Our online column Letters of the Law explores a wide range of legal issues that arise in libraries, with the help of a pair of leading authorities: Mary Minow, a librarian who became a lawyer; and Tomas A. Lipinski, a lawyer who became a librarian. Together they have authored four books on the subject, including The Library’s Legal Answer Book (ALA Editions, 2003, with a new edition forthcoming in 2021), and led forums at American Library Association (ALA) conferences in collaboration with the Public Library Association (PLA).
In this column, Lipinski explores copyright for remote learning, exemptions to protected media for education, and exculpatory agreements—which were in the news during election season, when participants at certain rallies waived their right to hold the host liable for any harm or illness contracted.
Look for a new column by Minow in the new year. Send questions or ideas to Associate Editor Sallyann Price at email@example.com.
As our school district has moved all classes online, we’re working to create meaningful programming to support teaching and learning. What should we know about copyright?
Three provisions in copyright law can help teachers, students, and school librarians construct learning objects (such as lessons or modules) and deliver instruction.
The first allows teachers and students in accredited educational entities to stream works protected by copyright, when doing so is “an integral part of a class session.” This section allows teachers (and librarians when performing instructional functions) and students to perform a nondramatic literary or musical work, such as reading a portion of an article; perform reasonable and limited portions of any other work, such as a movie; or display or transmit a work in an amount comparable to that which is typically displayed in a live classroom session. In other words, if you were to discuss a chart and a table from a textbook in class, you may display those items online as well.
Some things to keep in mind:
- The work used must be lawfully made under the copyright law, constitute an integral part of the class session, and be offered as a regular part of instructional activities—in other words, represent part of the class itself, rather than something ancillary to it.
- The performance or display must be directly related and of material assistance to the teaching content, not for students’ entertainment or unrelated background.
- Participants should be limited to students of the institution who are officially enrolled in the course via password protection.
- The work may not be recorded for use outside class instruction.
The educational entity must also institute policies regarding copyright; provide informational materials to faculty, students, and relevant staff members that accurately describe and promote compliance with laws relating to copyright; and alert students that materials used in connection with the course may be subject to copyright protection.
A companion provision is used to prepare works so that a display or a performance can be made. This section allows the educational entity to reproduce a work in order to make an authorized performance or display. If the work is in analog form, such an article in a print magazine, the law allows for the digitization of the work—but only for that portion of the work allowed in the sanctioned performance or display. The work must be either unavailable in digital form or only available in digital form in a way that prevents reproduction.
Also available is fair use, which I covered here in a past column. There are many scenarios, unrelated to the current pandemic, wherein fair use can support the use of images, photos, sound, and video clips when used for a specific purpose: to make an example, illustrate a point, or serve as a historical anchor, for example. NXIVM Corp. v. Ross Institute (2004), Billy Graham Archives v. Dorling Kindsersley Ltd. (2006); and Sofa Entertainment, Inc. v. Dodger Productions, Inc. (2013) are all excellent examples.
I would like to use several movie clips in a youth literacy program. The source DVDs of the clips are protected by Content Scramble System (CSS) technology—may I circumvent the protection measures to create high-quality resolution clips?
It sounds like you’re already aware that circumventing an access control is prohibited. However, Congress has made a provision for a three-year cycle of rules to determine whether there are users of a copyrighted work who are adversely affected by such prohibitions. The most recent rules, promulgated in 2018, will be revisited in 2021. Fortunately, in 2018, one of the provisions included in the rule-making (conducted by the US Copyright Office and recommended to the Librarian of Congress, the final authority for the rule-making process) addressed the precise use you’re asking about.
Exemptions allow for the circumvention of lawfully made and acquired content on a DVD protected by CSS, on a Blu-ray disc protected by the Advanced Access Content System, or via a digital transmission protected by other technological measures. Exemptions cover educators and participants in nonprofit digital and media literacy programs—such as those offered by libraries, museums, and other nonprofit entities with an educational mission—in the course of instructional activities and for the purpose of criticism or comment.
Under this exemption, even librarians in public library settings may circumvent access controls for digital and media literacy programs as part of their educational mission. But this rule doesn’t bode well for pandemic-era programming, as those programs must take place in person.
In issuing the final 2018 rule regarding the exemption for “libraries, museums, and other nonprofit entities with an educational mission,” the Librarian of Congress observed that “[m]ultiple organizations petitioned to renew the subpart of the exemption covering use of motion picture clips for educational uses in digital and literacy programs offered by libraries, museums, and other nonprofits …. For example, LCA [Library Copyright Alliance] stated that librarians across the country have relied on the current exemption and will continue to do so for their digital and literacy programs.”
Carrie Russell, director of ALA’s Public Policy and Advocacy Office in Washington, D.C., and staff liaison to CLEAN (the Copyright Library Education Advisory Network), is always looking for instances of the statutory prohibition on circumvention thwarting library use. She works with the Library Copyright Alliance to include examples in its request for exceptions and testimony during the rule-making process. Contact her at firstname.lastname@example.org if you have a story to share.
I’ve heard in the news about liability waivers; can they apply in a library setting? Could a patron who gets sick sue the library?
An exculpatory agreement, sometimes known as a liability release or injury waiver, is an agreement that a business or other entity can use when there is risk of harm to a person for an activity or event that the entity offers or sponsors. In signing the document, a participant agrees to release the sponsor from any fault or liability for injuries resulting from ordinary negligence. Libraries that employ liability waivers usually require them for patrons who use makerspaces and crafting centers, since those activities are directly sponsored by the library and carry a high risk of injury.
Recently these agreements have been invoked in the context of large political gatherings where participants chose not to wear masks or facial coverings and signed away their right to sue in the event of contracting COVID-19. The effectiveness of such agreements is an open question, as no court has yet ruled on their enforceability, and some states do not permit their use at all.
Can a government entity like a public library use such an agreement? That complex legal question depends on an analysis of a state or locality’s treatment of government sovereign immunity, public policy, and tort law. That kind of analysis should be undertaken only in consultation with legal counsel who are familiar with these issues.
Some schools and libraries ask if a minor can sign an exculpatory agreement, or if a parent can sign a waiver on behalf of a minor child. In general, if a minor patron enters a contract such as an exculpatory agreement, it may be voidable, and in many states, parents cannot sign on behalf of a minor child. However, as has been noted, many states recognize an exception to this rule in the context of nonprofit activities sponsored by, for example, schools, volunteers, or community organizations. It would appear logical to conclude that the voluntary use of a library makerspace or other services would fall under this same rule, and that the parental signature executing the waiver on behalf of a minor child would be valid.
The information in this column does not constitute legal advice, nor does it necessarily reflect the views of ALA or PLA. It is meant to serve as a starting point for librarians and library lawyers who wish to research the law and consider its applications. Different jurisdictions will have different laws and may even apply the same laws differently. If you require legal advice or expert assistance, we urge you to seek the services of a competent legal professional.