We are finding that librarians within larger institutions (like colleges and museums) are the go-to resource for copyright questions, which could also include institutional copyright concerns. What should a librarian do if the "question" they are presented with is really an allegation of copyright infringement?
“Ask The Lawyer” has touched on this topic a bit before. In our 9/19/17 RAQ post “Skating the Line Between Helpful Information and Legal Advice,” we discussed the risks posed when patrons and co-workers confuse the helpful attitude and boundless information provided by librarians with legal services.
The bottom line from that guidance was:
When [asked for legal advice], 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.
The current question takes this issue one step further: what if, when asked to play this front-lines role, the librarian is alerted to a potential claim of infringement against their institution?
Here are a few examples of how this can emerge:
Coach to librarian: “I thought I would check with you…this guy called us and said we used his photo of the volleyball team on fliers without his permission. But we’re not-for-profit, so copyright doesn’t apply, right?”
Curator to librarian: “We used a photo of the artist to promote the current installation on Facebook and some photographer is claiming we need a license? But the artist said it was okay!”
HR Director to librarian: “You are our go-to on copyright. This person says they generated it on their own time, but we own everything our employees create on our computers, right?”
Sound familiar?[1]
Before anything else, it is important to say: many institutions have an established protocol for handling ANY threat of litigation, be it copyright infringement, slip-and-fall, or breach of contract. So first and foremost, librarians at larger institutions should know their institution’s policy or procedure for when a lawsuit is threatened.[2] The risk manager, business manager, in-house legal counsel, or the employee who coordinates insurance coverage is often the point person for this.
When your institution has such a protocol, the reply to questions that reveal a threatened claim of infringement should be “That sounds like it could be a claim of copyright infringement. You should refer that the XXX, who handles claims.” And whether or not the inquirer follows through, to protect both the librarian and the institution, the librarian should then e-mail XXX to say “Today I referred Coach/Curator/HR Director to you, as they were contacted by someone who might have a legal claim.” This makes sure the legal hot potato doesn’t stop at the library, even if the other employee doesn’t follow through.
Of course, not every place will have an XXX, and not every person will seek advice the moment the threat of a claim arises. Here are some alternate versions of our three scenarios:
Coach to librarian: “This guy called us about three months ago and said we used his photo of the volleyball team on fliers without his permission. We also put it on t-shirts. Can you look at this “cease and desist” letter?”
Curator to librarian: “Remember that awesome installation? Well, I’m forwarding you some emails between me, the artist, and his photographer. They say we owe like $2,000.00 in licensing fees, but it’s fair use, right?”
HR Director to librarian: “I need to send this letter about work-for-hire, can you review?”[3]
In these scenarios, institutional debate or engagement with the claimant is well under way. Even though things might be further along, and tempers hotter, the priority is still to end the engagement and get the matter in the right hands as soon as possible. So, even if your institution doesn’t have an XXX, and the situation arrives at your door a little more “hot,” the best thing to say to your co-worker is: “This sounds like a legal matter. We need to connect you with our attorney.”
If your co-worker has been so kind as to refer the (often angry) claimant to you without warning, and you are now on the phone with them, it is generally wise to:
1. Listen, and make notes of what the claimant is saying.
2. DO NOT ARGUE, DEBATE, or SUPPLY INFORMATION.
3. Use your customer service skills to simply say “This sounds very important. I have made a note, and will make sure someone gets back to you by [date].”
4. When arranging appropriate follow-up, minimize internal e-mail discussion, which could become discoverable evidence. Remember, the back-and-forth the employees engage in, unless it involves an attorney providing legal advice, is not subject to attorney-client privilege.
5. Get that legal hot potato to your attorney or insurance carrier and get out!
I realize that budgets are tight in the not-for-profit world, and not everyone has an attorney in-house or on call. This is where your insurance carrier could be a key player. Most bigger institutions have some form of coverage that addresses copyright. Your carrier does not want you to spend time arguing with a claimant, generating potentially damaging evidence! So in the absence of a lawyer, your insurance liaison and carrier (who will use a lawyer) might give your institution a place to send the “hot potato.”
The bottom line: every institution has a slightly different way it approaches litigation risk[4], but every institution should have an established way. Making sure library staff are aware of and comfortable with their institution’s protocols, and are supported in those protocols by trustees, officers and key personnel[5], are the keys to this issue. The statutory damages and mandatory attorneys’ fees often involved in copyright litigation make this a high risk management priority.
Librarians should be on the front lines of information access and fair use, but not the first line of defense for copyright litigation. Hopefully your institution appreciates this critical distinction, and supports it.
Or there’s always law school….
[1] I am sorry if any of these fictional scenarios have triggered stressful memories.
[2] If there isn’t one, I pose an alternative in a few paragraphs, but in most instances, there is.
[3] See the helpful script in paragraph two to remind people you are not a lawyer.
[4] Some alert carriers right away, others are wary of having a high claim number. Some carriers want to know the moment there is even HINT of a claim. This is something the person responsible for insurance will know.
[5] I am writing this guidance to be shared with such stakeholders, if it can be helpful.