digital reference: legal issues instructor: mary minow, j.d., a.m.l.s. librarylaw.com...
TRANSCRIPT
Digital Reference: Legal Issues
Instructor:Mary Minow, J.D., A.M.L.S.
Infopeople Webcast Series: Third Thursday
Thursday, June 16, 2005
12:00 noon to 1:00 p.m
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• Today’s webcast:– presentation: 50 minutes– Q&A: final 10 minutes
• Submit your questions via ‘Chat’ during webcast so presenter gets them in time
• Fill out evaluation during Q&A
Don’t wait for Q&A to submit questions
Webcast Archives: http://infopeople.org/training/webcasts/archived.php
Technical Housekeeping
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When to Use Chat
Chat Area ThereList of Participants There
• Get help with technical difficulties •send message to “HorizonHelp”
• Ask presenter questions•send message to “ALL”
• Chat with other participants•“select name from dropdown list”
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What is Digital Reference?
• Email reference • Chat• Pushing web pages• Scanning articles• Sending licensed
database articles
Note: “Virtual Reference” is often used to signify real-time transactions
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Digital Reference Is …
• Email reference • Chat• Pushing web pages• Scanning articles• Sending licensed
database articles
Transcript Terror - Nancy O’Neill
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Digital Reference: Legal Issues
• What can I send?– Scanning articles from print– Sending links– Pushing and pasting articles from
databases
• Privacy
• What can I do with the transcripts?
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What can I send? Pushing pages, copyright and licensing
• Scanning articles from print
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What can I send? Pushing pages, copyright and licensing
• Scanning articles from print• Local and cooperative reference• Analyze under Copyright Framework
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Scanning - checklibrary copyright flowchart
Public Domain
Fair Use
Get Permission
Sec. 108Libraries
Evaluate item by item when copying for user
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Public Domain Make Unlimited Copies
Public Domain
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Examples – okay to scan …
Public Domain
Examples:– phone books– directories that have no original
selection, arrangement– public laws, cases– published in U.S. pre-1923
See American Library Association copyright webcast infopeople.org/training/webcasts/03-03-05/
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Okay to send links…
Public Domain
Links are addresses – factual
No copyright concern unless
- you copy an entire list (list itself may have a thin copyright in its creative selection, arrangement)
- additional restriction e.g. by contract
Links e.g.
www.loc.govwww.librarylaw.comwww.infopeople.org
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Sec. 108 Library exception
Public Domain
Fair Use
Get Permission
Sec. 108Libraries
Requirements to be a Section 108 library:
(1) no copies for commercial advantage
(2) open to public or specialized researchers
17 U.S.C. Sect. 108(a)
Sec. 108ILL
I am a 108LIBRARY
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• No copies for commercial advantage
and
• Include notice of copyright on copies
17 U.S.C. Sec. 108 (a)
I am aLIBRARY
Sec. 108Libraries
108
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“Notice” on Copies
Must copy original notice
Copyright © 1999 by Andrew Alpern. All rights reserved under Pan American and International Copyright Conventions.
Copyright © 2005 by the American Library Association. All rights reserved except those which may be granted by Sections 107 and 108 of the Copyright Revision Act of 1976.
If none, must includelegend stating that
“the work may be protected by copyright”
17 U.S.C. Sect. 108(a)(3)
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Copies library makes for patrons
37 C.F.R. 201.14
18 point typeProminent displayDurable paper
in handouts
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Sec. 108 Library exception
17 U.S.C. § 108(d)
Libraries may copy one article from a periodical if
(1) becomes property of user for study or research
(2) copyright warning displayed
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Copying articlesand small excerpts okay if …
17 U.S.C. Sect. 108(d)
• Library may copy for user’s private study or for ILL
• Photocopies or scans
• Becomes user’s property
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… and if “isolated and unrelated”
17 U.S.C. § 108(g); National Commission on New Technological Uses of Copyright Works (CONTU) www.cni.org/docs/infopols/CONTU.html
Guidance from interlibrary loan?Library may request 5 copies of articles from most recent 5 yrs of single journal title during calendar year
CONTU Rule of 5 Guidelines
Guidance from interlibrary loan?Library may request 5 copies of articles from most recent 5 yrs of single journal title during calendar year
CONTU Rule of 5 Guidelines
No systematic reproduction of multiple copies of the same material
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Copying entire works and substantial parts is okay if …
reasonable investigationshows library cannotbuy copy at a fair price
e.g. out of print
17 U.S.C. Sect. 108(e)
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Sheet Music
Graphic
Audiovisual Works
May NOT copy for users
17 U.S.C. Section 108(i)
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DOES NOT APPLY TO
Musical, Graphic,
AV Works
17 U.S.C. Section 108(i)
.. But OK to copy
Graphics that are part of a book (print)
Audiovisual news programs
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When can I scan pages from a book or magazine?
Fair Use
Likely Yes Likely No
PurposeNonprofit + Commercial
NatureReference,nonfiction
Published +
Fiction, ArtMusic
Unpublished
AmountSmall amt + Complete work
Heart of work
MarketDoesn’t hurtmarket of
original +
Hurts market orpotential marketof original
See alsoFair Use ChecklistIndiana Univ, Copyright Management Centercopyright.iupui.edu/checklist.htm
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If all fails, need permission
Public Domain
Fair Use
Get Permission
Sec. 108Libraries
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Licensed databases … permission?
Public Domain
Fair Use
Get Permission
Sec. 108Libraries
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What can I send? Pushing and pasting from licensed databases
Is user member of your library? e.g. email reference
Check license agreement to see if user is authorized(probably needs library card and PIN)
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Problem: license restrictions generally trump copyright law
What if I find information in a database that meets
public domain/libraryexception/fairuse?
Public Domain
Sec. 108
libraryFair Use
17 U.S.C. § 108 (f)(4)
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Generally no.
License restrictions trump copyright law
Can I send information from database that is
public domain/libraryexception/fairuse?
Public Domain
Sec. 108
libraryFair Use
17 U.S.C. § 108 (f)(4)
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Public domain, library exception, fair use can disappear…
Need to negotiate license terms carefully
Licenses freely entered into
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License silent on digitalreference?
Look at authorized users definition
Digital Reference and Database Licenses
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Digital Reference and Database Licenses
License silent on digitalreference?
Defaults to Copyright Law
Public Domain Fair Use
Sec. 108
library
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When can I send pages from a licensed database?
Lead patron to her library’s database. Have patron use her card.
Second choice: use “donated barcode” listed in 24/7 Collaborative Policy Manual.
Third choice: Use databases licensed to AskNow
i.e. LAPL FirstSource Databases
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Licensing Resources
• What’s New in Database Licensing? Infopeople webcast – Dec. 16, 2004 with Sybil Boutilier- includes library friendly provisions infopeople.org/training/webcasts/12-16-04_licensing.html
• Liblicense at Yalemodel license, vocabularywww.library.yale.edu/~llicense/index.shtml
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Privacy
• Far larger issue than ground reference• Patrons leaving spores all over the net• Littering their identities• AskNow offers anonymity as a choice • Promote it as option
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Personally Identifying Information (PII)
• Status: 24/7 and QuestionPoint are merging privacy policies
• Both commit to confidentiality of PII• But must disclose when required by law
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Personally Identifying Information (PII)
• But must disclose when required by law
• QuestionPoint deletes PII after 90 days
earlier on request Poof!
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Personally Identifying Information (PII)
• But must disclose when required by law
• QuestionPoint deletes
PII after 90 days
Poof!
Reality – hard to delete digital PII / easier not to collect
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Time to revisit library privacy policy?
See Infopeople webcast on Privacy, Libraries and the Lawinfopeople.org/training/webcasts/10-21-04_privacy.html
Library policy may bestronger than state law
… protect all user records
But check with library counsel
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What are lawful orders to disclose virtual reference records?
California Govt Code Sect. 6267
Registration and circulation records may not be disclosed unless
*Administration of library*Consent by patron (written)*Court order
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Subpoenas usually are NOT Court OrdersSearch warrants ARE Court Orders
Issued by courtJUDGE determined
Your response: Comply immediately
Administrative, Civil, Criminal (e.g. 5 days to respond)
… generally NOT issued by a court. Your response: I’ll check with my attorney
“Must Respond!”
SearchWarrant
Subpoena
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PATRIOT ACT Sect. 215 Orders
See Library Privacy Audits and Search Warrants: Preparing for Inquiries into User Records, Infopeople webcast Nov. 4, 2004
www.infopeople.org/training/webcasts/11-04-04_privacy.html
“Must Respond!”
Reminder: Call ALA Office for Intellectual FreedomSay simply “May I speak to a lawyer”800-545-2433, ext. 4224
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Digital Reference creates more records
But CAN offer greater anonymity
. www.library.cmu.edu/People/neuhaus/software.html
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www.asknow.org/mix/privacy.cfmSee also www.247ref.org/portal/247priv.htm
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Your library’s privacy policy
Should not conflict with collaborative policies e.g. AskNow
Post prominently – add a link to your library’s privacy policy to your web page offering digital reference
Library Privacy Policy http://247ref.org/
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Further Resources
Paul Neuhaus, Carnegie Mellon University
Digital Reference and Privacywww.library.cmu.edu/People/neuhaus/privacy.html
Links to sample privacy policies, virtual reference software privacy features and more
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What can I do with the transcripts?
• Privacy - don’t do anything you promised not to. Best practice: get permission.
• Copyright – joint authors… means both parties have ownership in a transcript, and need not get permission to use. Must share profits.
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Summary: Digital Reference Legal Issues
• What can I send?– Scanning articles from print– Sending links– Pushing and pasting articles from
databases
• Privacy
• What can I do with the transcripts?