.  So keep your eyes on those product-specific, unique terms of use.  I imagine many teachers will feel compassion for the teachers and students impacts by this public health emergency, and liberalize their restrictions.

Thank you for this important question.

USING LICENSED CONTENT TIP: If you or your institution conclude that TPT or another license does give you permission for electronic distribution, it is a good idea to take a screen shot of that license and save it (just e-mail it to yourself in a place where you know you’ll have it for 3 years after you’re done use the content).  Online content providers can change the terms they post, without warning—and you want to be able to show that on the day you made the call to share the content electronically, the licensor allowed you to do so.

 



[1] Because some educational institutions own the rights to teacher-generated materials, and some do not, the Teachers Pay Teachers model is a fascinating study in copyright issues—but a global pandemic is not the time to muse over that.

[3] The Terms of Service allow you to: “Print and make copies of downloadable Resources as necessary for Personal Use. Copies may be made and provided to your students, classroom aides, and substitute teachers as necessary. Copies may also be made for students’ parents, classroom observers, supervisors, or school administrators for review purposes only. Hard goods and video resources may not be copied, shared, or otherwise reproduced.” [emphasis added]

[4] But not further tighten them.  Like I said, a really interesting model.

[5] For instance, one license I looked at, for a chemistry class, said: “These resources may not be uploaded to the internet in any form (including classroom websites, personal web sites, Weebly sites, network sites) unless the site is password protected and can only be accessed by the students of the licensed teacher.”  In other words: yes, you can distribute them electronically, if you use a restricted system!

[6] The diversity of author-specific permissions I saw on TPT was really interesting. Some folks just want credit.  Others want you to not send the content, but drive people to their own personal listings (so their analytics show the hits).  I bet some, in the coming days, will even change their permissions to respond to the pandemic with compassion.

Tags: COVID-19, Emergency Response, Licensing, School Libraries, Teachers Pay Teachers

Topic: Code of Ethics Conflict of Interest - 11/6/2019
What, if any, are the ramifications if a school district public library board of trustee member re...
Posted: Wednesday, November 6, 2019 Permalink

MEMBER QUESTION

What, if any, are the ramifications if a school district public library board of trustee member refuses to sign the code of ethics and/or the conflict of interest/whistleblower policy?

WNYLRC ATTORNEY'S RESPONSE

I am sure there is a very interesting set of facts, personal convictions, and conversations behind the stark facts presented in this question (there always is).  But we’ll address just the stark facts.

Because a library’s Code of Ethics, Conflict of Interest Policy, and Whistleblower Policy[1] are rooted in different areas of the law, a refusal to sign these documents creates an array of ramifications. We’ll explore each type in turn.

But first, it’s important to establish certain base factors.

Base Factors

In New York, most libraries (unless they are part of a larger institutions like a college or museum) are not-for-profit corporations chartered by the New York Education Department’s Board of Regents.[2]  This means that, just like other not-for-profit corporations registered with the New York Department of State, libraries are subject to the Not-for-Profit Corporations Law (the “NFPCL”).[3]  This includes school district public libraries.

Without getting too technical, this means that all libraries in New York are governed in accordance with not only their charters and bylaws, but the applicable parts of the Education Law and the NFPCL, too.[4]

This governance structure impacts questions related to conflicts of interest, whistleblowing, and codes of ethics. With the basic features established, let’s look at the different type of policy in the member question.

 

Conflict of Interest Policy

Here is what the law says about a refusal to participate in the “Conflict of Interest” policy, as governed by the NFPCL:

The conflict of interest policy shall require that prior to the initial election of any director[5], and annually thereafter, such director shall complete, sign and submit to the secretary of the corporation or a designated compliance officer a written statement identifying, to the best of the director’s knowledge, any entity of which such director is an officer, director, trustee, member, owner (either as a sole proprietor or a partner), or employee and with which the corporation has a relationship, and any transaction in which the corporation is a participant and in which the director might have a conflicting interest.[6]

So, to give a stark answer to the member’s question, per the law, no person should actually be elected to serve as a trustee until the nominee’s Conflict of Interest statement (the “COI”) is completed and submitted.  In other words, if the COI is not turned in, that person should never initially be elected as a trustee (we’ll pick that back up in a few paragraphs when we discuss the election criteria for school district public library trustees).

 

Whistleblower Policy

A requirement to “sign” the Whistleblower Policy is a slightly different matter.  Unlike the law related to conflicts of interest, the law requiring any not-for-profit with over 20 employees (or revenue in excess of one million dollars) to have a Whistleblower Policy[7] does not come with a requirement for trustees to sign any document. 

Of course, a refusal to abide by the Whistleblower Policy (for instance, a trustee failing to keep a report confidential), could result in a violation of the law, and the libraries’ bylaws, as well.

 

Code of Ethics

Public school boards must have Codes of Ethics,[8] but libraries—even school district public libraries—do not. There is no requirement in the NFPCL, nor the Education Law, nor any applicable regulations, that a public library have such a code.

That said, to clearly express and enforce a library’s values, a Code of Ethics is often built into a library’s bylaws or adopted as a stand-alone policy of a library’s board.[9]   The bylaws, or policy itself, could also require that it be signed.  Once it is a requirement of the bylaws or policy, it does not have the force of law, but it can be enforced by the board.

 

Refusal to Sign

Which brings us to: whether it a requirement of law or policy, the refusal to sign of a board member must be addressed under the library’s charter, bylaws, and the NFPCPL. 

Under NFPCL §706, a board is empowered to remove a board member per the procedures in its bylaws.  Therefore, if a board determines that failure to sign the Code of Ethics or Whistleblower Policy is unacceptable, or that a failure to sign a Code of Ethics makes the library non-compliant with the law, then that board member can be removed, provided the remaining trustees are careful to follow the bylaw’s procedures for doing so. 

This can be a divisive issue, since I imagine someone could present a debatable reason for not signing a Code or other policy,[10] but since a Code of Ethics or mission statement is something every board member must support as part of their service to the library, the root cause of the refusal might be just as serious as the refusal, and in any event, must be resolved. And that is, except for one wrinkle, the lay of the land.

 

School District Public Library

At school district public libraries, board members are elected per the requirements of Education Law §260. 

§260, and by reference, §2018 of the Education Law, include very precise conditions for the nomination and election of a school district public library board member—none of which is a pre-vote signature on a COI, or a signed acceptance of a Whistleblower Policy or Code of Ethics.

Of course, per Public Officers Law §10, all school district public library trustees must take and file an oath of office “before he[11] shall be entitled to enter upon the discharge of any of his official duties.” This means, somewhere in the “pre-term” area after the election but before the newly elected trustee starts working, there is a zone where they can, based on a refusal to take the oath of office, not be qualified to start the term.[12]

The consequences of a refusal to sign a COI are a little less well-defined, but it is clear that if a board tolerates a refusal, the organization is not in compliance with the NFPCL.  The refusal to sign a Whistleblower Policy is not controlled by law, but the failure to actually follow it is.  And the failure of a board member to sign a Code of Ethics is a matter to be decided by the rest of the governing board.

 

What Happens Next?

The refusal to sign and participate in critical board policy cannot simply be ignored.  It has to be addressed, and the rest of the board has to follow the rules as they address it.

Barring any obvious provision in the bylaws or wording in a particular policy, what does the board use as a playbook for dealing with this type of challenge?  Upon confirming the factors leading to the refusal, a board’s executive committee,[13] consulting with the library’s lawyer and working from copies of the charter and bylaws, must consider the facts, could develop a solution.  The solution could be a revision of a policy to address a particular concern, or, in the case of an incomplete COI, removal of the member.  In no event should this be done without the input of an attorney, since the stakes are high, and feelings may be strong.

Thank you for an important question.



[1] In their quest to impose order on the universe, lawyers often use capitalization to express when a “thing” is a “Thing.”  For purposes of this answer, the various policies the member references are each Things, and so while certain style guides may disapprove, the capitals are there to stay!

[2] The way corporations are created in New York is a type of legal conjuring.  For more information on this particular type of conjuring, check out the New York State Education Department’s Division of Library Development Guide at http://www.nysl.nysed.gov/libdev/charter/index.html, and Education Law §255.

[3] This application of the NFPCL is set forth in NY Education Law §216-a, which is a fun read on a rainy day. 

[4] Intricate arrangements like this are why people like me have jobs!

[5] In the law, “director,” “board member” or “trustee member” all refer to elected members of the board of trustees.

[6] This is from NFPCL §715-a (c).  This language, or something substantially similar, should be in every library’s Conflict of Interest Policy.

[7] NFPCL §715-b.

[8] §806 Section 1(a) of NY’s General Municipal Law.

[9] Boards of museums and other cultural agencies chartered by the Regents are required to have a code of ethics; see 8 NYCRR § 3.30.

[10] I cannot imagine a good reason for not signing a COI, unless the policy was badly worded, there is confusion about the policy, or the director really does believe they should be allowed to vote for their wife’s company to install the new library floor.

[11] It’s 2019.  We really need to work on the pronouns in our legislation.

[12] As but one example of this, see 2001 Op Comm Ed No. 14,710

[13] Or the trusteeship committee, or the board, working as a committee of the whole…whatever group will ensure thorough assessment and the preparation for, if needed, a removal vote.

Tags: Ethics, School Libraries, Trustees

Topic: Music Lending Libraries and Copyright - 11/6/2019
A local county Music Educators Association has approached my BOCES and has asked if we would house...
Posted: Wednesday, November 6, 2019 Permalink

MEMBER QUESTION

A local county Music Educators Association has approached my BOCES and has asked if we would house & manage their music library. Apparently, the music library was at one point housed at this BOCES, but was then moved to one of the participating districts when BOCES said they would charge a fee for the service. It is my understanding that multiple school districts buy, share, make copies and physically loan choral and band sheet music to each other. One of the music teachers has indicated that the library consists of 581 choir pieces and that each piece has 100-200 copies (and that’s not counting the band music).

I’m concerned that the number of copies the teachers have made of each choir piece is a copyright infringement and also am unsure if it’s even legitimate to loan and share the original pieces among multiple districts for the purpose of shared usage and I’m hoping you can help point me in the right direction in terms of how a music lending library could work (legally!) in terms of copyright, licensing and fair use.

WNYLRC ATTORNEY'S RESPONSE

Yes, I can point you in the right direction…but I can’t take credit for drawing the map!

Since it pertains to a local “Music Educators Association,” this question brought me on a pleasant journey into the chartered territory of the “New York State School Music Association,” a/k/a “NYSSMA.”

NYSSMA is the organization for school music educators in New York.  Its mission is to “advance music education across New York State for its membership and students in member school programs.” 

Like libraries, schools, and BOCES, NYSSMA is chartered by the Regents of the State of New York.  To enable meaningful participation on a local level, NYSSMA is broken into 15 zones. 

In the member’s question, it sounds like a local zone of NYSSMA is asking a local BOCES for assistance.

Since both entities are chartered by the Regents, this makes sense; it’s like your cousin asking if she can store tools in your garage.  Except in this case…you aren’t sure where your cousin got the tools.  Or who might ask to borrow them.

As the member points out, this uncertainly could be cause for concern.  This is particularly true because under copyright law, a license is required to not only duplicate music, but to perform it, so an entity providing unauthorized copies could experience more than one type of liability.

Fortunately, there are many helpful resources to address this, and the basics are set out in plain language on the page of NYSMMA’s national affiliate, the “National Association for Music Educators (“NAfME”).

On their helpful page, found at https://nafme.org/my-classroom/copyright/, NAfME outlines the basics of managing a music library for NYSSMA members. 

As stated by NAfME:

“Unlike most educators, music educators must face copyright compliance frequently throughout their career. Although the thought of copyright can be intimidating and a complex subject, NAfME has a multitude of resources that can help you better understand U.S. copyright law.”

How does an institution considering providing this service get started? Any institution considering housing a music library (or script library, or an architectural plans library, or anything that will be licensed and/or loaned under particular conditions) for another entity needs to do these three things:

            1.  Research and assess the full scope of what will be required;

            2.  When the full scope is known, develop a budget, policies, job descriptions and a contract (or term sheet) to support what is needed; and

            3.  Finalize the arrangements in a way that mitigates risk,[1] and makes the service effective and sustainable.

Since this type of analysis can reveal the complexities of what may seem like a simple service, it is not surprising to hear that at one point a fee was required for it!

As the resources on the NAfME site show, housing and managing a music library is potentially a very detailed endeavor.  And while technology has made some aspects of the tasks involved easier, any institution providing such a service will need to make it a part of someone’s job.

So, after reviewing the basics on the NAfME site, it would be good to have a forward-thinking and specific discussion that addresses the following:

  • Whose property are the copies to be housed and managed?
  • Are there copies of the original purchase agreements and licenses?
  • How is the collection to be searched?
  • How is the music loaned out?
  • Who tracks copies on loan?
  • What is the approach for unreturned copies?
  • Who arranges for performance licenses, and who keeps copies of permission granted?
  • How are new works accessioned?
  • How are copies de-accessioned?
  • How are damaged copies replaced?
  • What is the value of the collection?
  • What is the cost of the service?

In addressing these questions, it is important to note that NYSSMA has access to numerous copyright-related resources as a member of NAfME.  For instance, as noted on the NAfME “copyright” page: “Through an agreement with ASCAP and BMI, NAfME (or MEA) sponsored groups are granted performance rights of music managed by these organizations. (This covers only performances sponsored by NAfME or federated state associations of NAfME.) However, if members wish to record their students’ performance of any work, permission must be obtained through Harry Fox Agency.” 

So awareness of NYSSMA’s rights, as parties explore how they could assist with housing and managing a NYSSMA-owned collection, would be critical.  Solid and well-coordinated compliance with license terms would also be important.

I know this is just the overture to a full answer, but thank you for a well-composed question.[2]

 

 


[1] For instance, if the collection is valuable, insurance coverage should increase.

[2] In researching this answer, I also enjoyed reading the discussion of the qualifications of a music librarian, found on the Music Library Association’s web site at https://www.musiclibraryassoc.org/page/MusicLibrarianship.  I don’t know if a person with music librarian skills is needed for a service like this (likely not), but only the analysis I set out above could confirm that.

Tags: Copyright, Music, School Libraries, Fair Use

Topic: Showing Films or Streaming Movies under Community Education Program at a School District - 10/31/2019
Our school district offers a Community Education program that offers courses on a broad range of t...
Posted: Thursday, October 31, 2019 Permalink

MEMBER QUESTION

Our school district offers a Community Education program that offers courses on a broad range of topics to the community. In some of these Community Education classes the instructor may want to show a DVD movie or stream a movie that is related to the course. Would this violate fair use and copyright? How would this also change the outcome if our school district has a subscription with SWANK Movie Licensing?

WNYLRC ATTORNEY'S RESPONSE

Flying at 10,000 feet, the answer to the first question is: if the class in in person (not online), AND the institution is non-profit, AND the only viewers are the instructor and the students enrolled in the class, AND the viewing is in the classroom or academic facilities, AND the content is part of the curriculum, AND the copy was legally obtained…then the showing is allowed under Section 110(1) of the Copyright Act (“110”).[1]

The answer to the second question is: if use of the precise copy is controlled by a SWANK license, then despite authorization under 110, the showing must be consistent with the terms of that license.  For that matter, the use of any other content service for viewing movies (Netflix, YouTube, etc.) must also conform to the terms of the service’s license.

Swooping a bit lower to the ground (but not into the weeds): exercising rights under 110 is why it is important that: 1) class syllabi show the relationship of materials to the goals of a course, 2) institutions maintain lists of enrolled students, and 3) institutions have designated spaces for instructional activities.

This is why reading the fine print on content licenses is important, since contractual obligations can over-ride rights otherwise granted by law.

How does a school librarian help instructors stay within the bounds of the law or the license?  A good rule for educational institutions is to have clear and pro-active policies and outreach[2] for instructors who need to show movies.  In this world where education gets hit with new laws, regulations, and policies every year, while clear policies are important, a simple message to instructors: “Need to show a movie in class?  Ask us how!” is a great place to start.

 


[1] Here is the full text of sub-section (1) of 17 U.S. Code Section 110: [Notwithstanding the provisions of section 106, the following are not infringements of copyright:] “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made….”

[2] What’s a sign that your institution’s policy is sufficiently “clear and pro-active?”  Instructors not using their own personal Netflix accounts is Exhibit #1.

 

Tags: Copyright, Fair Use, Movies, School Libraries, Swank Movie Licensing

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