RAQs: Recently Asked Questions

Topic: Skating the Line between Helpful Information and Legal Advice - 9/19/2017
This answer was inspired by some recent questions… In the quest to give excellent service...
Posted: Tuesday, September 19, 2017 Permalink

MEMBER QUESTION

This answer was inspired by some recent questions…

In the quest to give excellent service and maximum access, librarians must apply intellectual property guidelines--a skill the average person has not honed. Library users, observing this skill (or having been alerted to a copyright concern by a librarian), may then ask for legal advice. 

Here’s an example:

WNYLRC ATTORNEY'S RESPONSE

LIBRARIAN:  We have that copy Moulin Rouge you wanted!

PATRON:  Thank you!  I am planning to generate a version of it with my commentary over it. 

LIBRARIAN:  How interesting.  Are you planning to get permission, or claim Fair Use?

PATRON:  Um…?

LIBRARIAN:  Perhaps you would be interested in this book on copyright, too.   

It is professionally appropriate for librarians to promote awareness of copyright, trademark, and the other laws that govern the use of content.  But what can happen next can be risky:

PATRON:  Thank you for the copyright book!  I am pretty sure my use will be considered “Fair.”  What do you think?

LIBRARIAN:  I am so glad you found the book helpful.  As to any use of the DVD we provided…that is a question for your lawyer.

Unfortunately, the most attentive librarians are often the closest to this exposure, since they are the most dogged about providing access—exploring the furthest reaches of Fair Use and Section 108 to do it.  However, it also means that the pressure to go one step beyond, and advise the patron about what they intend to do with the materials, may be frequent.  When it occurs, librarians must emphasize the boundary between good service and legal advice.  Here is a formula for that:

I [the librarian] provide access to library materials based on the law and policy of my profession and institution; you [the user] should consult your own attorney regarding any legal concerns about your use of the materials being provided. 

In the event any of the service happens in writing, it is helpful to confirm this in writing.  This doesn’t have to read like an official “notice,” but can simply be a nice note:

Hi [NAME].  We were glad to help you find [RESOURCE].  As I mentioned, if you have legal concerns about the material you borrowed, you should consult an attorney.

By that way, I am not suggesting that every patron question needs a disclaimer! But for those areas where librarians are actively applying intellectual property law, or providing access to law-related resources, the boundaries of excellent service and legal advice can blur.  Users, who have a high-trust relationship with their librarians, might not appreciate that boundary. Tightening the focus and emphasizing it protects the patron, protects the institution, and protects the librarian.

Tags: Copyright, Fair Use, Laws

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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.