Legal issues arise in libraries. Which is why, over the past year and a half, our Letters of the Law column at americanlibraries.org has explored a wide range of legal topics, led by two 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 2022), and led forums at American Library Association (ALA) conferences in collaboration with the Public Library Association (PLA).
We’ve assembled some of their most topical entries, touching on copyright issues for remote learning, face-mask exceptions, and liability waivers, among other things.
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.
If a library has a policy requiring users to wear face masks, how do patrons who have a disability that directly conflicts with mask-wearing then use the library?
As library workers navigate the complicated process of reopening while providing a safe environment within the confines of the law, they would do well to read Theresa Chmara’s recommended guidelines, approved by ALA’s Intellectual Freedom Committee, for common questions and concerns. (Chmara is general counsel of the Freedom to Read Foundation.)
First, know that there are fake exemption cards circulating on social media, some bearing the seal of the US Department of Justice (DOJ), claiming the holder has a disability that prevents them from wearing a mask. The cards say that it’s illegal for any business to ask bearers to disclose their condition. These cards are not issued or endorsed by DOJ.
The Centers for Disease Control and Prevention states that a person who has trouble breathing or is unconscious, incapacitated, or otherwise unable to remove the face mask without assistance should not wear a face mask or cloth face covering. Other examples may include individuals with respiratory conditions such as asthma, chronic obstructive pulmonary disease, or cystic fibrosis. Additionally, people with autism, cerebral palsy, claustrophobia, post-traumatic stress disorder, or severe anxiety may have difficulty wearing a face mask.
The Americans with Disabilities Act (ADA) does not specifically address face masks, but the Atlanta-based Southeast ADA Center and Burton Blatt Institute at Syracuse (N.Y.) University offer a useful fact sheet on the topic. Under the ADA, a library must consider reasonable modifications—changing policies, practices, or procedures—for individuals with disabilities so they can participate in or benefit from library programs and services.
Reasonable modifications to mask requirements may include:
- allowing a person to wear a scarf, loose face covering, or full-face shield
- allowing curbside pickup or no-contact delivery in a timely manner
- offering phone or video appointments
There are three reasons a state or local government agency or private library may not have to provide a reasonable modification under the ADA:
- Fundamental alteration. A library may not have to provide a reasonable modification if the modification would change the nature of the service, program, activity, goods, services, or facilities. A fundamental alteration is a change to such a degree that the original program, service, or activity is no longer the same. An example would be a request for home delivery when the library does not already offer that service.
- Undue burden, such as a significant difficulty or expense. This could include a request to visit the library before or after its regular hours, as it would place an undue burden on limited staff.
- Direct threat, or a significant risk of substantial harm to the health or safety of the individual or other people that cannot be eliminated or reduced by reasonable accommodation of the individual. If an individual with a disability poses a direct threat despite reasonable accommodation, they are not protected by the ADA.
In order to limit a direct threat around COVID-19, state and local government agencies and businesses may:
- develop policies and procedures to promptly identify and isolate patrons with symptoms of COVID-19
- offer face masks to patrons (public libraries should include a free option)
- inform library users about symptoms of COVID-19
- limit in-person access to buildings as appropriate
For guidance on the decision-making process for reasonable accommodations, see discussion of two DOJ settlement agreements—one involving a YMCA, one involving the District of Columbia—from the Southeast ADA Center. For more on reasonable accommodation for employees, along with other pandemic-related employment issues, consult the Equal Employment Opportunity Commission’s guidance.—Mary Minow
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 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.—Tomas A. Lipinski
With everything going on in the world, why should I bother looking at provisions in old contracts the library has signed in the past?
A boilerplate clause in most types of library contracts known as force majeure (French for “superior force”) has suddenly become important amid the COVID-19 pandemic. Sometimes known as “acts of God” clauses, they refer to natural catastrophes and can allow one or both parties to get out of or change its obligations.
The clauses are not uniform, and whether they apply to the library or vendor and what they affect (payment, timing, nonperformance) depends entirely on their wording. I recommend looking at your library’s most important contracts now rather than later because invoking force majeure generally requires timely notice.
Sample force majeure clauses and checklists abound. Especially useful with respect to electronic licenses are the samples provided by the Liblicense project hosted by the Center for Research Libraries. Liblicense, a rich resource for libraries negotiating vendor contracts for many years, evaluates two sample force majeure clauses from a library’s point of view, primarily making the point that libraries should ensure that the clause applies equally to the library as well as the vendor.
A court in Illinois recently excused a restaurant from paying 75% of its rent because the governor had ordered the restaurant to shut down most of its operations. A typical force majeure clause says that it does not excuse an obligation to pay money, but this particular one did not carve out monetary obligations. Forbes reported that although probably only a minority of clauses may allow a party to reduce rent, this shows how important it is to closely read even boilerplate language.—M. M.
With classes now online, how can school districts create meaningful programming to support teaching and learning? What 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—and librarians when performing instructional functions—in accredited educational entities to stream works protected by copyright when doing so is “an integral part of a class session.” This section allows them 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. For example, 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.
The second provision is a companion provision that 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 as 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 relevant are the provisions of fair use. 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 instance. NXIVM Corp. v. Ross Institute (2004), Bill Graham Archives v. Dorling Kindersley Ltd. (2006), and SOFA Entertainment Inc. v. Dodger Productions Inc. (2013) are all excellent examples.—T. L.
