Digital Reference: Legal Issues Instructor: Mary Minow, J.D., A.M.L.S. LibraryLaw.com Infopeople Webcast Series: Third Thursday Thursday, June 16, :00 noon to 1:00 p.m

. 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: Technical Housekeeping

. When to Use Chat Chat Area There List 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”

. What is Digital Reference? reference Chat Pushing web pages Scanning articles Sending licensed database articles Note: “Virtual Reference” is often used to signify real-time transactions

. Digital Reference Is … reference Chat Pushing web pages Scanning articles Sending licensed database articles Transcript Terror - Nancy O’Neill

. 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?

. What can I send? Pushing pages, copyright and licensing Scanning articles from print

. What can I send? Pushing pages, copyright and licensing Scanning articles from print Local and cooperative reference Analyze under Copyright Framework

. Scanning - check library copyright flowchart Public Domain Fair Use Get Permission Sec. 108 Libraries Evaluate item by item when copying for user

. Public Domain Make Unlimited Copies Public Domain

. 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/ /

. 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

. Sec. 108 Library exception Public Domain Fair Use Get Permission Sec. 108 Libraries 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. 108 ILL I am a 108 LIBRARY

. No copies for commercial advantage and Include notice of copyright on copies 17 U.S.C. Sec. 108 (a) I am a LIBRARY Sec. 108 Libraries 108

. “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 If none, must include legend stating that “the work may be protected by copyright” 17 U.S.C. Sect. 108(a)(3)

. Copies library makes for patrons 37 C.F.R point type Prominent display Durable paper in handouts

. 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

. Copying articles and 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

. … and if “isolated and unrelated” 17 U.S.C. § 108(g); National Commission on New Technological Uses of Copyright Works (CONTU) 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

. Copying entire works and substantial parts is okay if … reasonable investigation shows library cannot buy copy at a fair price e.g. out of print 17 U.S.C. Sect. 108(e)

. Sheet Music Graphic Audiovisual Works May NOT copy for users 17 U.S.C. Section 108(i)

. 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

. When can I scan pages from a book or magazine? Fair Use See also Fair Use Checklist Indiana Univ, Copyright Management Center copyright.iupui.e du/checklist.htm

. If all fails, need permission Public Domain Fair Use Get Permission Sec. 108 Libraries

. Licensed databases … permission? Public Domain Fair Use Get Permission Sec. 108 Libraries

. What can I send? Pushing and pasting from licensed databases Is user member of your library? e.g. reference Check license agreement to see if user is authorized (probably needs library card and PIN)

. 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 library Fair Use 17 U.S.C. § 108 (f)(4)

. Generally no. License restrictions trump copyright law Can I send information from database that is public domain/libraryexception/fairuse? Public Domain Sec. 108 library Fair Use 17 U.S.C. § 108 (f)(4)

. Public domain, library exception, fair use can disappear… Need to negotiate license terms carefully Licenses freely entered into

. License silent on digital reference? Look at authorized users definition Digital Reference and Database Licenses

. License silent on digital reference? Defaults to Copyright Law Public Domain Fair Use Sec. 108 library

. 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

. Licensing Resources What’s New in Database Licensing? Infopeople webcast –Dec. 16, 2004 with Sybil Boutilier -includes library friendly provisions infopeople.org/training/webcasts/ _licensing.html Liblicense at Yale model license, vocabulary

. 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

. 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

. Personally Identifying Information (PII) But must disclose when required by law QuestionPoint deletes PII after 90 days earlier on request Poof!

. 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

. Time to revisit library privacy policy? See Infopeople webcast on Privacy, Libraries and the Law infopeople.org/training/webcasts/ _privacy.html Library policy may be stronger than state law … protect all user records But check with library counsel

. What are lawful orders to disclose virtual reference records? California Govt Code Sect Registration and circulation records may not be disclosed unless *Administration of library *Consent by patron (written) *Court order

. Subpoenas usually are NOT Court Orders Search warrants ARE Court Orders Issued by court JUDGE 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!” Search Warrant Subpoena

. PATRIOT ACT Sect. 215 Orders See Library Privacy Audits and Search Warrants: Preparing for Inquiries into User Records, Infopeople webcast Nov. 4, “Must Respond!” Reminder: Call ALA Office for Intellectual Freedom Say simply “May I speak to a lawyer” , ext. 4224

. Digital Reference creates more records But CAN offer greater anonymity

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. See also

. 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

. Further Resources Paul Neuhaus, Carnegie Mellon University Digital Reference and Privacy Links to sample privacy policies, virtual reference software privacy features and more

. 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.

. 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?