E-Books and Audiobooks

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.

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.).

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.

The answer to all of the questions is: Yes, buying an MP3 audiobook on CD, copying it, and putting the copy on a drive accessible to others, unless the CD’s license authorizes it, would be copyright infringement [1].  

An audiobook’s license is what that defines the permission a user has to copy the file.  A typical license for an audiobook contains something like this:

When you purchase [Vendor] Content, [Vendor] grants you a limited, revocable, non-exclusive, non-transferable license to download or stream such [Vendor] Content to your computer and/or other device(s) solely for your personal, non-commercial use. You agree to not otherwise copy, reproduce, distribute or use the [Vendor] Content other than as expressly set forth herein. You will not sell, transfer, lease, modify, distribute or publicly perform the [Vendor] Content in any manner and you will not exploit it commercially. ”[2]

Some licenses do allow transfer of audio books onto multiple devices, and some may even provide for one person to transfer the MP3 to another; the permutations are only limited by the soft and hardware containing the copies, and the business plans of the publisher.

Which brings me back to the member’s question.  In the scenario presented, it is not quite clear if “transferable” (as used on the cover of a CD) means transferable between devices, or between owners; only by checking the actual licensing information on the product would you be able to determine that.  

It is rare for the owner of an audiobook to simply offer limitless transferability, but the fine print, not the cover, is where you’ll find out for sure.  And that is the dynamics (a good word for something as in flux and digital rights management)!

[1] Unless the recording is in the public domain, the conversion is for ADA accessibility purposes, if the use is a “Fair Use,” or some of the other very narrow exemptions apply.  But we’ll just focus on conventional, copyright-protected audiobooks that a publisher is selling for money.

[2] The mystery is killing you, right? This is an excerpt from the Audible license.