Academic Libraries

The answer to this question shows the power of libraries working together.

Over the winter of ‘24 – ‘25, WNLYRC gathered a group of librarians from academic and research institutions to talk about pricing transparency and other priorities for database subscriptions. I was invited to the meeting to discuss possible legal solutions.

The result is the first edition of “A Research Librarian’s Guide to Negotiating E-Resource Contracts in New York State,” posted on the Ask the Lawyer Resources page.

The Guide includes contract assessment guidance, RFP language, a model contract addendum, and guidance for working with in-house legal counsel and purchasing specialists.

Informed by the real-world experience of academic libraries, the goals of this new resource are to: 

• Help libraries avoid the negative impacts of non-disclosure agreements (“NDAs”);
• Limit redundant purchasing;
• Assure the ability of making adaptive copies under the Americans with Disabilities Act of 1990 (the “ADA”);
• Protect rights created by Copyright Act Sections 107, 108, and 110;
• Protect library user privacy;
• Emphasize data security; and
• Respect the intellectual property of content creators.

The resource may be used together with ESLN’s upcoming template for evaluating purchase and use of AI products and services.

The Guide may be found here. Just as important, your experience using the Guide, and suggestions for improvement, can be sent through the form here. The Guide is a collaboratively developed resource, and with your help, the next version will draw from even more real-world experiences.

If you use it, please provide feedback to make it better.

This is a timely and important question.

Regarding the ability of law enforcement (including ICE, FBI, ATF, etc.) to enter a college or university campus: the administration will make that determination, and it will be based on many factors.

That said, by both state and federal law (Education Law 6434, and the Clery Act [20 U.S.C. 1092]), college and university campuses are supposed to have a relationship with local law enforcement, so some degree of cooperation with local police, a county sheriff, and the state troopers should already be in place. Many institutions, especially those close to borders or with particular security priorities, have established working relationships with the FBI.

Against that variable background, what happens within an academic library on campus (and in virtual spaces) is subject to further control.

To describe that and provide guidance, I have developed the below “GUIDE” that can be posted in academic libraries in New York State. The sections in yellow can be modified to fit your institution’s unique information. Feel free to use your own font (I am into Century Schoolbook these days, but Avenir Next has a quiet authority). You can also add additional protections and procedures; I have put in the bare minimum required by law and ethics.

NOTE: As will ALL templates, have your higher-ed institution’s lawyer review it first, whenever possible. They may have a few more considerations to add.

In addition to having clarity about the steps needed to demand student-related information, I want to encourage all academic librarians to stay calm. In the event you are asked for information about a student or colleague, follow policy and guidance (including what is below, if your institution decides to use it) and refer all inquiries to senior administration.

In the event of an enforcement action, one of the best things you can do is provide witness, and help that person get to a good lawyer. So, if you have extra adrenaline on this right now, using your librarian skills to assemble lists of legal aid and private attorneys with the right experience to help can be vital.

In summary: librarians at higher-ed institutions can’t control what campus policy is overall, but they can have clarity about the policy in the library. In addition, by attesting to what you see, and providing timely information to those who could be impacted, you are using your profession to ensure accurate information is timely applied. As of this writing (January 29th, 2025), helping your colleagues track accurate information about funded research and programs will help, too.

Thank you for thinking of your students and your ethical obligations as an academic librarian.

The Higher Ed Librarians’ of New York

GUIDE

To Responding to Law Enforcement & Others’

Requests for Library User Information

[INSERT YOUR LIBRARY LOGO HERE!]

FACT 1: “Library Records” in New York, including those held by higher education libraries, may not be disclosed to third parties without a duly executed subpoena, court order, or waiver signed by the library user, unless such disclosure is required for library operations (for example, reporting destruction of library property). [NY CPLR 4509]

FACT 2: “Library Records” in New York, including those held by higher education libraries, may not be shared with law enforcement (local, state, or federal) without a warrant, unless the library is the party filing the report (for example, reporting theft of library property).

FACT 3: At this library, a student’s Library Records are also confidential “Education Records” per the Family Education Rights Privacy Act (FERPA). While some records can be shared under FERPA, Library Records have an added layer of restriction (see FACT 1 and FACT 2).

FACT 4: The American Library Association’s Code of Ethics requires librarians to “protect each library user’s right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted.”

BECAUSE OF THESE LEGAL AND ETHICAL OBLIGATIONS:

1. Law Enforcement (local, state and federal): All requests for library user information will be referred to Campus [Safety/Security] or the [University/College’s] lawyer. Search warrants, subpoenas and court orders should be submitted directly to [position] for assessment, so prompt responses can be issued. Library workers are, by law and policy, barred from providing such information.

2. Attorneys: All requests for library user information will be referred to Campus [Safety/Security] or the [University/College’s] lawyer. Subpoenas and discovery demands should be submitted directly to [position] for assessment, so prompt responses can be issued. Library workers are, by law and policy, barred from providing such information.

3. Private Investigators: All requests for library user information will be referred to Campus [Safety/Security]. Library workers are, by law and policy, barred from providing such information.

4. Faculty, Staff, Coaches, Advisors: All requests for library user information will be referred to the Library Director, who will assess the degree to which such information may be shared under FERPA and CPLR 4509. If a student has signed a FERPA waiver that includes disclosure of Library Records, please alert the Library Director, so the information that the student has agreed can be shared can be promptly provided. Library workers are, by policy, barred from providing such information.

5. Information Technology (“IT”): All requests for library user information should be referred to the Library Director, including requests that could be fulfilled by IT. IT workers are, by law, barred from providing access to Education Records and Library Records without a FERPA waiver authorizing such access.

IN THE EVENT LIBRARY RECORDS OR INFORMATION RELATED TO LIBRARY USE IS DEMANDED DUE TO AN IMMEDIATE RISK TO HUMAN HEALTH (student or other), THE DIRECTOR OR LIBRARIAN IN CHARGE WILL WORK WITH OTHER [COLLEGE/UNIVERSITY] PERSONNEL TO MAKE A TIMELY DECISION BASED ON APPLICABLE LAW.

This Guide is posted and promulgated in the [NAME] Library to protect important privacy rights while promoting the orderly and safe operation of the campus.

The question is: what legal ways can I share these lectures with students?

The answers are:

1.  List the video series in the syllabus as a course material to acquire (I know...."BOOO").

2.  Work with the school's library to buy or license sufficient copies of the series for it to be generally accessible to the class through the library (I know... possibly also "BOOO", since the student has an extra step to access the content, but otherwise a decent option).

After these two, as they say: "I got nuthin'."

I cannot endorse the solution described in the question, since both creating a recording of the series and publishing it via Brightspace could create a possible claim of copyright infringement (even if the likelihood or discovery on a closed network was minimal).

I also cannot endorse playing the series during class, since the TEACH Act, which normally would allow watching a copyright-protected recording in class (either in person or via remote learning), does not apply to materials marketed as "mediated instructional activities" (such as a Great Course).[1]

I cannot even offer a "fair use" as a solution, since what you'd like to do does not meet the test for fair use, even though the purpose would be educational.[2]

This is an area where many instructors are going rogue, because the law does not offer a good solution (I am sure most readers have thought of a few not-so-good solutions by now).  But I cannot offer any guidance based on going rogue (well, not when it comes to copyright).

For more on the TEACH Act and fair use, see previous “Ask the Lawyer” answers including Streaming movies in school and the TEACH Act and Viewing DVD materials with remote-based students.

I hope your academic librarian can assist; this is an interesting challenge.

We have had a lot of questions about yearbooks over the years of Ask the Lawyer.[1]  We'll answer this submission with the understanding that for those who want further and deeper information, there's more to read in the "ATL" vault.

Regarding the yearbooks: Unless an institution hired an outside agency to compose the yearbook, the copyright to the complete book is owned by the school, which is most likely free to digitize or otherwise make copies of the books as a whole.[2]  However...

Regarding individual images/photos: If any images were generated by an outside[3] professional, they are likely still owned by that professional (or their heirs), which as the question alludes to, could complicate creating and using them.  In addition....

Regarding the images of former students: In New York, the use of a person's image for commercial purposes requires written permission.[4]  The law also requires permission to use the images of deceased people if they qualify as a "personality" (basically, a famous graduate).  So...

That means that for the uses described in the question, limiting liability is a 2-step process:

1.  Assess if the photos are still protected by copyright, and if they are, secure appropriate permission.  This can be tough, since the individual images will likely not be credited, and finding the original contract or documentation will be hard.  Further discussion of this step is below.

2.  Ask the former students for permission to use their image (an "image release").

This can be done in a way that is fun, simple, and reinforces the students' connection to the institution.  Here is a sample way to ask for a release:

Dear NAME:

[insert customized nice things from your institution as a greeting.]

We are reaching out to you in the hope that you will grant your permission to [SCHOOL NAME] to use this image for student recruitment and to promote awareness of [SCHOOL NAME]'s mission.  This means your name, and the picture we're including, would be in advertisements for [SCHOOL NAME].

If you agree, please sign below.

NAME, we appreciate you considering this request.  In addition, if you believe any of your classmates would be excited to help us out this way, please let us know!  [SCHOOL NAME] is always seeking ways to reinforce our connections to our alumni, while we also reach out to the alumni of the future.

[insert customized nice things in closing]

[signature]

LIMITED PERMISSION TO USE NAME AND IMAGE

This form can be signed and returned in the self-addressed, stamped envelope provided, OR a photo of the signed document may be taken and the image sent to INSERT EMAIL, whichever is easier for you.  If you send the document via email, please send your preferred telephone number for confirmation. 

Thank you for granting [SCHOOL NAME] this permission.

On this _____ day of _____________, ______, I, [PRE-INSERT NAME], agree that [SCHOOL NAME] may use my name and the above likeness for purposes of student recruitment and to promote awareness of [SCHOOL NAME]'s mission in any print medium, on the school's website, and in electronic advertising.

I appreciate that I can withdraw this permission and upon so doing, the school will immediately remove my name and image from the school's website, and from any advertising (print or electronic) as soon as the duration of the advertising contract expires.

SIGNATURE: ____________________________

Okay, that's the "image use" concerns.  Now, back to the copyright.

For professional photographers, the copyright to their images is part of their livelihood, so I very much appreciate that the member is thinking about that factor.  For amateur photographers who may have supplied their work, they are owners too, but ownership of the photo may have even fewer clues.

There are a few approaches to determining copyright ownership of "old"[5] yearbook photos.

To determine copyright ownership of "old" yearbook photos, you have to play detective.  Places where you may find "clues" about ownership include:

• The credits of the yearbook
• Old files from the yearbook committee
• Procurement/purchasing records from the school's business department[6]

The best documentation related to professional portrait photos is usually an old contract or invoice, since the ownership and permission to use the photos--if ever confirmed in writing--would likely be there.

If you are lucky enough to determine the photographer, but not the terms under which they worked, if they are still alive (or the business is still in operation) you can reach out to them for permission (bear in mind, they could say no, and you may need to negotiate for a reasonable fee).

If your institution can't locate ANY information on the photographer, it has a choice: don't use any of the images; OR use the images knowing there is a risk of infringement, and limit that risk by engaging in "risk management."

"Risk management" includes:

• Using images taken before 1927, since those are most certainly not protected by copyright;
• Using the oldest images that can suit your institution's purpose, since the older the image, the less likely it is that there is a person or estate monitoring use of the photos and waiting to claim you need permission to use them;
• Avoid using images of "famous" alumni, since photographers who know they once photographed a famous person during their freshman year, often recall that fact, and know they are sitting on a goldmine;
• Documenting your search for records related to ownership, so you can show the institution made a good-faith effort to locate the owner.

With all that said, the quick answers to the member's questions are:

Question 1) There is no one way or "best practice" to determine post-1927 copyright status, but there are many ways to look for clues, and many of them can be used to reduce or eliminate potential liability for copyright infringement;

and

Question 2) Yes, if an academic institution is going to use photos of former students for advertising, it MUST get written permission from the person depicted.

Thank you for sending in these thoughtful questions!

[1] See “Ask the Lawyer” yearbook-related questions on FERPA; Request to remove scanned pages; Photo Copyright and Copying

[2] The exception to this is if permission to use the photos was limited to one print edition.  Contracts for yearbooks post 1995 (or so) may limit this, but "old" yearbook contracts likely will not contain a restriction on the method of the yearbook's duplication.

[3] "Outside" meaning not an employee of the school.

[4] For more on this, see "Ask the Lawyer" here and here.

[5] What age is an "old" yearbook photo these days?  I feel like the moment you open a yearbook and say: "Look at those clothes/hair!" the photos are "old."  So, maybe, pre-2010?

[6] This may seem far-fetched, but some places hoard this stuff.  I love going through those type of records because they showcase the history of printing and document duplication.

First, some validation: the faculty member is wise to be considering this issue, since publishing contracts[1] almost always put the responsibility and liability for photo clearances on the author.

In this case, there are several layers of copyright ownership to consider: the original copyright of the photographer, the copyright of the books, and the copyright to any re- publication by which they are being made available (for instance, a digital archive).

Because of the publication dates (1887, 1893), the original copyrights (for the photograph and the original book), are most certainly expired.[2] The only concern would be if the images were somehow used to create a work with a "new" copyright...for instance, if the picture of the long-dead person was enmeshed with a picture of Janelle Monae on a rocket ship to Mars...which isn't the case here.

So, while in the law game there is a rule of "never say never," based on the dates, the images in this question should be free from copyright.  That said, as contemplated by the question, it is almost always a good idea[3] to extend a "courtesy acknowledgement" to a historical society, library or other archival resource that stewarded the image so it could be used for research. 

Even more important when using a digital source, however, is first confirming, and documenting, that the image isn't being taken from a website or repository in violation of any of their "terms of use" conditions.  Written confirmations from the archive, or keeping a screenshot of the "terms of use," image information, and metadata, are all good ways to do this.

Other risks of using old photographs for commercial publications are: the possibility that the image is being used as a trademark, and the possibility that the re-publication could make commercial use of images of deceased "personalities."  These should both be ruled out before publication.

In addition, when using a photo--especially for publication--it is a good idea to confirm that there are no ethical or relational concerns with using certain images.[4]  For these reasons, writing to the historical societies to inquire about images kept in their collections (as the faculty member in this example is doing) is a good idea...just ask for information, not permission.   Checking in with a person who focuses on ethical issues in that particular area of scholarship is wise, too.

[1] This is something "authorlaw.com" attorney Sallie Randolph and I often bicker about. I advise writers to resist such clauses (or demand better royalties for taking on the risk). Sallie, who has negotiated hundreds of author contracts, tells me this is not realistic advice, because for most major publishes, it's non-negotiable. But as I see it, everything in a contract is up for negotiation!

[2]  A good resource for double-checking the date when works are in the "public domain" (which can vary) is at https://guides.library.cornell.edu/copyright/publicdomain. Thank you, Cornell.

[3] I discussed this part with Sallie Randolph, too, and for once, we agreed! When contacting an organization about a public domain image, never ask for permission, but say something like "I am contacting to discuss using a public domain image from your [archive] to see how you would like the organization credited for having made the image available to researchers."

[4] For more on that, see "Ask the Lawyer" RAQ 172.

For this question, "Ask the Lawyer" brought in "Authorlaw.com" and copyright attorney at the Law Office of Stephanie Adams, Sallie Randolph, as a guest author.  Many thanks to Sallie for crafting this answer as the CASE Act unfolds.

The final rule applies a library's or archives' opt-out election to both the qualifying entity and its employees for activities within the employee's scope of employment. Therefore, the answer to the first part of this question is yes. All employees of the institution that has opted out are covered as long as the employees are operating within the scope of their employment.

Opting out seems like a good course of action for our institution but I wonder if there are reasons why we should not opt out.

There are several factors that may influence a library’s decision to opt out or not. The Copyright Claims Board (CCB) is new.[1] It heard its first cases in April of 2022, so there is not much historical data that can inform a decision either way. It might be wise to defer such a decision until the CCB has a longer track record.

Keep in mind that a library can always opt out of an individual case by filling out a simple online form.  Therefore, there is no real risk in deferring the opt out decision until later, perhaps after a first claim is made. Depending on the nature of the claim, it is possible that defending in the CCB would be preferable to defending the same claim in federal court. Opting out preemptively would deprive the library of this flexibility.

So far there have not been any cases filed against a library, at least not any listed on the CCB cases website: https://dockets.ccb.gov/search/cases. And so far, no cases have yet been closed, so final results are unknown.

To date, relatively few libraries have opted out. Those libraries are listed at https://www.ccb.gov/libraries-archives-opt-out/.

Given the early stage of CCB operations and the relative lack of useful data, I would be tempted to defer a final decision on preemptive opt out until more information is available. Until then you can easily opt out on a case-by-case basis.

[1] For more on the Copyright Claims Board (CCB), see https://www.ccb.gov/about/

As I have written before, a big rule for the "Ask the Lawyer" service is "don't reinvent the wheel!"

So before I answer this, I will reiterate the member's mention of the "Prison Library Support Network", and refer readers to their excellent guide "Reference Letter Writing: A Volunteer Handbook."

The "Volunteer Handbook" reviews a lot of what I would otherwise supply: how to be respectful of an incarcerated person’s needs and personal considerations when responding to a reference request, how to be aware of and work within the larger social dynamics at play, and--critically--the practical considerations of sending mail to incarcerated people (it's also well-written, which is always a plus).

To the "Volunteer Handbook" I would add just a few considerations for a library at a private higher education institution:

First, it is important to recognize that while library services provided in the state of New York by both public libraries and academic libraries are confidential, incarcerated individuals do not have privacy with respect to information they receive via the mail.  Therefore, the normal librarian/library user dynamic is "off."

Here is a sample of the scrutiny mail to a person living in jail or prison will be subject to:

(c) Printed or photocopied materials.

(1) When, in the course of inspection, printed or photocopied materials are found, the entire contents of such correspondence may be delayed through the correspondence unit for up to six days while the materials are subject to media review guidelines (see Part 712 of this Title).

(2) A limit of five pages of printed or photocopied materials (an individual newspaper clipping will be considered one page) may be received within a piece of regular correspondence (except as provided in paragraphs [3] and [4] of this subdivision). In order to facilitate media review, pages or clippings must not be taped, glued, or pasted together or to other papers.

(3) Not to exceed once every four months, an inmate may make a written request to the superintendent to receive in excess of five pages of printed or photocopied legal papers specifically related to the inmate's current legal matter (e.g., legal brief or trial transcript relating to the inmate's active case) within a piece of regular correspondence. The inmate shall make the request in advance...[etc.]

Ugh.  That's a lot of compromised privacy.[1]  So, from the outset, just keep in mind that per 7 CRR-NY 720.4, as well as a facility's customized policies and procedures, the usual rule of confidentiality will not apply.

Aside from that, I add three things:

1.  An academic library should specify via written policy if it offers library privileges to community members within a defined geographic scope (not just students, alumni, and employees).

2.  An academic library should have a policy setting out its capacity and limits for providing hard copy/mailed responses to reference requests.

3.  If a library is going to provide services specifically to incarcerated persons living beyond the geographic scope allowed by their policies (as the member's question says, they get questions "from around the country"), a specific policy should be developed for providing that service, even if the institution doesn't have a fully-developed prison outreach program.

These three policies should be applied evenly, fairly, and with attention to budget and capacity. This means:

With respect to #1, if an academic institution allows residents within 100 miles to have library privileges, and there is a prison within that radius, a person who is incarcerated may have library privileges (although their ability to exercise them may be limited).

With respect to #2, if an academic library provides written, mailed responses to users, there should be time and resource limits on providing that service to users, and those limits should be uniformly applied with respect to both staff hours, and copying/mailing budget.

And with respect to #3, if a private academic institution wants to provide services to persons living in jail or prison beyond the scope of their usual services, but it not able to develop a full prison outreach program, such services should still be done per a specific policy.

Why a specific policy, if there isn't a fully developed outreach program?  A few reasons.  First, it will help set the boundaries for the service, based on the library's capacity.  By establishing those boundaries, the library/institution will be able to show that the resource is being allocated fairly.  And finally, it provides clarity on how such services are provided, who is responsible for providing them, and how much is allocated for the expense associated with them (useful information if your institution ever wants to expand the service through a grant).

Here is a sample policy:[2]

[ABC Library] Policy on Reference Services to Incarcerated Persons

Policy

As part of our mission, the [ABC College Library] provides up to [20 hours per month] of reference services to persons incarcerated anywhere within [the United States].

Procedure

Upon receiving a reference request from a person who is incarcerated, the ABC Library assesses if the inquiry can be answered by the library within [one month (30 days)].[3]

If it can be answered, the question is placed in a queue to be answered in order of receipt, and an answer will be sent via the USPS within 30 days of receipt.

If it cannot be answered, either due to a large queue, or because it is not within the capability of the institution, a reply is sent stating "The ABC Library received your request for reference services, and regrets that answering your question is not within our capability at this time."

The position responsible for reviewing requests, and for assessing and effecting a timely response, is [INSERT]. This responsibility may be delegated, based on capacity.

OPTIONAL: To the greatest extent possible, persons within [NAME Correctional Facility], which is in the Library's area of service, are served per the library's policy on community members, and hours spent serving such users are not counted against the monthly amount allowed under this policy].

I appreciate that for many institutions of higher education, this question is deeply related to mission. Therefore, in adopting even the most informal policy, such as the one above, I also suggest considering a recital of how the work specifically plays into the mission of the institution.

Thank you for a thoughtful question.

[1] I get why, but as someone opposed to the carceral system in general (we can do better), this is just another reason to develop a better system.

[2] [Text in Brackets] in this sample policy indicates places where customization is most needed.

[3] An institution should research what time frame they feel is fair to offer; for some inquiries, sixty, or even ninety days may be reasonable.  This depends on the type of inquiries your institution is receiving...especially since this is a policy for a reactive service, rather than a deliberative outreach program.

MAKING A COPY ON THIS MACHINE

MAY BE SUBJECT TO THE COPYRIGHT LAW OF THE UNITED STATES[1]

This means 4 important things:

1.  Copying a copyright-protected work here could be a copyright violation.[2]

2.  Copying protected works is sometimes allowed under "fair use."[3]  We can't give you legal advice, but if you want to learn more about "fair use," go to https://www.copyright.gov/circs/circ21.pdf or see the [INSTITUTION NAME] Fair Use policy at [LINK].

3.  Copying a copyrighted work to accommodate a disability under the ADA is allowed.   However, to do that, please see the library staff, since adaptive copies have special rules,[4] and we want to help you (or a person you are assisting) exercise your rights.

4. As a library open to the public, there are special circumstances under which we get to make copies (libraries are special).  However, to qualify for that protection, this notice (which we have, by law, placed over the copier right in front of you), has to say what it says in bold at the very top, and we have to operate by this rule:

Any person or group is forbidden to use this machine to engage in the related or concerted reproduction or distribution of multiple copies of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group.

What does that mean? Entire classes should not come here and copy the whole text book for a course![5]  Please don't do that.[6]

The copy machines are here for your use, and we appreciate your consideration of these laws.

Thanks!

[1] This precise language is required by 17 U.S.C. 108 for the library and its employees to be protected against allegations of secondary infringement.

[2] 17 U.S.C. 106 reserves the making of copies to the copyright owner.

[3] 17. U.S.C. 107 allows copying under certain circumstances, but simply "educational" or "not-for-profit" use is not enough.  Read the guide at the link!

[4] See https://www.loc.gov/nls/about/organization/laws-regulations/copyright-law-amendment-1996-pl-104-197/.

[5] This is covered by 17 U.S.C. Section 108(f).  Section 108 also lets libraries make copies for other uses...but that is for libraries, not regular people or students using a copier in a library.

[6] Seriously, if we see you doing that, we have to ask you to stop.

To address this question, I took a look at several issues of "Skald Art & Literary Magazine."

Each issue was interesting, but it was viewing the works collectively that brought true rewards.

Every issue was a different size, was informed by a different design sensibility, and had a different type of binding.

One was like a small stack of matte postcards, bound together by silvery screws.

One was a larger, glossy collection of art and poetry, held together by wire.

Another was square-bound, with velvety paper, and blocky text of turquoise, mustard, and brown.[1]

All in all, the pile of "Skald" showcased why print, even if evolving, will never truly die.  There is too much to be gained from the tactile experience of holding words and pictures in your hand.

That said, as the member's submission suggests, the digitization of legacy publications can be important--and can require consideration of copyright.

In this case, the indicia on the physical copies was consistent with what the member described--the overall copyright of the magazine (a "collective work") was in the name of Villa Maria.  And without any sign otherwise, the listed student authors were the owners of the individual works.

As provided in Section 201(c) of the Copyright Act:

(c)Contributions to Collective Works.—

Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

Since technology has made not only the digital reproduction of compilations, but their dis-aggregation (as in, offering an article or picture separately from the work it was originally presented with), possible, a number of cases have ruled on when and how an owner of a "collective work" such as Skald can reproduce the work digitally.

The seminal case on this was New York Times Co. v. Tasini[2], which held that while the newspaper involved may have held the rights to digitize entire back issues, offering distinct articles separately for re-sale was an infringement of the authors' copyrights.

Almost twenty years later, additional cases[3] have further refined this issue, and set up a general rule that--unless there are terms limiting the medium or length of a license to use something in a collective work--the digitization of a collective work is a legitimate power under the work's copyright.  On the flip side, digitization that enables the ability to separately duplicate and commodify an author's contribution to such a work could be an infringement.

So, in this case, unless there are separate written agreements with the authors specifying otherwise, the owner of the literary magazine can arrange for digital publication of the work as a whole--but must take care that it is not creating digital copies of individual contributions.

This is where things can get tricky.  The college will have to plan out the project and pay close attention to the technology, taking care that the digital image is clearly a copy of the compilation, and not the individual contribution.

This is where the magazine's distinctive layout and design can really come in handy.  By digitizing the pages of the entire magazine--not just the work it features--the final product should capture and visually convey its identity as part of a collective work.  That approach should also be emphasized in the index language[4] and reinforced via the digital format (more on that in a few paragraphs).

The member's question doesn't touch on some of the other questions that digitization of student work can bring up, but since anticipating them is part of properly handling them, I'll list them:

• Some people whose images were used as part of a student art project could now object;
• Some students who feel their work is not a good reflection of who they are now (personally or professionally) could object;
• Student work that is perceived as out of pace with contemporary standards of respectful discourse could cause embarrassment or controversy;
• Some students could still try and argue that although it is clear the college owns the compilation, making the digitization available infringes their copyright.

Some of these concerns are "legal" (as in, they could bring liability) and some are "relational" (as in, they could bring bad PR, or unhappy alumni).  All of them, if not handled quickly and efficiently, can turn into a "thing."[5]

A catch-all way to give such concerns an orderly path to be submitted to your institution--and to address the copyright priorities I describe above- would be a statement along with the information accompanying the digital publication[6]:

"(c) YEAR.  The copyright to this collective work is owned by Villa Maria College.  Aside from viewing the images per the Terms of Use of INSERT PUBLICATION SITE, no permission is given to use any image or text from this collective work, for any purpose whatsoever.  For inquiries about using a particular work, interested parties must reach out directly to the author.  Any person who believes their work, image, or other right is impacted by this digital publication may contact CONTACT INFO[7] to report their concerns." [8]

Thank you for a great question!  And thank you for sharing a remarkable example of a student-led pub

[1] It looked like a yearbook for a school where a person could major in skateboarding.

[2] N.Y. Times Co. V. Tasini, U.S.Supreme Court, (2001)

[3] Such as Auscape Intl v. National Geographic Society (U.S. District Court for the Southern District of New York, (20040, and Mosca v. Yankee Publishing, Inc. (U.S.District Court of Maine) (2015).

[4] In New York Heritage, this is the section "About" a particular collection.

[5] What's a "thing?'  It's a... you know...a thing.  Like: an online petition, protests, law suit, angry letters, cancellation, documentary, Twitterstorm, etc.  While a "thing" can be started by just about anything, not having a designated place for people to direct their grievances--so they can be addressed promptly and respectfully--is often a major factor.

[6] Usually in the "Index" or "Information" function, and/or included as metadata (like the "About" section referenced in footnote #4).

[7] This should be the address for requesting removal per the DMCA.  For more information on having a designated address for DMCA "notice and takedown", see Ask the Lawyer Copyright protocols for restaurant menus.

[8] As with all template notices, it is best to have the final text reviewed by your lawyer, in this case after review of the specific publication and the final form of the digitization.

Questions that combine higher education, data access, and "terms of use" enforcement always give me a moment of sad reflection, as I remember Internet pioneer and activist Aaron Schwartz. It was an alleged overuse of an academic database at MIT in 2012 that lead up to his demise.[1]

While the circumstances in the Schwartz tragedy are different from the situation described here, both scenarios--and the care the member has taken in framing this question--illustrate the importance of considering what's at stake when an institution balances contract compliance, digital access, and privacy.

What's "at stake" here? The member's question combines concerns about:

• Confidential use of library resources
• Academic freedom
• Intellectual freedom
• Honoring the exclusion of certain academic and library actions from liability for copyright infringement
• FERPA

Let's do a quick run-down of these critical areas:

In New York, the confidentiality of library services is protected by Civil Practice Law & Rules ("CPLR") section 4509, which states that library records indicative of the identity of a library user may only be accessed with that user's permission, or per a subpoena or court order. CPLR 4509 applies to private libraries within academic institutions as much as it does public libraries or those within school districts. It works hand-in-glove with the American Library Association's and New York Library Association's recitals of patron confidentiality in their Codes of Ethics.

In New York, the commitment of a higher education institution to academic freedom is reflected in various ways. An example is the American Association of University Professors' 1940 "Statement on the Principles of Academic Freedom"[2]: "Teachers are entitled to full freedom in research..."

In New York and throughout the nation, the commitment of libraries to collaborate with others to promote intellectual freedom and access to information is reflected the ALA Library Bill of Rights: "Libraries should cooperate with all persons and groups concerned with resisting abridgment of free expression and free access to ideas."

In New York and throughout the nation, certain academic and library actions that would otherwise violate copyright are excluded from liability for infringement. This exclusion is to ensure there is a clear and well-defined legal safety net for content accessed in furtherance of certain intellectual and academic freedoms.

And throughout the USA, the privacy of education records, including library records, is assured under the Family Education Rights Privacy Act" (FERPA).

Serving as a counterweight to all of these critical factors are an educational institution's obligations under federal law and regulation with regard to alleged copyright infringement, particularly the regulations found in 34 CFR §668. If I were to delve into that and describe all of those obligations here, this answer would be 50 times longer, but a good summary of what compliance in that regard looks like can be found in this sample policy from RIT: https://www.rit.edu/its/rit-response-copyright-infringement.  In short:  since 2008, federal law requires higher education institutions receiving federal financial aid and other federal benefits to be express enforcers and re-enforcers of copyright.[3]

Sitting astride of all of this is whatever notification commitments (and other responses)  a college or university library agreed to when it signed the license agreement with the database provider (I have reviewed many of these types of license agreements, and almost all of them have some form of notification action requirement, which can range from a warning as described by the member, to ensuring the immediate cutoff of access by an offender).  This means that in addition to the ethical, legal, and regulatory factors that have to be balanced in a question like this, we also have to consider obligations that are contractual.[4]

With all of these very important considerations now laid before us, let's review what the member is doing:  1) getting a notification of a possible terms violation from the provider, and then 2) using a firewalled[5] process to identify the user and alert them of the alleged violation, and then 3) assuring the vendor they have addressed the issue.  As asked by the member:  Is this process appropriate in resolving the misuse of a database, or does it violate the user’s/student’s privacy rights?

Here is my short answer: since the method of response described by the member shows there is a big firewall between the vendor and the institution (meaning: the outside party never learns the actual identity of the alleged violator), I believe so.  BUT: the only real way to ensure privacy is protected as it should be is to confirm that the information flowing between the library and the IT Department never goes any further...within the institution.

What do I mean by that? The information should never go to campus safety or security. Unless it is per a very clearly articulated procedure developed for the operational needs of the library, it should never go to the office responsible for student discipline. And it should certainly never go to an employer on campus, a faculty member, or an advisor.[6]

This caution is warranted because, although a library within a higher educational institution is not a separate business entity the way a chartered public library is an entity separate from the town or city that sponsors it, for purposes of an academic library's adherence to privacy ethics and laws, it should be considered a stand-alone entity. Information can flow into it, but information should not flow out, even to other departments, unless the flow serves the operational needs of the library, and verifiably goes no further.

This 'one-way flow" for user-associated academic library records is an easy goal to articulate, but in practice, it can be very difficult to assure. As systems within large and small institutions get more integrated in the interests of security and economy, so too is it more difficult to separate one type of information from another. However, when it comes to privacy and library confidentiality, because of the high stakes involving intellectual freedom, academic freedom, and student privacy, extra care and attention is warranted.

The care of the member in submitting this question and describing the careful process they are using is emblematic of the type of care that should be used at all times when safeguarding user confidentiality and privacy at a higher education academic library.

Thank you very much to the member for submitting such a careful question.

RIP, Aaron Schwartz.

[1] I say "led up to" rather than "led to" because while many believe the latter, the facts of the case clearly establish the former.

[2] Found as of November 14, 2021, here: https://www.aaup.org/report/1940-statement-principles-academic-freedom-and-tenure.

[3] I won't mince my words about that requirement: I don't like it. But I am not a member of Congress.

[4] And voluntary. This is why it is very important to read database licenses and to PUSH BACK on clauses that require draconian responses to alleged violations.

[5] By "firewalled," I mean that the vendor never knows the name or other identifying information of the alleged violator.

[6] Unless the student has signed a waiver. Then it can go to whoever has permission.