Academic Libraries

To give readers a bit of context about my answer to this: between 2006 and 2017, I was an in-house attorney at a university.  During that time, I hobnobbed with a lot of other higher education attorneys; first, because the hobnobbing helped keep us current in our practice, and second, because attorneys--like murders of crows or parliaments of rooks--are social creatures, who just need to talk about the law.

One of the many higher education/law topics that could turn a flock of lawyers into a full-fledged symposium was the issue of what is meant by the term "faculty."[1]

Are adjuncts "faculty"?[2]  Are grad student instructors "faculty"?  If a full-time staff member teaches a course or two, are they "faculty?"

Complicating the issue is that the definition of "faculty" will vary from institution to institution, based on union agreements and accreditor criteria--to say nothing of state law and regulations.

And finally, a wrinkle can be created when a "faculty" member leaves regular employment with a college or university, but assumes a new (and often under-defined) status, such as:

• Retired faculty (whose retirement is governed by contract or policy)
• Retired faculty with honorary title "Emeritus" (a title which may or may not convey benefits)
• Terminated but "consulting" faculty who have a formal continuing affiliation with the institution (by contract or policy)
• Terminated but "proximate" faculty who don't have a formal continuing affiliation with the institution, but for whatever reason, may retain the trappings of their former affiliation (network access, library card, the computer they used when they were employed, etc.).

This issue of undefined status is the type of topic that will occasion lots of discussion and perhaps another round of potables at a lawyer’s kettle.[3]  Why the fuss?  Examples exactly like the one brought up in this question.  Lawyers hate it when we can't put things into minutely defined boxes to process through a legal formula (after all, the order we impose by doing so is the entire reason for our professional existence).[4]

Here are some examples of what "disorder" a clause like those in the question is meant, by the content provider, to avoid:

• The licensed content access flowing to any person with privileges at the institution's library (since many institutions allow community members to get cards);
• The licensed content access flowing to a large body of people affiliated with the institution, such as alumni or boosters;
• The content access flowing to groups or people with only a loose association with the institution (for instance, sometimes student clubs are open to community members); and
• Any other way the institution could allow access that could deprive the licensor of revenue.

Of course, just what is barred, and how "former faculty" access could violate it, is highly fact-specific.  So let's take a look at the member's specific question:

...we have more than 20 licenses that state in one way or another "current faculty" only.  I would take that to mean that former faculty, regardless if the institution allows them to keep their credentials for a year after termination, would NOT be legally allowed to continue to access those resources.  Am I right?

Yes, you're right: if a faculty member is terminated and has no ongoing affiliation as a faculty member (even a tenuous affiliation, such as an honorary appointment or "emeritus" designation, which could give some slim justification), then there is no basis to claim they are "current faculty."

In my experience talking with aeries of higher ed attorneys, the most common way this type of concern is raised is when a faculty member is terminated, and asks to take their institutionally-issued laptop computer with them (often because it is the sole computer they have)--continuing access to servers and databases that would otherwise be cut off.  Many places want to do the nice thing and say "yes," but there's a catch: the institutionally-issued computer usually has proprietary software and access that is only available to (you guessed it) current employees.  (In addition, if the faculty member was teaching, it might house a lot of content protected by FERPA.  So, this question of ongoing access to content only licensed for use by current employees is often the tip of a big compliance iceberg.)[5]

But at this point, I have passed from answering the question (remember?  The answer was "Yes!") and moved onto the practical considerations.   Practical considerations, of course, are where many of the devilish details reside, but having answered the question, we'll leave it there for now.

Hopefully, this answer from within the conclave of the higher education law has provided some assistance and clarity.  I wish the member well; raising this type of contract compliance concern, which can cut across departments at a college or university, is rarely easy, but it's the right thing to do for an institution.

Thanks for a good question.

[1] Other hot topics that guaranteed a searing debate included: how to negotiate contracts with musical acts, how to build support for meeting accreditation requirements into institutional policy, and the ups and downs of enforcing campus parking policies. 

[2] Yes, and damn important faculty, too.

[3] Yes, I had fun looking up the proper titles for flocks of birds. https://www.thespruce.com/flock-names-of-groups-of-birds-386827

[4] That, and to provide endless fodder for television dramas, based on our glamorous lifestyle and impeccable fashion sense.

[5] If the problem is caused by retention of a computer post-termination, the best way to address it is through a policy that manages this type of situation up-front. For such a policy, there are really only two options: wipe the licensed content and all institutional information from the computer before the former faculty member is allowed to keep it, OR make it clear that institutional computers cannot be transferred after termination (neither of these solutions, of course, is likely within the authority of the institution's library staff to implement.  Having a good working relationship with a head academic officer, and/or HR, can allow you to flag this issue to people in a position to do something about it.).

There are some really good, separate answers to this question.  I'll present them in the order I think would be useful to students and academics.

Answer #1: Clarity of ownership

Students own the academic work they author.  Even if they are completing an assignment with requirements tightly prescribed by a syllabus (such as: "Write an essay about four different civil rights cases heard in 2019; no more than 2,000 words; cite no less than four peer-reviewed law journal articles commenting on each case; identify a shared theme of the cases; conclude with a short paragraph as to which case is your favorite and why."[1]), the end result--if the student is the  only writer--is the student's.

Registration is not necessary to claim a copyright any more, but it remains strong evidence as to the ownership of a work.[2]  A student who authors something of importance to that student (such as a thesis, or a student film) should consider registration so they can readily assert that ownership.

Answer #2: Publicly establishing co-authorship

Not only do students own the copyright to their academic work, but students who are co-authors own that copyright together. 

This is true even if co-authors take on different tasks (such as: "Student 1 summarizes two cases, Student 2 summarizes two cases; each summary is 250 words; each cites to eight articles; they flip a coin to see whose paragraph on their favorite civil rights case is in the final version, and they proofread, edit, and finalize the document together."[3]), the end result--if they combine their work into a single whole--is the students'.

This is also true of students collaborating with a faculty member or a faculty research partner--even if one author/researcher has more experience than the other.  So, while most academic collaborations might not warrant the time and expense of registration, if the end result could be valuable (either financially, or as an academic credit in a published journal or on a CV) the co-authorship should be established in a written collaboration agreement, and confirmed with a joint registration.

Answer #3: Being able to quickly fight infringement

Before I dive into this one, a bit of commentary on copyright and academia:

The world of copyright--and of students taking credit for their artistic and academic expression--is changing: more and more authors are authorizing audiences to use their work through mechanisms such as an “open license” through the Creative Commons.

As a person who (still) believes that "information [still] wants to be free," I see this trend as a positive, but I do have one concern with this generous/generative approach: sometimes, the use of the work might be...wrong. 

What do I mean by this?  While an author might assume that anyone wishing to use their work would do so for a reason that aligns with that author's own perspective, values, and vision, that is simply not always the case. Sometimes, a person or organization could make a use of a work that is simply unacceptable to the author.[4]

Authors who think they could be impacted by this type of concern should consider using a copyright notice together with an easy way for would-be users to request permission, rather than an “open license.”  With this approach, an author/owner can still enable use, but will have a bit more control over what their work is associated with.[5]

The concern over work being used in a way that is objectionable to the author (and isn’t a fair use), is one of the biggest reasons to register a copyright: if a writer/photographer/muralist/etc. really wants to stop someone from infringing their work, that work's copyright must be registered, because that is the only way an author can sue for infringement and obtain an injunction.[6]

 Answer #4: Money

My final answer is 100% financial.

As the member's question states, authors no longer have to make a registration to claim a copyright. So what is the motivation to register?  In addition to answers "1" through "3," above, if a student/copyright owner, finding that their work has been infringed, wants to be able to sue for "statutory"^[7] damages, actual damages,[8] and attorney's fees, they need to have completed the registration of a published work prior to the infringement. 

Among many other things, these “statutory” damages, and the ability to recoup the costs of enforcement, are a motivation for a copyright attorney to take your infringement case without needing an up-front deposit.  So, it's another tool in the toolbox of copyright enforcement.

Final question

I believe answers "1" through "4" take care of the member's last two questions.  But what about the first one:

When is it advisable for an author/creator to register a work with the copyright office?

I don't usually play this card on "Ask the Lawyer," but I have to say, this is an almost unanswerable question.

For some people, the mere prestige of being able to look up their registrations at copyright.gov is important.

For others, the certainty of knowing they've done everything they can to protect their work from mis-use is critical.

And for still others--especially those planning to support themselves and their families through their intellectual property--registration is an important habit to ensure they are protecting their valuable property.   After all, copyrights are property rights left to a person's heirs after they die, just like money in the bank and real estate.

When I advise a client to register a Copyright, it is because they have flagged that work as important for some reason. For some, they might have already self-published it, and want to be able to control how their work is used. For others, it is because they plan to shop it or sell it, and they want to have optimal protection before they share it. And for others, it is because they suspect that the work has that "special something," and people in the future may copy it.

Any of these, and more, are valid reasons. For students, and those working in academia, the important thing is to be aware of your full body of work, to have clarity about its ownership, and --when you know you've created and own something important to you—to protect it.

Thank you for making sure today's students are thinking about their work and their intellectual property.

[1] Assignments like this are why students have either loved or hated my classes, AND why I never have to rely on a utility like "Turnitin" to detect cheating.  You just can't fake selecting a favorite civil rights case.

[2] The basics of registration, including the basic elements it asserts, are in "Circular 2" found at https://copyright.gov/circs/circ02.pdf.

[3] Back when I was in law school this type of group work drove me crazy.  I am a good team player professionally, but group academic work brought out the lone wolf in me.

[4] For example, a person who takes photos at a "Black Lives Matter" march, hoping the images will boost support for criminal justice reform, finds that their photos are being used by a political candidate who portrays the marchers as "the enemy."

[5] To carry forward my example, license for the photos could say "© NAME, 2020, to be used only with attribution and only after written permission.  For permission, please write to ADDRESS.  The author generally gives permission to those whose use will align with the author's values and agree to attribution."

[6] An injunction is a court order to "cease and desist" infringing use of the work.

[7] "Statutory damages" are those big numbers you used to see at the beginning of movies on video and DVD.  And although both mediums are quickly becoming a relic of the past, damages with fixed amounts set by law are not.

[8] The "actual" costs and damages created by the infringement.

I am always fascinated by the transformation documents can undergo, simply by operation of law, circumstance, or time.  For instance:

• Documents that are "education records" under FERPA can become simply "records," or "nothing" once the person to whom they pertain has died.[1]
• Documents that are "private information" under New York's new(ish) SHIELD Act[2] are no longer controlled by the Act if the digital copy is swapped for a copy on paper.
• Documents that use the "name and likeness" of a deceased performer, currently allowed, will be far more restricted when New York's new Civil Rights Law 50-f, which requires written permission for certain commercial uses, goes into effect on May 29th, 2021.[3]

And of course, documents can be "in" copyright, and "out" of copyright, or restricted due to medical content, or under terms of non-disclosure...restrictions that can shift based on any number of factors. 

An educational institution considering levels of access and use of student-related documents[4] has to consider not only these legal factors, but their unique policies.  Factor in fame,[5] and the stakes get even higher. 

Because of that complexity, I could muse/write/talk on this topic for hours.  But let's focus on the member’s specific questions:

1) When should on-site access to historical educational records be allowed (if ever), with reference to FERPA? What about providing copies of historical educational records?

If a former student is not deceased, there can be NO release of FERPA-protected education records to otherwise barred parties without written, dated consent.

If the former student is known to be deceased—or the passage of time suggests they might be deceased—then the records are no longer protected by FERPA, and that restriction no longer applies.

But as the member points out, there are other considerations.

2) When should on-site access to unpublished, non-educational records related to former students be allowed, in reference to state and federal copyright and privacy laws, and possibly FERPA? What about providing copies of these documents?
 

This is an interesting question because unless the records we're talking about ("related to former students") only contain "directory information,”[6] then they are by definition "education records" under FERPA.[7]  That is because the FERPA is intentionally expansive.  So old bills, dusty admissions files, and antiquated (but often fascinating) "administrative" records, although not "educational," per se, are still barred from release by FERPA if they relate directly to a student.[8]

BUT, as this question implies, FERPA isn't the only thing that could bar or restrict access to old records.  Copyright, privacy laws, and general prudence are all good reasons to not release institutional records unless there is a policy and process for doing so (like a policy for sending transcripts to future employers), or your institution is compelled to release them (like a judicial order or subpoena).

So, while a student will always have access to their records under FERPA, both former students and third parties should by default be barred from access or obtaining copies to records they are not entitled to.

Which brings us to:

3) Should we take a more risk-averse approach to high-profile alumni materials, or should our policies apply equally to all alums?

Many, but not all, educational institutions have internal archives—not formal "Archives" they hold in trust for the public (like the W.E.B. DuBois papers at University of Massachusetts),[9] but rather, materials they regard as important pieces of their institution's history and identity, so deliberately retain.

For some, this may be a complex and far-reaching catalog of institutional history.  For others, it may be simply hanging onto every program for every graduation ceremony.  And of course, for many, it will be special handling of any material that is related to famous or noteworthy alumnae.

Whether formal and well-funded, or informal and not funded,[10] every educational institution's internal archive should have a policy that covers: 1) that the archive exists to transition material from "records" into "archives;" 2) how those materials are selected; 3) how those archival materials are to be preserved; 4) how the archival materials are used and accessed internally; 5) how the archival materials are used and accessed externally; 6) the ethical standards and institutional values being applied in the overall operation of the archive. [11]

If an educational institution has in-house records of such magnitude that they warrant being their own archive (for instance, the Eqbal Ahmad papers at Hampshire College), yes, the development of that archive could warrant its own separate policy.  In that case, unique care would have to be taken to consider not only FERPA, but privacy laws, copyright (the author of an admissions letter is the copyright owner of that admissions letter...not the institution the letter was sent to, even if the institution retains the only physical copy).  

All that said, the end result need not be "risk-averse," so much as "risk-informed:" carefully assessing all the compliance concerns and risks,[12] how does an institution create an archive that suits its stated purpose and conforms to institutional ethics?  Until an institution is confident it has reached the right answer, access to third parties should not be granted, and only need-to-know access should be granted to those within the institution. 

I would like to thank the member for this question, it is a good one.  And I think we may have reached a new milestone at "Ask the Lawyer"—a reply where the footnotes are as long as the reply!

Thanks.  I wish you a well-resourced and culturally rich archive, and continue positive alumnae relations.

[1] See letter of LeRoy Rooker, Director, Family Policy Compliance Office, U.S. Department of Education letter of Date, found at https://studentprivacy.ed.gov/sites/default/files/resource_document/file/LettertoConnecticutStateArchivistRegardingEducationRecordsMay2008.pdf as of February 10, 2021, re-affirming "that the FERPA rights of “eligible students” lapse or expire upon the death of the student based on common law of privacy rights." [NOTE: This link was confirmed as no longer active and removed on 02/25/2022  as part of the routine review of "Ask the Lawyer" materials.]

[2] Text for this law can be found at: https://www.nysenate.gov/legislation/bills/2019/s5575.

[3] I am writing this on February 10, 2021. 

[4] This "Ask the Lawyer" answer does not address the issue of yearbook photos and student-generated art or academic work.  For that, see RAQ #108 and RAQ #91.

[5] What is "fame?"  It's a notion that is taking odd journeys these days.  As I said in footnote #3, I am writing this on February 10, 2021.  Jockeying with the impeachment proceedings for "fame" on the cover of today's digital New York Times: an article about a lawyer who appeared in virtual court as a cat.  I bet he can't wait for his 15 minutes to be over.

[6] "Directory information" includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.

[7] Here is the actual definition: "...those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution."

[8] There are exceptions to this, of course...one big one being the records of campus police.

[9] I value this archive because it has letters between W.E.B. DuBois and Mary Talbert, a Buffalo resident who was a stalwart organizer for civil rights and, on the side, historic preservation (she led the effort to save the house of Frederick Douglass).  I read her letters when I need a shot of pragmatic inspiration.

[10] Some "archives" exist because some wonderful employee couldn't bear to see institutional history thrown out, and they got permission to buy some boxes and put the "archives" in the storage closet. 

[11] The "Ask the Lawyer" from November 4, 2020 has more about ethical considerations for archival projects: RAQ #178.

[12] For this question, "risk" is not just legal risk, but relational and reputational risk, too.  After all, it might be legal to share a harsh evaluation from a thesis committee related to the work of a long-dead student...but is there value in doing it?  (Of course, there might be).  Knowing why something is in the archive, and having full confidence in that reason, is just as important as preserving the record in the first place.

This is a deep array of questions, requiring a deep array of answers.

But let’s start with the basics.

There are 64 SUNY campuses, some with more than one library.

What’s cool about these libraries?  They aren’t just collections of books on a campus, but distinct entities within their institutions, governed by the body of laws that apply to all libraries in New York, as well as the law that is SUNY-library specific.

The “SUNY-library specific” law is Education Law 249-a, which states:

The state university trustees and the board of higher education of the city of New York are hereby authorized to establish such rules and regulations as may be necessary and appropriate to make provision for access and use by the residents of the state of the libraries and library facilities of the public institutions of higher education under their respective jurisdictions.

In other words: SUNY and CUNY have libraries, and the boards of SUNY and CUNY can set those libraries’ rules, including the rules governing access.

SUNY’s[1]  board has established “such rules” by, among other things, adopting a policy on “Public Access to SUNY Libraries”[2]  which states:

It is the policy of the State University of New York (University) that the public is given access to University libraries insofar as possible. Since implementation of this policy has fiscal and administrative implications, campuses may extend the facilities of their libraries to the public whenever it can be done and in a manner that is both fiscally sound and consistent with their primary educational mission.

What does this mean for public access to those libraries?

State law gives SUNY broad authority “to establish such rules…for access and use by the residents of the state.” SUNY then uses that authority to develop a policy requiring “that the public is given access to University libraries insofar as possible.”  BUT, after asserting that broad goal, SUNY allows individual campuses to tailor that access based on the “fiscal” and “administrative” considerations of individual institutions.  So while access to the public is the stated goal, the conditions for access are really up to the individual libraries (and the academic leadership they report to).

I tooled around a few SUNY library web sites (I couldn’t resist the Charles B. Sears Law Library at SUNY Buffalo, my alma mater), and each have their own unique conditions for giving the public access.  Some make it easier to find that information than others.  I saw a range of conditions for access…anecdotal evidence that the libraries are using the latitude granted to them by SUNY policy.

And with that background established, I’ll answer the questions.

(1) What are the requirements for a SUNY library to provide access to the general non-campus community/public (those outside staff, faculty, students)?

While the law only goes so far as to “authorize” SUNY to provide for public access, SUNY-wide policy is that “the public is given access to University libraries insofar as possible… whenever it can be done and in a manner that is both fiscally sound and consistent with their primary educational mission.”

So my answer to the first question is: based on SUNY policy, public access to a SUNY library must be provided insofar as possible, provided the use by the public doesn’t interfere with the use of the students and faculty, and the burden of public use doesn’t throw off the budget.[3]

(2) Are there specific requirements/repercussions academic libraries should be aware of in regards to public access or prohibiting public access?

Absolutely, there are requirements and potential repercussions for access to libraries at state institutions.  I could write an entire book on them (and I bet someone has[4]), but here is my quick summary:

• Requirement: develop budgets, staffing plans, and operational policies that ensure the public is given access to University libraries “insofar as possible.”
• Requirement: in coordination with Campus Safety or Campus Police, develop a process to address the most serious public patron behavioral concerns. 
• Requirement: develop a privacy policy regarding the rights students, employees, and public patrons have under CPLR 4509.
• Repercussion: be ready to address civil rights concerns related to the library’s status as a public institution.

(3) What are the Section 108 repercussions for not allowing public access, specifically related to the pandemic? Would libraries still be protected if they provide public 'access by appointment' only? Would "temporary" non-public access still allow for application of the 108 exceptions?

For readers not familiar with it, “Section 108” is the portion of the Copyright Act, which gives special exemptions from infringement to libraries and archives that are open to the public.

Section 108 does not go into great lengths regarding what the requirement “open to the public” means, but some insight can be gained from how it handles access to special collections closed to the general public; such collections qualify for Section 108’s protection so long as they are open “to other persons doing research in [that] specialized field.”  So it is clear that “open to the public” is not intended to be a carte blanche free-for-all.

The current pandemic and SUNY’s efforts to combat it will certainly impact SUNY libraries’ ability to be “open to the public.”  However, I feel confident writing my conclusion that any institution that temporarily restricts all patron access will not be found to have not meet the requirements of section 108.  And I feel just as confident saying that scheduled visits by appointment—if that is what a SUNY library needs to do to ensure safety—would not cause a 108 concern, either.[5]

That said, I cannot feel the same confidence for any Safety Plan that completely and utterly removes all public access.  Public access, even if severely restricted, must still be a component in order to meet the requirements of 108.

(4) Can a SUNY library deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety?

Broadly and boldly speaking: yes.

BUT.

As discussed at the beginning of this answer, the law of the state of New York and the policies of SUNY give a great deal of latitude to libraries on a campus-by-campus basis.  Different campuses exercise this latitude in different ways.  This means that while the library in one SUNY location may be operating per a Safety Plan confirmed by a central coordinator, another library may be given a directive to develop their own. 

Or, as (former[6]) SUNY Chancellor Kristina M. Johnson put it:

We understand that…each of our campuses is a complex ecosystem with regular engagement with their respective surrounding communities.

Within those different plans will be different solutions for the safe operations of different sites.  Some of those plans will call for masks, because masks will be the only way the planned operations will be able to be conducted safely.  Other plans may only include modified operations that may be performed safely without masks.  And of course, any plan requiring a mask will include the proper ADA accommodations information for those who are not able to wear one.

While the country has watched as some people challenge the requirement to wear PPE on the basis of civil rights, a limited requirement to wear a certain type of protective gear for a narrowly tailored purpose with a general application is not likely to be found a violation of the First Amendment. But of course, when it comes to civil rights, the devil is often in the details.  If, for instance, only a certain type of facemask was required, and that facemask type did not work well with a certain body type, or the need to wear a hijab, it is possible that could trigger an ADA or First Amendment claim. The guidance being assembled by the Center for Disease Control and the Occupational Safety and Health Administration takes into account the diversity of bodies and identities that Safety Plans will need to serve. By using properly credentialed resources and thinking through Safety Plans from multiple perspectives, a SUNY library should be positioned to deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety.

Last note

In responding to these questions, I am mindful that general legal services are provided to SUNY institutions through the office of the NY State Attorney General, and many campuses have lawyers on staff. Therefore, to the greatest extent possible, any SUNY library, department, center, school, college or university finalizing a Safety Plan should take care that whenever possible, coordinated guidance from SUNY’s recognized legal advisers is incorporated. (Very often, this will have been done at the level where the institution is planning its emergency response.)  I am always gratified when a SUNY lawyer, or another lawyer, calls me to discuss my work for libraries, and I welcome those calls.[7]

As of this date (June 26, 2020) I have found no publicly accessible model safety plan or guidance from SUNY HQ with regard to the resumption of operations.  Rather, the SUNY page for COVID questions shows that the State University of New York is very much in an assessment and response mode, and the SUNY Library Consortium’s page shows that plans are still in development.[8] I am sure that will change as the situation evolves, and I encourage people to be attentive to that page, and their own administrations, for further specific guidance.   At the same time, since no one knows a library better than the librarians who works at it, I encourage pro-active assessment and formulation of access and safety plans by library leadership, informed by the people who work and study there.

This guidance was assembled directly from available materials, and while not legal advice, it is consistent with published SUNY materials and the law.  I hope it is helpful to SUNY libraries as you consider the continuation of your operations.

Thank you for a great array of thoughtful questions. I wish our SUNY libraries much health and strength for the days ahead.

[1] The rest of this answer will focus on SUNY, since that is the focus of the member’s questions.

[2] Found on June 8, 2020 at https://www.suny.edu/sunypp/documents.cfm?doc_id=330 and not to be confused with the “Open Access To State University Libraries” policy found that same day at https://www.suny.edu/sunypp/documents.cfm?doc_id=329.

[3] Having sat through budget meetings of all types as a student leader, journalist, academic administrator, and lawyer, I realize that the words “fiscal” and “mission” can be applied to many divergent ends.  Let’s not go there, this is about the law.

[4] I will ask my paralegal Jill to research this question and alert me if she finds one.  If she does, we’ll update this footnote.  Otherwise, you’ll know we didn’t find one.

[5] I am punting on the very practical consideration of the recent Supreme Court ruling regarding sovereign immunity, which arguably positions SUNY to not be very concerned about qualifying for protection under 108.  I am punting because, as the court put it, I am sure SUNY does not want to be seen as a “serial infringer.”  For more on that, see https://www.scotusblog.com/case-files/cases/allen-v-cooper/

[6] https://www.suny.edu/suny-news/press-releases/06-20/6-3-20/chancellor-johnson-departs.html

[7] (716) 464-3386

[8] This is not a criticism. A good plan takes time. And no plan other than a good plan should be implemented.

Before I answer this question, I do have to emphasize: as I wrote here, fair use was not modified during the height of the initial pandemic closures.  Further, there is no case law or regulatory guidance indicating things will be any different if we have to return to the level of lockdown experienced this Spring. 

There is no "emergency use" exception to copyright law--even under fair use.  That said, this is an excellent question that captures the experience of working in higher education right now, and I do have a few helpful things to offer in response.

Higher education libraries trying to support another immediate conversion from in-person to online learning should consider doing the following:

1.  Work with their academic and IT colleagues to optimize their institution's rights under the TEACH Act, which under the right conditions, allows the digital transmission of copyright-protected material.

"Optimizing," in this case, means presenting otherwise inaccessible materials in class, so the TEACH Act's[1] exception infringement can be fully used, while making the most of the medium.  For example, if a history class would typically read a chapter of a book before class, then meet in person to discuss the chapter, perhaps now a part of the online class could consist of the faculty member or students reading the chapter aloud,[2] and the class using an asynchronous message board to discuss it.

This method requires faculty to be flexible, but it is one way to ensure access for all, when all else fails.

2.  Unite with other institutions to re-negotiate the terms of digital licenses from academic publishers.

I cannot stress this one enough.  Academic libraries must unite, must negotiate hard, and must threaten to boycott any publisher that refuses to offer a reasonable price for students to access content online.  This was critical before COVID, and it is even more critical now.[3]

3.  Much easier, and even cooler than #2: plan to collaborate with students' local libraries to ensure students can take full advantage of Copyright Section 108's support of access via inter-library loan.

What?

That's right.  Let's say I am a college student from Littleplace, NY.   Suddenly, it's October and I have to vacate my dorm room at ABC College, due to a local surge in COVID-19.  To be ready for the rest of my (now online) classes, I need 12 articles, a textbook that costs $500 (that I was previously sharing with two friends), and a course pak I forgot in my dorm.

So long as I have access to the list of materials, I can head over to the Littleplace Library (or call them) and work to find the materials I need.  Using its rights under Section 108 of the Copyright Code, the Littleplace Library can get me a copy of the articles...possibly even in collaboration with the ABC library, or another academic institution with the right subscription.

In my observation, this is a very under-discussed option.  Remember, your students have a right to work with their local library to get copies under a combination of 108 and (on the part of the student) fair use.  The key is having the course materials listed in such a way, that the local college or public library can easily (and quickly) help them.

This, by the way, is one of the many reasons it is critical to keep open every single one of our small and mid-size libraries in small towns and villages across the country.[4]

4.  Use your institution's compliance with NY's Textbook Access Act.

This is another "if you have time" one. 

In New York, all higher education institutions and publishers must follow this law[5]:

Textbooks shall be sold in the same manner as ordered by such faculty member or entity in charge of selecting textbooks for courses. In the event such product is unavailable as ordered, the bookstore, faculty, and relevant publisher shall work together to provide the best possible substitute that most closely matches the requested item or items, and the publisher shall make available the price of such substitute or substitutes readily available.

This clause has always been applied to combat predatory pricing for course materials, but lends itself to the current situation, too.  If the instructor was given a discount digital copy, the students should be able to buy one, too.

5.  Take some time to examine the latest ruling on academic e-reserves and fair use, so you feel comfortable making the call when you can post things on e-reserve without permission.[6]  Fair use has not been "loosened," but it still has lots of room.  The full document has been updated to "Ask the Lawyer" as "Becker Ruling 2020."  It's boring,[7] but very instructive.

My best wishes for a supported and supportive prep for the Fall semester.

[1]The full requirements of this law can be found at: https://www.law.cornell.edu/uscode/text/17/110

[2] This would also allow presentation through adaptive technology, for those who need it per ADA.

[3] I understand if you are too busy coming up with an "August Staffing Plan" and trying to figure out where to get 10 gallons of hand sanitizer to organize the revolution.  But this really is important.

[4] As if I have to sell most of you on the importance of funding libraries.

[5] Full text at https://www.nysenate.gov/legislation/laws/EDN/722.

[6] Always use your institution's fair use form to record your conclusion.

[7] The helpful stuff starts on page 6.

This question seems simple, but it actually involves some high-end concepts of business law and liability.[1]

Most libraries, museums, theaters, and other units within large institutions are actually part of the same entity.  In other words, although they may have a distinct identity within their institution (“The Michael  Library” “The Peter Museum” or “the Catherine Gym”), there is only one actual legal entity (“Romanov College”).

Many people find these niceties hard to grasp, but here is why it is important: in this scenario, the single entity (the college) includes the on-campus copy shop.  This means that what the shop does, the entity does…including alleged infringement.[2]

This same unity generally applies to employees, too.  In a body of law called “Master and Servant,”[3] if an employee is performing a task related to their job, and not deliberately violating employer policy or the law,  for purposes of the legal system, the employee’s actions will generally[4] be imputed to the institution. 

This is why institutions are best served in this area by educating their employees about copyright, and documenting the employees good-faith efforts[5] to abide by the law (it is also why many HR manuals have warnings about the consequences of not following policy: it limits the institution’s ability to protect you).

This puts lot of pressure on the employees who staffing the in-house copy shop. What are their responsibilities?  Do they need to educate their co-workers on copyright risk?  Are they expected to protect the entire college?  Each institution has different policies and job descriptions that answer those questions differently.

That said, is there a simple approach that can help with this?  Yes.  For the in-house copy shop (NOT for an on-campus contractor), below is a framework to address copyright priorities with diplomacy, tact, and helpfulness.  It is designed to be used with an institution’s “Fair Use Assessment” form, and to route people to the person responsible for permissions at your institution[6]. 

NOTE:  All that said, any copyright-related form not custom-designed for your organization should be reviewed for cohesion and consistency with other institutional policies, including those in the employee manual.  Never use any copyright-related form without considering your institution’s unique needs and approach to copyright and liability!  If your institution has an in-house lawyer, compliance officer, risk manager, or insurance carrier, make sure they are part of finalizing any such form or solution. 

[INSTITUTION NAME] COPY SHOP COPYRIGHT HELPER

Hello!  Thank you for coming to the [INSTITUTION NAME] copy shop to arrange duplication of your class materials.

As an instructor who generates your own copyright-protected material, you know the value of copyrights to others, and you know there are penalties for improper, unauthorized duplication.

Please follow the process below.  When you check “yes” to 1 or 3, we are happy to assist you with your copies!

1. Do you have written permission from the copyright holder or their agent to make copies?

• Yes
• No

If “yes,” attach the permission, and let’s get copying!

If “no,” please move to question 2.

2.  Do you have verbal permission from the copyright holder or their agent to make copies?

• Yes
• No

If “yes,” please confirm the permission in writing, return to us and check “yes,” above, and we’ll get right on this for you!

If “no,” please move to question 3.

3.  Do you regard this copy as a fair use?

• Yes
• No

If “yes,” please fill out the attached [INSTITUTION NAME] fair use assessment form, and we’ll get your copies made!

If “no,” or “I don’t know,” please move to question #4.

4.  Do you find this process frustrating and need help arranging permission to use this material, or more input on fair use?

• Yes
• No

If “yes,” please see XXXX at OFFICE LOCATION, who assists with permissions at INSTITUTION NAME.  You can also call them at NUMBER or reach them at EMAIL.  We hope to see you again soon!

DATE:___________________________

SIGNATURE:___________________________

PRINT NAME:______________________________

MATERIALS (Title, number of pages):_______________________________

[1] Fun!

[2] This is one of the reasons many institutions opt to host a separate company for on-campus duplication services.

[3] I know!  The law needs to move on.  Perhaps “Captain” and “team member” can replace this.

[4] That said, never assume that is the case!  Every allegation of liability must be carefully reviewed by a lawyer, as there are many exceptions and precise formulas that control such things.

[5] Demonstrable, good-faith effort to abide by the law can actually limit damages when copyright infringement is attributable to a not-for-profit education institution.

[6] If you don’t have either or one of these, share this RAQ with the decision-maker at your institution who could make that happen.  Both the form, and a person who can facilitate permissions, are worthwhile risk management investments.

It is frustrating to know just the right resource for a class—and be unable to access enough classroom copies. 

Just as vexing is going the extra mile to seek permission to make your own…only to be told that you’ve reached a dead end.

And yet, class must go on.  We tried to ask…now can we just make those copies?

Unfortunately, a “good faith effort to receive permission” is not a defense from liability for copyright infringement.   Further, introducing evidence of the “good faith effort” to doing things the right way might work against a defendant, since it might limit their ability to claim they are an “innocent infringer” (someone who has no basis to know they are infringing, or made a reasonable but erroneous assumption of fair use). 

Of course, there are some exceptions to this rule.  If the purpose of the copies is to enable commentary and criticism, excerpts sufficient to illustrate the instructor’s point (and no more) may be duplicated.  And a library making an archival or preservation copy under §108 of the Copyright Act might duplicate the entire book (once, but not for classroom use).  But copies for students, whether or not they are sold, do not fall into these categories.

The best solution in this situation may be to find a stalwart staff member who likes to play detective, who can hopefully track down the actual copyright owner.  This can sometimes be determined on copyright.gov, can sometimes be determined from author’s websites, and can sometimes only be distilled by triangulating the information from about five different sources. 

And sometimes, even after a herculean effort, the answer cannot be found.  But no matter what, unauthorized duplication of copyright-protected work without permission can lead to liability and damages…and a defendant showing they tried to ask for permission before doing the copying might make things worse.

You, reader, will never know my answer to this question.

That’s because to truly answer it, I had to contact the member and get some more information.  The information I received, and the answer I gave in return, were so specific, the content was no longer suitable for a general-audience response.[1]

It had become legal advice, not just “guidance,” or “commentary,” or “analysis.”  It was confidential, tailored to one entity, and protected by attorney-client privilege.

This is the challenge with fair use questions: they turn on numerous precise details.

That said, I can say that the bare-bones scenario above gives a few reasons to be cautious.  The use of the entire work, and the display in a public area, are red flags.

But I also want to caution you about too much caution.  Both those risk factors: use of the entire work, public display—could be easily balanced by an exercise in compare-and-contrast, substantive criticism, or in-depth analysis.

This is why an educational institution should always use a “fair use checklist”[2] to address questions of fair use.  An educational institution that uses a checklist has a good chance of determining that a use is “fair,” and while doing so, also creates documentation showing that their conclusion—even if later ruled to be erroneous—was in “good faith.”  This exercise can limit damages, later.

The most recent case law involving use of a photograph in an academic setting, Reiner v. Nishimori,[3] did result in a finding of fair use, and is an instructive example.  In that case, students used the plaintiff’s copyright-protected stock photograph to practice making advertisements.

Here is the court’s analysis of the case, using the fair use “four factor” test:

1. The first factor is “purpose and character of the use.”  For that factor, the court held that because the photo was not being used as instructional material, but rather as raw content for the generation of mock advertisements, the factor was in favor of fair use.
2. The second factor, however, “the nature of the copyrighted work,” was found to weigh slightly against fair use, since the original work was “creative,” and the student use was also “creative.”[4]
3. The third factor, “the amount of work used,” was against fair use because the students used entire photograph.
4. The fourth factor, “the effect on the market for the copyrighted work,” was found to support a fair use claim.  Basically, in this precise instance, it was found by the court that no one who would have purchased or licensed the original would choose not to do so based on the students’ use.

That’s Reiner v. Nishimori, where fair use carried the day.  But with a few tweaks of the facts, it could have had a different outcome.

And that’s while you may never know the real answer to this question.

[1] This makes it sound like it was rated “R.”  I assure you, the content was PG.  It was just legal advice.

[2] A very good example can be found here: https://copyright.cornell.edu/sites/default/files/Fair_Use_Checklist.pdf

[3] Reiner v. Nishimori No. 3:15-cv-00241 (M.D. Tenn. Apr. 28, 2017)

[4] This factor routinely messes up judges, and I personally disagree that “creative” works might qualify for more protection that laboriously and carefully assembled facts.  But I am not a judge!

Some of the trickiest copyright questions I get relate to student work.

Why are they tricky?  Because of a self-imposed rule I have: find a way for the work to be done;  don’t let copyright interfere with art and science.[1]  In other words, our copyright glass of scholarship should be half full…of scholarship, not fear of lawsuits.

That said, most readers of this column will know that “educational use” does not justify the wholesale infringement of works, even if the purpose is scholarship.  To use a work without permission, the use must meet the criteria of “fair use.”[2]

But I’m getting ahead of the question.  Let’s bring it back to the beginning.

What’s the tricky issue here?  In this scenario, the band “released various music videos,” and asked the public to create new works based on the old, for entry into a contest.[3]

The band was essentially asking the public to create “derivative works,” which are new works based around a copyright-protected original (think movie sequels, musicals based on books, and paintings of paintings).

The faculty member plans to retain copies and direct students to use them after the completion of the contest, both for assignment and portfolio purposes.  Is that cool?

Now, if the band’s videos were expressly put into the “public domain” for the contest (meaning: no copyright protection) the question ends here. If the clips aren’t protected by copyright, the faculty member’s plans are just fine (it’s cool).[4]

Further, if the band gave a perpetual, irrevocable permission to any person who generates a new video using the clip, to use the clip for whatever reason they want, the question also ends here (again, retain the copy and using it as planned is cool).

But if instead, the band kept the videos protected by copyright,[5] and gave the public permission for only a limited amount of time (say, the duration of the contest), for a limited amount of purposes (say, for entering the contest), then yes, we are in a “danger zone” (not cool).[6]

However, before I agree that the ideal solution is to get the copyright owner’s position, I do want to make a case for fair use, which allows people to use copyrighted works in way that would otherwise be infringing (make copies, make derivative works, and even at times to sell them).

Based on the scenario described, it is not clear if the retention of copies as described in the scenario would be a fair use.  It would have to be justified under the four fair use factors, with the school and student being able to show that the retention of a complete copy and use of the clip for assignment and student portfolio purposes was justified.

The way for a school to do this is to use their fair use assessment form[7] and retain a copy.

To me, aside from the legal concerns, this is also an ethical issue.  A faculty member should not encourage a student to unknowingly infringe another’s copyright, especially if they know that student might include that work in an online portfolio of work.  This could put the student in legal trouble that is independent from the liability of the school.

Students, as individuals, do not have the same protections that higher education professionals have.  Schools, if they conduct a bona-fide fair use analysis, can limit the damages from alleged infringement.  Schools also usually have insurance for this stuff.  Newly-minted B.A.’s and M.F.A’s typically do not have the same resources.  This means, when the student gets sued, they are in a much riskier place than the school or the faculty member.

All that said, remember the mantra: find a way for the work to be done;  don’t let copyright interfere with art and science.  What does this mean?  While being cautious to not promote infringement, a faculty member in a medium such as film, or music, should not let students operate in ignorance of fair use, which is so important to both mediums.  Without sampling, without artistic call-and-response, we suffocate creative innovation.

If that sounds complicated, it is!  I will be reaching out to this member to talk the specifics through (that part is confidential).

[1] Promotion of “science and the useful arts” is the reason we have IP law in the first place (see U.S. Constitution, Article I, Section I, Clause 8).

[2] Or Section 110(a) or (b) of the Copyright Act. But you can read out that here https://www.law.cornell.edu/uscode/text/17/110.

[3] As gimmicks go, I like this one.  I wish my favorite author, Umberto Eco, had invited me to write a chapter of “The Name of the Rose.”  I would have had Adso and William fire-proof…uh, sorry, spoiler.

[4] I speak legally, not pedagogically.  I have no idea if this would be a good film class assignment; I was a Russian History/U.S. Constitutional law major at an experimental school with no grades or tests (Hampshire College).  Other than once attending a class on the classic film “Battleship Potemkin” and whatever skills can be gleaned from serially watching the musical “1776,” I have zero credentials to evaluate the curriculum of a film course.

[5] Which, by the way, the band might not even own.

[6] For the record, if I were the lawyer advising this band, the contest terms would have contained a clause allowing my client to revoke permission to use the clip and participate in the contest in the event an entry was contrary to their values (racist, sexist, transphobic, etc.). 

[7] More information using a Fair Use Assessment form can be found here: https://copyright.cornell.edu/fairuse

When this question landed on my desk, I had recently watched a viral video[1] on YouTube about how some people have no "inner monologue".

The video explained, in plain and accessible terms, that there are people who, rather than internally narrate their world, don't have constant chatter in their heads.  They don't have an "inner voice."  Rather, their brains "map" their reactions to the world, and those reactions are only put into words through vocalization.

The reason the video went viral is because for those of us with a strong inner monologue, the idea of living without one was mind-blowing.

My brain was still wrestling with this concept ("You mean there is no narrator in your head?  None??"), when I read the member's question.

And when the question hit my brain, just like that, I got it.

When I read this question, I didn't hear the words, but I saw the answer.  I couldn't articulate it, but it was there: a Venn Diagram of overlapping legal concerns,[2] "mapped out" in my head, just like the video described: CPLR 4509; FERPA; NYS Image Rights Law.

Only after I had mapped out that diagram in my head could I unpack the details and start to compose.

So, before we delve into the question, I want to thank the member for inspiring a bit of neuro-diverse-empathy in yours truly.  Our brains are endless mysteries; it's good to occasionally see ourselves differently.

And with that, here is my "(Academic) Library Right to Privacy Venn Diagram," unpacked and articulated, and, per the member's request, set out in a "Policy" format, ready to customize for your academic library.

(NOTE: Why are there TWO policy templates?  Because people may have a context-specific first amendment right to film in a public library or the library at a state university, while at a private academic library, only the rules of the institution will apply):

Now, before I go, just a few words on working with these policy templates.

First and foremost, while templates can be a great starting place (and these are designed to inspire generative conversation), they should NEVER be adopted without a thorough analysis and scrubbing by your institution.

For instance, a public or private academic institution could already have a campus-wide policy on filming people.  Or, on the flip side, the institution could have a strong Media Communications or Film department that relies on being able to send students out onto the campus for filming; a policy like this, with no warning, could cause an unnecessary confrontation.[3]  Policies within smaller units at a big institution can cause inconsistency and friction that can be hard to anticipate, unless you bring in some colleagues to pass the policy with.

So before passing a policy based on a template I've provided, here is who I suggest should be on an academic institution's "Library Privacy Policy Collaboration Team," and why:

The Director of the Library (I trust the reason why is obvious), and at least one staff member (the staffer will provide an in-the-trenches perspective; plus, collaborating on that policy is great training for following that policy).

The Director of Campus Safety/Security/Police.  Why?  Because 1) they might have to help enforce the policy; and 2) it is important that they understand the privacy obligations of the library.  Further, at a public institution, they will likely be a ringer who understands the nuances of "quasi-public" space (for first amendment concerns[4]).

The Dean of Students: Why?  Because 1) they might have to help enforce the policy; and 2) it is important that they understand the privacy obligations of the library are for the benefit of the students.

The Director of IT: Why?  Because 1) it is important that they understand the privacy obligations of the library; and 2) they must ensure those obligations are supported by the institution's current and future information technology.

A student government rep: Why?  Because 1) it is important that students have a voice in policies that are meant for their benefit; and 2) students can help articulate the reasons and importance of policies in ways their peers can relate to.  Bonus reason: participating will look good on their apps for grad school!

The institution's lawyer and/or compliance director: Why? Basically, you want the person who keeps an eye on all the rules at your institution, to make sure they are harmonized and are consistent with each other.  Institutional policymaking cannot be done in isolation.

Optional, but a gold-star member: your institution's Family Rights Education Act (FERPA) compliance officer (for a discussion on how FERPA and library privacy obligations interact, see FERPA and NYS Privacy Laws.).

And, in the case of this member's question: the Chair of the Media Arts Department: because as you meet, you can explore setting up ways for the film students to get the permission and image releases they need, in a way that supports their projects but respects the rights of others…skills they will need in "real life."

Okay, I can hear some of you (in my inner monologue!) saying: that's a huge meeting!  Do I really need to convene all those people?

Based on my experience as an in-house counsel at a University (ten years or so), my answer is: YES.

Why?  Because you don't want your first discussion about privacy with Campus Safety to take place when they ask you for the internet search records of a student who was reportedly making a weapon in his dorm room.  You don't want your first discussion about privacy with the Dean of Students to occur when they demand to know if a student was in the library at the time they are accused of driving drunk across campus.  You don't want your first discussion about privacy with a student rep to be when a "first amendment auditor"[5] shows up at your public university campus.  And you don't want to jeopardize your relationship with the IT Director by finding out she set up security cameras you don't know about.

And most critically: Privacy, security and safety on any college/university campus are a collaborative effort, and your library deserves special consideration within that effort.  Why?

No other space on campus has your precise mission and obligations.[6]  A team that knows and supports that mission, and those obligations, can be a great asset.

This is true whether your library's commitment to access and privacy is fully articulated by the team members' constant inner monologues, or is simply hard-wired into the "maps" in their heads.[7]

By jointly working on a policy, and paying attention to the details, either is possible.

Thanks for a great question, and best wishes for developing a strong, coordinated, customized policy!

[1] You can enter the rabbit hole here: https://youtu.be/u69YSh-cFXY I hope it's still there!

[2] NY CPLR 4509, FERPA, Civil Rights Law §50, the first amendment, 20 U.S.C. 1011(a), and a bunch of laws on trespass, Public Officers Law, etc.

[3] I'm a lawyer, so I am very happy about the concept of "necessary confrontation," but I like to save people time and stress whenever possible.

[4] This is not the place to dissect the first amendment's impact on public college/university libraries (see next footnote), but for the record, the "Higher Education Opportunity Act" emphasizes that ALL higher education institutions should be a place for "the free and open exchange of ideas."

[6] That said, an on-campus Health Services facility, Campus Counseling, Records, or other place with confidentiality obligations will have similar needs that might be instructive.

[7] I would like to apologize for any painful pseudo-science in this "Ask the Lawyer."  Stupid viral videos.