Library Programming and Events

To address this very serious array of questions, we’ll take them one at a time.

To what extent is it the responsibility of the library to notify participants who attended the library program the person now diagnosed with COVID-19 attended?

The library is not obligated to notify individual members of the public regarding possible exposure; the county health department is obligated to notify the New York State Department of Health, and will coordinate the necessary level of response.[1]

If the library bears no responsibility, would you recommend the library, as a courtesy, notify attendees?

In a time of pandemic, information is power.  If the library has the capacity to notify attendees in a way that connects them to meaningful next steps, AND the County Health Department agrees that such notification will be helpful, then: yes, that would be a good thing to do.

However, because the slightest bit of mis-information in this step could potentially cause harm, such a courtesy should only be done in collaboration with the County Health Department.

What of others who may have been in the library at the time of the program - in many cases, the names of these individuals are not known...are we placing the library in a liability situation if we notify some, but not others?

An effort to empower people, through information, to take care of themselves and minimize the spread of disease will not expose the library to liability in the event only known attendees can be alerted.  As stressed above, the greater risk would be mis-informing the public, which is why coordination with the county health department is key.

If you suggest a courtesy call, can you please provide suggested language?

For reasons of confidentiality and accessibility, the notice should not be a verbal phone call, but rather (and only if confirmed as helpful by the County Health Department), a written notice sent to the library’s user’s email address.

Suggested text for your library to review with the health department is:

Dear Library Member:

As you know, the [INSERT] [County Department of Health] is monitoring the development of COVID-19 in our county.

As you can see at the listing [here], the Department has determined that on DATE, a person with COVID-19 attended the [INSERT PROGRAM NAME] program at our library, which ran from TIME to TIME on DATE.

Because the [NAME] Library values every member, and because we believe knowledge is power, we are working with the county to notify individuals who we know were present at the event.  As advised by the County’s guidance [here], encourage you to monitor yourself daily for symptoms of COVID-19.

Further information on what to do in the event of a health concern is on the Health Department’s website at [link].

Your library information is confidential and your participation in the [NAME] event will not be released unless upon your request.

Given that this is a situation related to the health and well-being of our community…[if] the Health Department request the names of program participants does CPLR [4509] apply? If so, can you recommend a response to such a question.

Yes, the confidentiality requirement of CPLR 4509 absolutely still applies.  Here is the language of that law:

Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute.

Because CPLR 4509 is so clear in its protection of patron information, I am not comfortable concluding that disclosure to a County Health Department is allowed for the “proper operation” of the library, or even in the case of a declared emergency.  Even during times of trouble, we need to follow the law.

However, if the library has the capacity to do so, upon request of the Health Department, the library can write to the impacted patron, and see if the patron will request the disclosure.

Sample outreach to see if the patron wants their information released is:

As a result of a person who visited the [NAME] library testing positive for COVID-19, the county health department has the name and contact information of other patrons who visited during the [EVENT].

By law, your library information is confidential.  Therefore, the [NAME] Library will only disclose your information if you request that we do so. 

Please let us know if you would like us to release your name, address, and phone number on file with the library to the [COUNTY] County Health Department.

You may also directly call the County Health Department about this at [NUMBER]; if you do, tell this it is regarding the COVID-19 case as the [NAME] Library.

In the alternative, the County Health Department may obtain the information via a subpoena or court order.

Those are my answers to the member’s questions.  Here are some additional thoughts:

Legal compliance and ethics are strong supports during tough times. Thank you to the member for thinking this situation through so thoroughly.

[1] 10 NYCRR 2.16v

This answer comes with many disclaimers, because the legal parameters of room access and rental at chartered libraries in New York is variable territory.  In other words: the answer can depend on the library’s “type” (set by its charter), its fundamental rules (found in the bylaws), its IRS status (the “501 (c)(3) mentioned by the member”), its day-to-day rules (controlled by policies), its lease (not all libraries own the space they occupy), and any deed restrictions (although deed restrictions on the basis of speech would bring concerns).

That’s right: education law, not-for-profit corporation law, tax law, real property law…this question has it all!

That being said, the member’s question centers on federal tax law; specifically, the library’s 501(c)(3) status, which not only makes the library tax-exempt, but allows it to receive tax-deductible donations.  This status is an important fund-raising asset, and its many conditions (including not engaging in politics) cannot be taken lightly.

Here is what IRS Publication 557, the go-to for creating a tax-exempt entity, has to say about political activity:

If any of the activities (whether or not substantial) of your [501(c)(3)] organization consist of participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for public office, your organization won't qualify for tax-exempt status under section 501(c)(3). Such participation or intervention includes the publishing or distributing of statements. Whether your organization is participating or intervening, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Certain voter education activities or public forums conducted in a nonpartisan manner may not be prohibited political activity under section 501(c) (3), while other so-called voter education activities may be prohibited. [emphasis added]

Like many guides from taxing agencies, this one is superficially helpful (I put that part in bold), but upon examination, employs a disclaim that gives very little concrete guidance (I underlined that part).  So, what’s a library with a spare room to do? 

As alluded to in both the member’s question and my opening paragraph, this question doesn’t turn solely on the IRS.  Any 501(c)(3) library that rents or allows free use of space should have a robust “Facility Use Policy”[1] that considers not only IRS regulations, but safety, equal access, and operational priorities (requiring users to clean up after their meeting, to not be noisy, to respect the space).  For a library in a municipally-owned building, care must be taken to ensure use fees are applied in a way that does not violation the NYS Constitution.  And for a library that rents, the Facility Use Policy must harmonize with the lease.

But the member’s question is about 501(c)(3).  So, having established that this consideration is but one of many when giving access to or renting space, here are the three things to consider when a 501(c)(3) rents or gives access to space:

1)  Rental income needs to be a very small percentage of the library’s revenue. 

Section 501(c)(3) requires that income from renting space can’t outweigh donations and other sources of income related to the library’s tax-exempt purpose.  This is something to discuss with the library’s accountant; while rental income isn’t barred, it can bring funding ration and tax consequences that warrant the attention of a professional.

2) The use of the space can’t “inure” to the benefit of any one company or individual.

Section 501(c)(3) also requires that a qualifying organization’s resources can’t directly benefit any one person or entity more than the general public.  For example, free use of the spare room by a person conducting a stained-glass workshop with an admission fee (even a nominal one), can be considered an “inurement.” [2]

3)  As raised by the member’s trustee, the use of the space cannot violate the bar on lobbying (influencing legislation) and political activity (supporting a particular candidate for office).

And as reviewed, Section 501(c)(3) bars political activity (as further defined in the excerpt from 557, above).

“Ask the Lawyer,” has had some fairly large answers, but I don’t have space to address every occurrence that could run afoul of the bar on “political activity.” But what about renting space, on the same terms as to any other entity, to an event like the one described by the member?

Here is what the IRS has to say:[3]

Can a section 501(c)(3) organization conduct business activities with a candidate for public office?

A business activity such as selling or renting of mailing lists, the leasing of office space or the acceptance of paid political advertising may constitute prohibited political campaign activity. Some factors to consider in determining whether an organization is engaged in prohibited political activity campaign include:

a. Whether the good, service or facility is available to candidates in the same election on an equal basis,

b. Whether the good, service or facility is available only to candidates and not to the general public,

c. Whether the fees charged to candidates are at the organization’s customary and usual rates, and

 d. Whether the activity is an ongoing activity of the organization or whether it is conducted only for a particular candidate.

When developing a Facility Use Policy, if a library is a 501(c)(3) charitable organization, and wishes to be able to rent space to (among others) political organizations for event, the above-listed factors should be built right into the policy.

Here is some sample language (some of it will sound familiar):

As a 501(c)(3) organization, the NAME library does not participate or intervene, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Therefore, the use of space in our facility by political organizations or for partisan political events is only available on the same rental terms as for the general public, and is subject to a rental fee that is charged equally to any political group or other individual or group.   NOTE: Certain voter education activities or public forums conducted in a nonpartisan manner may qualify for a fee waiver, just as do other free and open events conducted by a charitable entity for the benefit of the public.

So, what about the member’s scenario?   In the absence of a spot-on facility use policy, I suggest the following process:

1. Using the appropriate tax guidance, the library needs to decide if this particular “Meet the Candidates” event complies with 501(c)(3); in particular, is to be a “public forum conducted in a nonpartisan manner?”  Or is it skewed to benefit one candidate over the other? 

2. Is the sponsoring organization a charitable entity, or is there any risk that the terms for using the room would be an “inurement?”  Will donations be solicited?  Is money charged to enter?

3. If the answer to either shows a risk of violating 501(c)(3), then the library needs to consider if it wants to follow the formula to “do business” with a candidate for public office.  This would mean charging for the use as you would any other use.

If the library’s past practices make following those three steps too blurry, it is best to take a pass on this precise event, and take the time to develop an up-to-date and thorough Facility Use Policy that considers the types of uses the library will allow, and how and when it will charge for them. There are many good models out there to draw inspiration from, but before the board passes such a policy, it would be good to have it reviewed by a lawyer (who has ready the charter, bylaws, other policies, lease, deed, and any other relevant documents).

The member’s library is fortunate to have leadership that is thinking about both the first amendment and safeguarding the organization’s tax status.  Good work.  No matter what the final decision, awareness and commitment to these values serves your community.

This question has two parts: 1) liability for copyright infringement based on a live reading (without staging) of a dramatic work; and 2) liability for events at library facilities.

Let’s tackle part 1 first. 

Section 110 of the Copyright Act sets out a number of exceptions for educational and charitable use of copyrighted works.[1]  Unfortunately, “dramatic works” (plays) are largely excluded from those exceptions.  So while Section 110 is generous (for instance, there is a total exemption from liability for performance of non-dramatical musical works at horticultural fairs!)[2], “performance” of dramatic works (even without staging) is not as excused as other types of use.  

The other exception that could apply to the member’s question is of course “fair use.”  I won’t take up too much of this “Ask the Lawyer” to discuss that option, since the event described here does not sound like it would meet the criteria. [3]

For this reason, any library or venue asked or planning to host a reading of a dramatic work—even without staging it, even without charging admission—should be very cautious.  Unless there is a confirmed exemption under 110 (which would be for classroom use, or for a performance for people with visual impairments), or a documented “fair use” under 107,  proper licensing should be obtained.

And now for part 2. 

Most libraries have some form of policy, and maybe a “facility use contract,” allowing groups or individuals to use their space.  Some charge a small rental fee, others do not.  Some have express restrictions on use by businesses or political groups,[4] others do not.

What’s important to the member’s question is that any use of library facilities should be governed by clear, uniformly applied, mutually-understood terms that:

• ensure ease of distinguishing official library events from those simply using the library;
• require any outside group to expressly assent to following library rules and procedures;
• protect the library from any third-party claims based on the group’s use of the premises.

When it comes to copyright, this last part is essential, since the copyright law allows for “vicarious” liability that can include “innocent” (meaning, they didn’t know about it, or didn’t instigate it) infringers. 

This is what the last Congressional committee amending the Copyright Law has to say about “vicarious liability” for performances:

Vicarious Liability for Infringing Performances.

The committee has considered and rejected an amendment to this section intended to exempt the proprietors of an establishment, such as a ballroom or night club, from liability for copyright infringement committed by an independent contractor, such as an orchestra leader. A well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers. To be held a related or vicarious infringer in the case of performing rights, a defendant must either actively operate or supervise the operation of the place wherein the performances occur, or control the content of the infringing program, and expect commercial gain from the operation and either direct or indirect benefit from the infringing performance. The committee has decided that no justification exists for changing existing law, and causing a significant erosion of the public performance right.

As a not-for-profit institution, a library may have some more defenses than the average night club owner, but there is still a threat of liability. 

So how do venues reduce the risks posed by “vicarious” liability? Often, they ask the main performer, or the entity renting the facility, to “indemnify” the venue for any liability related to the performance.  To ensure they are actually protected, they also demand a certain amount and type of insurance, and require that the venue be a “named insured.” [5]  Later, if they are sued for an infringing performance, the venue will invoke the indemnity, and be defended by and have their damages paid by the renter or performer. 

So, to recap, the following factors are potentially relevant to both parts of the member’s question:

• This particular use of a copyrighted work does not seem to fall under the exceptions of Copyright Law 110;
• A reading of a dramatic work could be a “fair use” under Copyright Law 107, but that conclusion should be carefully documented, and again, does not seem to fit the described situation;
• A library should have a policy and contract that enables the clear distinction between library and non-library events;
• A library should have a “facility use” contract that protects it from any risks of allowing others to use its facility, including performance-related liabilities;
• A library should have insurance coverage that takes into consideration use of its facility by others, including use for performances;
• For certain high-risk uses (if allowed) a library can require an indemnification and insurance;
• For certain high-risk uses, a library can simply decide the event is too risky.

This assessment of risks and ways to mitigate them is called “risk management,” and the member’s question is a great example of how to start the process.  So, what was that question again?

…regardless of whether an audience is brought out for the performance or not, regardless of who is 'sponsoring' it, this would be in violation of the creator's (who is still alive) copyright claim to the work. Further, that the library would most likely be the liable party.

Am I right?

Except for would changing “the liable party” to “a liable party”: yes, the member is correct…there is a risk.  How can this assessed risk be managed? One of four ways:

• Have the group obtain written permission from the rights holder (for a reading at that precise location);
• Locate a 110 or 107 exception;
• Require an indemnification and proof of insurance from the group; or
• Make a risk-management decision to not host the event.

Thank you for your careful question!

Exeunt lawyer, stage left.

This is an important submission, because access is the mission of every library, and access is the purpose of the ADA.  When it comes to ADA accommodations, an institution’s commitment should always be: plan for access.  

Under that principle, the answers to the member’s questions are:

• When showing a movie, always use some type of assistive technology to ensure accessibility.
• When having a large-scale event, always budget and plan for an ASL interpreter.
• To ensure people can advise the library of the need for specific accommodations, have a well-developed and publicized accessibility policy.

By planning for access, an institution can never go wrong under the ADA.

But the member wants to know: when planning for access, what does the law specifically require?

As always, what the law requires can depend on a lot of different factors.

The ADA and its enabling regulations do expressly require certain entities to use captioning technology.  For example, all commercial movie theaters (except drive-ins), and all televisions built after 1993, must include captioning tech. 

But while a specific requirement for captioning has been an important asset for the Deaf and Hard of Hearing communities for decades, libraries are not on the list of legislated adopters.  Rather, just like any other place of “public accommodation,” libraries have a broader mandate; they must ensure “…no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services….”  

In other words, while captioning is not expressly required at a library, accommodations are.

The ADA doesn’t always mandate the precise means of accommodation; captioning can be but one of the many ways a library ensures a Deaf patron can access a movie.   What’s important is not the precise accommodation, but the removal of a barrier to service.  

That is why a big part of ADA compliance is not just following narrow rules (although there are plenty of those, especially when it comes to design of new buildings or the mass purchase of technology), but keeping up with and considering all available options for access. 

How can a library easily assess all those options?   A great resource for learning about the latest ADA accommodations—organized alphabetically by disability—is AskJAN.org.[1]  Although created primarily for employers (the “JAN” stands for “Job Accommodation Network”), JAN is an invaluable jumping-off place for learning the specific barriers a person with a disability may face when trying to access a service, and how a provider can remove those barriers…within that provider’s budget. 

For example, a search of “deafness” on AskJAN shows—among many other things—an array of “real-time captioning” services, together with providers and a description of how they work; this allows for comparative shopping and a more nuanced use of services.  To use the member’s movie example: if the only version of a movie a library wants to show doesn’t come with captioning, a resource like AskJAN can help find an alternative—which is what the library is required to do.

Which brings us to the heart of the member’s question: what are a library’s specific obligations?  At the start of this answer, I have used the lawyer’s go-to response: “it depends.”  But what does it depend on?

Precise obligations under the ADA vary based on institution type, size and budget.  For example, a very large municipal library with a relatively large budget and older facility should address accessibility questions through their ADA Title II-mandated self-evaluation, compliance policy, and complaint procedure; such an institution should also have to have a “responsible employee” overseeing that procedure.  This is because ADA Title II, which applies to government bodies and agencies, expressly requires a government agency to have those resources in place.[2]

On the other hand, a small association library with a small budget and a new building will fall under different sections of the law, and have somewhat different obligations.

But no matter what section of the ADA applies, the goal remains the same: to not deny service if there is an aid or adjustment that can help…unless that aid or adjustment would fundamentally alter the service, or be an “undue burden” (i.e. too expensive or difficult[3]). 

This is why every library should have a custom-tailored[4] accessibility policy guiding the library’s planning for ADA-related operations (which, at a library, are practically all operations).  While such a policy can take time to implement, and must be updated from year-to-year, in the end it is both a respecter of people and a time-saver, taking the painful guess-work and last-minute planning out of ADA compliance, and helping a library plan for access for all. 

For instance, as suggested by the member, such a policy can set a threshold for when events will automatically have an ASL interpreter, and when/how a patron can notify a library about an accommodation needed at a smaller event.  Further, it can ensure there is a budget line to pay for such accommodations, and that staff are trained and ready to answer accommodations-related questions gracefully. 

A thorough, custom policy will not only pinpoint a library’s specific ADA compliance obligations, it will make sure:

• the library is not making ADA decisions ad hoc (a recipe for a law suit);
• that its documentation shows compliance if a violation is claimed;
• that ADA accessibility is built into budgeting, staffing, training, purchasing, and event planning;
• that the institution is placing the needs of all patrons at the forefront of planning.

If a library doesn’t have such a policy, forming an ad hoc “accessibility committee” comprised of both staff and board members[5], and an attorney, should be a top priority.

How can that play out?  Let’s return to the member’s scenarios. 

With a policy guiding the way, the answers to the member’s questions would unfold in a methodical way.  The library would check the latest alternate assistive technology in the early planning stages of the event.  Consulting AskJAN, they might determine that perhaps remote CART[6] technology can help, and their planned budget line would pay for it.  If the projected attendance is under the threshold set by the policy (determined by considering the library’s area of service), there is no automatic ASL interpreter; however, the publicity and posted policy will include the ways attendees can notify the library of any necessary accommodations.

If, after the movie, there is a complaint about ADA compliance, the policy and documentation showing it has been followed will help resolve the complaint in its early stages.   But more critically, the details of the event will reduce the risk of such a complaint,  since any person who needed accommodation had access that was both well-planned and easy to arrange. 

Thank you for these important questions.

[1] https://askjan.org/a-to-z.cfm

[2] An example of the consequences of non-compliance can be found here: https://www.ada.gov/sacramento_ca_settle.htm

[3] This legal language “undue burden,” causes some of the most painful moments under the ADA.  When a small, budget-challenged institution is forced to call a necessary accommodation a “burden,” no one feels good.  Sometimes the law picks the wrong work; I would have gone with “unduly disproportionate.”

[4] Although seeking inspiration from similar institutions can be a great place to start, an ADA policy is not a document to cut-and paste from another institution. 

[5] Page 62 of the 2018 “Library Trustees Handbook,” is a great resource for a library directors who need to give trustees an summary of the magnitude and importance of this issue.

[6] Communication Access Real-time Translation.

This is a lovely idea, but any library considering something like this should get assurance that the work is in the public domain[1], or have permission from the authorized licensor (who is not always the copyright holder), before filming/streaming. 

This is because an audio recording[2] of a copyright-protected book is likely a “derivative work” (a work based on the original[3]) that, without permission, constitutes an infringement. 

A great example of a permitted derivative work is a commercially published audiobook.  Check out the credits on an audiobook listing—they generally recite two copyrights: the first for the original work (used with permission), and the second for the audio recording.  This is how the law both limits and promotes such recording.

A few other legal considerations approach this scenario, but don’t quite apply:

• “Fair Use” would not apply, as the reading would likely use a large portion (if not the entirety) of the work, and the purpose is not transformative, nor for commentary/criticism. The fact that the transmission would be for a worthy goal, consistent with a library’s mission, is likely not enough to make the use Fair--even if the effect on the market would be insubstantial.
• If the recordings were purely for ADA accessibility[4], there could be an argument, but such a project would need to be planned carefully, but that is not the purpose in the example.
• The TEACH Act, which allow academics at TEACH-registered institutions to stream copyrighted content, but that only applies under very precise circumstances.[5]

That said, because a live reading could promote the works featured, I imagine there are publishers who would grant a limited license for such an endeavor.  However, depending on their contract with the author(s), a publisher might not be able to!  In any event, asking permission is a case-by-case exercise.

The good news is that the reading itself, at the physical location of the library, is allowed so long as it meets Section 110 (4)[6] of the Copyright Act (this probably isn’t news to most librarians). 

Very often, attorneys are perceived as throwing cold water on project like this, and hopefully this answer has shown why that is usually our only option.  That said, if there is ever a specific work a library wants to plan an event around (a specific book, etc), it is worth it to investigate the status and licensing posture of that work.  You never know what you’ll find when you check the status, or the ability to get permission, for a specific work.

I wish you all good reading.

[1] No longer protected by copyright…and for that matter, not affixed with a trademark the owner could claim you infringed.

[2] Because it technically “makes a copy” as it goes, streaming is often considered duplication.  If you ever feel like causing a healthy debate, ask three intellectual property attorneys and a U.S. Supreme Court Justice to comment on this line of case law.

[3] Per Section 101 of the Copyright Act: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. [Emphasis added.]

[4] Per Section 110 (8) of the Copyright Act.

[5]Those circumstances are listed in the ALA’s TEACH Act FAQ.

[6] Law linked here.