Legal Poems

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BASSO:  Beware, if they were previously unpublished or the trademark is still monetized.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bottom line:  There is no bright-line rule I can provide to give assurances for works that are post-1923[1] (and, for unpublished works like journals or private recordings, items authored prior to that date).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,[2] 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] 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] 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.

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.

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]

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!

I won't tease the readers here; generally,[1] the answer is "no."

There are three reasons for this:

Reason 1: a public library director, unlike a library system treasurer and other local "public officers" isn't required by law to carry a bond.

Reason 2: If a public library has the right fiscal controls in place (meaning the director is never solely entrusted with fiscal authority--something that should never happen), there should be little risk of the type "bonding" is designed to mitigate.[2]

Reason 3: the majority of alleged wrong-doing by a public library director should be covered by a library's "Directors and Officers" and "General Liability" Insurance.

For this reason, while "bonding" is not required for most public library directors, a library having adequate insurance is critical.

This is why understanding the scope and costs of a library's "Directors & Officers Insurance," as well as its "General Liability" and "Premises Liability" policies, are critical annual tasks for a library board.

This type of assessment should happen every year with enough time to make sure the library can arrange new coverage if the answers are inadequate or the rates aren’t that competitive (no less than four months before renewal).

Questions to ask the broker should be based on a board's assessment of "what could go wrong?", and can include things such as:

Does our policy cover claims of discrimination, including sexual harassment?

Does our policy cover employee theft?

Does our policy cover alleged copyright and trademark infringement (or "advertising injury")?

Does our policy cover data breach of computers controlled by the library?[3]

What types of claims are excluded?[4]

What is the deductible?[5]

What is the process for reporting possible claims?

Insurance matters are complex and assessing coverage can present a lot of legal and industry jargon.

So, as a primer on the interrelationships and differences in "library world” between 'bonding," "insuring," "indemnifying," "hold harmless" and "Directors and Officers insurance" here is a short poem:

Library bonding, insurance, indemnifications...

What the heck are the differentiations?

Although the distinctions could fill a tome

Here are four rhymes to bring it home:

Director, officer, trustee...

should be insured against liability;

For anyone who with responsibility

The coverage can offer indemnity.

If your library will undertake construction

A performance bond should guarantee completion.

If you need to raise some building money

An approved "bond" can bring the honey.

For a library system treasurer[6]

An "undertaking" you must procure.

For all of these, routine review

Is something that a board should do.

[1] There is always an exception to what is "generally" true in the law.  For instance, a large library that puts additional fiscal responsibility on the library's executive director could require such a thing.  But that would be the exception...to find out why, keep reading.

[2] What is "bonding" you ask?  I have a short poem for you (see below).

[3] Many times, it is the cooperative library system's computers that need this coverage...an arrangement that varies from system to system in New York.

[4] This is a critical consideration!

[5] This one is important!  If you have a $75,000.00 deductible, for many claims, you might as well not have coverage.

[6] Actual requirement for a treasurer of a cooperative library system is: "Before entering upon his duties, such treasurer shall execute and file with the trustees an official undertaking in such sum and with such sureties as the board shall direct and approve. The treasurer need not be a member of such board."