Tuesday, March 30, 2021

Open Textbook: Legal Issues in Libraries and Archives

The open textbook, Legal Issues in Libraries and Archives, is now available for use in library and information science programs and by others who are interested in the subject. The book is published using the Creative Commons Attribution 4.0 International License.

According to Ruth Dukelow, one of the co-authors, in her email to the JESSE listserve:

Fifteen expert authors and seven reviewers contributed to the initial thirteen chapters, and we are planning to add further chapters later this year. For the list of the authors and reviewers, see: https://mlpp.pressbooks.pub/librarylaw/front-matter/about-the-authors/

Textbook content is divided into three sections: Intellectual Property, Contracts & Licensing, and State & Federal Statutes. A fourth section, Patron Rights, will be added later this year.

The textbook introduces students to legal concepts through case law and commentary. Each chapter includes scenarios designed for class discussion or reading assignments. LIS faculty can use the textbook to teach an entire legal issues course, or they can assign individual chapters to address legal concepts in other courses. For example, the Copyright and Digitization chapter would be a helpful resource for courses on digitizing archival collections. The chapters on contracts and licensing electronic resources could be assigned in a course on collection development. Students taking public library management and finance courses would benefit from the chapters on FOIA, Open Meetings Acts, and Bonds & Millages.

The textbook has six (6) chapters on copyright and one (1) on licensing electronic resources.

I have not had a change to do more than skim this book.  However, I am already impressed with their work and the number of people who contributed to the effort. I know that having an open textbook will be helpful to many programs as they further introduce their students to the legal issues libraries face.

Friday, March 26, 2021

Fair Use Gone Viral: Predicting the Future of Copyright

Kenneth Crews

Copyright expert Kenneth D. Crews (Gipson Hoffman & Pancione) gave an ALA webinar on March 26 entitled "Fair Use Gone Viral: Predicting the Future of Copyright." Crews is the author of Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, Fourth Edition, which is available from ALA, Amazon, and other booksellers. My notes are below.

Update (03/292021): Archive access to Crews' webinar is available through WebEx.  The recording includes the chat log from the session, using the chat bubble on the left.

Why Copyright?

  • Legal rights of control of original works
  • Subject to exceptions & limitations

Practical Effect of Copyright: 

  • Grants rights to authors
  • Allows some use of the copyrights of others

A copyright interlude (this is normal)

  • Broad scope of works
  • Automatic copyright protection
  • Long duration
  • Broad scope of rights
  • Risks and penalties for infringement
  • Subject to limitations and exceptions

Why normal? This below is what we've been going through, so why does that normal above exist?

  • Lives disrupted
  • Work destabilized
  • Travel suspended
  • Family bonds strained
  • Human rights despair
  • Learning in (during) turmoil
  • Constitutional standards at risk
  • International relations frayed

 Where do we go next?

Any yet...?

  • Copyright in Congress:
    • CASE Act of 2020 - "Small Claims Court" - Our courts are part of Article 3 in the Constitution, but this Small Claims Court is outside of the legal system and resides in the Library of Congress.
    • Criminal penalties for video streaming - Really about large scale platforms.
    • Pre-1972 sound recordings - the law here has grown.
    • Music licensing - New set of licensing
    • Government works and the public domain - a new exception for copyright protection for faculty at the U.S. military academies.
    • Exceptions for Blind and visually impaired - new laws on this. The reason why Congress acted when it did on this is because of WIPO developed a treaty that is addressing this issue. That placed political pressure on its member countries.

Even in a world that seems upside-down, Congress continues to create new laws. 

Copyright and Online Education

  • The use issue: What governed specific uses?
    • Section 107: Fair Use
    • Section 110(2): Distance Education [Transmission in education]
    • Permission
    • Licenses: Institutional and Creative Commons
  • The ownership issue:  Who owns the finished work?
    • Creator of original work as copyright owner
    • Transfer of rights (e.g., to publishers)
    • Employers and "Work Made for Hire"

 We have things to figure out! 

Fair Use as an exception permits the uses of someone else's content under specific circumstances.

What is Fair Use?

  • Section 107 of the Copyright Act
  • Based on four factors:
    • Purpose 
    • Nature
    • Amount
    • Effect

Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2nd Cir. 2006) - related to a book about the Grateful Dead. It contains little miniature images of posters from the 1970s. DK publishing argued Fair Use and the Courts agreed. The Court worked through the four factors, including the third factor. Yes, it is the entire poster, but in a small scale. Maybe the whole thing in certain circumstances is fair use. Other courts have also ruled that the whole work can be allowed in certain circumstances.

Fair Use in Libraries

  • Google Books - 20 million books
  • HathiTrust - full books for search & disability access
  • Georgia State University - Electronic reserves for education

Far Use in Education

  • Classroom Guidelines (1976)
    • Negotiated amount by interested parties
    • narrow word count limits
    • no "anthologies"
    • no repeat use

Fair Use is supposed to flexible, which makes guidelines problematic. Guidelines are not law.

Fair Use and Education

  • Teaching "including multiple copies for classroom use"
  • Still subject to the four factors

Tresona Multimedia, LLC v. Burbank (CA) High School Vocal Music Association. 953 F.3rd 638 (9th Cir. 2020)

  • Sued not the school, but the music association.
  • Purpose: Nonprofit education & transformative
  • Nature: Creative work
  • Amount: Short clips; heart o the work
  • Effect of market: Transformative uses poses little harm

From the decision - "enhancing the educational experience of high school students."

Dr. Suess Enterprises v. ComicMix LLC, 983 F.3rd 443 (9th Cir. 2020)

Recreated the Dr. Suess books using Star Trek images.

Oh, the places you'll boldly go! (images)

  • Not Fair Use
  • Not a parody. Not transformative
  • Creative work.
  • Amount used is "substantial" and heat of the work
  • Non-transformative use that competes for some of the same market.

From the decision - "we conclude that Boldly did not make fair use of Go!."

Marano v. Metropolitan Museum of Art, 472 F.Supp.3d 76 (SDNY 2020)

The museum said they used the photograph to show how the musical instrument was used by the musician. The photographer say the photo as focusing on Eddie van Halen.

  • nonprofit and transformative
  • Creative work
  • entire work, but emphasis is on the historical context and museum artifact
  • Transformative use us unlikely to harm the market for the original photographs

New directions for Fair Use?

  • Return to the four factors
    • See the other side
  • Watch for the warning signs
    • Displacing purpose of the original
    • Competing for established markets
  • Develop a policy
    • Frequent or common uses
    • Different institutions will have different policies
    • Having a policy is good.  It keeps you current with developments. Demonstrates to the courts that you have thought about this.
  • Stay informed; stay flexible

Do we even need a (new)  normal?

  • A normal that is a slow transition.
  • A normal that is changing.
  • Fair Use
  • Section 108
  • Section 110
  • Public domain - this is richly valuable
  • Licensing & Creative Commons
  • New: Pre-1972 Sound Recordings - has new exceptions for non-commercial uses. It is a "nutty law" but has good stuff.
  • New: Small Claims

Question: Do courts focus more on Factors 1 and 4? Yes. The most important factor is where your evidence ways most heavily, and that is generally the first or fourth factor.  Do you have your facts right? 

Question: Copyright and online story time? A bunch of publishers at the start of the pandemic encouraged story time and use of their works.  Realistically the publishers were giving a license or permission.  Publishers will, at some point, want to withdraw their permission.  Could you apply Fair Use? Yes. Limited audience. Mission of the library. Make it a transformative use! Act our the story. Use only a portion of the book and not the whole thing. Encouraging people to purchase the book is okay.

Wednesday, March 10, 2021

The Struggle to Diversify Library Staff, part 5

Black woman with laptop sitting in front of a bookcase
Yesterday, the ALA group on Librarian Education Reform held its March meeting. This group has no formal standing in terms of changing library and information science education; instead it wants to spark conversations around what reforms could occur. The monthly meetings are a way to disseminate information and engage in conversations around specific topics. This month I was the speaker and talked about "The Struggle to Diversify Library Staff." At the bottom of this post are links to my four blog posts on this topic from fall 2020.

I am not going to try to summarize the entire session, but do want to pull out some thoughts on the systematic ways library organizations limit their diversity.

Before I get to that, if you have not seen the movie Hidden Figures, I encourage you to watch this short scene and what happens in the public library. We think of libraries as being welcoming places. We think that we can recruit diverse members of our community, who visit our libraries, to become librarians. But are they having positive experiences?

Okay...so how are we limiting diversity in our libraries?

  • The barriers to obtaining as MSLIS degree have already been documented, including the cost, the fact that it is a master's degree, the application requirements, etc.
  • Some of the barriers to obtaining an MSLIS are there because of various accrediting bodies and their impact on universities. Accrediting bodies have more impact on our colleges and universities than most people realize. [By the way, because of my work experiences, I understand accreditation and can both defend it and criticize it.]
  • In the hiring process, bias may be built in. Read "Types of Hiring Biases and How to Reduce Them."
  • Libraries may search for someone who has an MSLIS degree rather than someone who has the knowledge, skills, and abilities (KSA) to do the job. Focusing on the latter might allows libraries to hire candidates with more diverse backgrounds, including racial, cultural, thought, ability, and language.
  • People tend to hire people like themselves and promote people who are like themselves. The latter can eliminate diverse candidates from higher ranks in the organization.
  • Board of trustees for public and system libraries have various ways of bringing on new members. Depending on their charters, new members may be appointed by the local government, voted on by the community, or just be volunteers who are interested in the library. All of these ways can limit diversity on a library board of trustees, yet that board should reflect its community.
  • State laws set rules for who can be a director of a public library.  In New York State, for example, whether the library director is required to have an MSLIS degree is determined by the population of the community. While people from diverse backgrounds, who do not have an MSLIS, apply for positions in smaller communities? Does the need for an MSLIS - and likely years of experience - limit the diversity of applicants for director positions in larger communities?
  • If the public library is governed by civil service, those rules may specify what knowledge, skills, and abilities are needed for specific ranks (e.g., Librarian I or Librarian II). That can limit diversity, especially if the MSLIS degree is required.

Those are the things that emerged during yesterday's conversation and I'm sure there are more. I approached the conversation without using the phrase "structural racism", but clearly our structures are having a negative impact on diversity. For example, I doubt that municipalities think of how they create their boards of trustees as being a part of structural racism, yet the structure does limit who will become a trustee. 

If you have thoughts about this, I hope you'll leave a comment on this post. If you are interested in joining the conversation on librarian education reform, join the Facebook group. If you are interested and also a member of ALA, you can join the ALA Connect group for this.

Previous Blog Posts

Addendum (3/10/2021, 2:40 p.m.): Thanks to ALA for highlighting this article in its Library Worklife newsletter. The article is "Is Hiring For Culture Fit Perpetuating Bias?" from Forbes.

Addendum (03/15/2021): The T is for Training podcast focused on this topic last week. Thanks to my T colleagues for discussing this with me!  Here are links to the 63-minute podcast and show notes. The podcast is also available on iTunes and on other podcast delivery services.

Thursday, March 04, 2021

March - July 2021: Jill's Presentation Schedule

Jill Hurst-Wahl

The photo to the right is of me presenting at an event several years ago. For the last year, everything I've been involved in has been done virtually. The upcoming events on my calendar will also be virtual and synchronous. Perhaps I'll see you at one of these?

March 9, 1:00-2:00 p.m. ET - Librarian Education Reform March Meeting: The Struggle to Diversify Library Staff. This month I am the speaker/facilitator, and will be engaging the group in a discussion focused on "The Struggle to Diversify Library Staff." This discussion will use my blog posts from last year on this subject. Check this post for more information on this event.

March 12, 4:00-5:00 p.m. ET - Virtual author event for Change the World Using Social Media. Changing the World Using Social Media was written by Paul Signorelli and published 2020. Maurice Coleman and I contributed to the book, and will be speaking about the book's content - along with Paul - during this free San Francisco Public Library event. Registration is available through the Library’s website.

March 16, 1:00-2:00 p.m. ET -  CNI Spring Virtual Meeting session on Controlled Digital Lending for Libraries and Consortia with Charlie Barlow, Kyle Courtney, Chris Freeland, and Jennie Rose Halpern. Description:

Internet Archive seeks to convene a panel with Library Futures to discuss Controlled Digital Lending (CDL) in libraries and library consortia. Bringing together two organizations committed to digital access and equity and a library consortium, the panelists will discuss how libraries can use technology to assert their right to acquire and lend their own materials while respecting copyright. The panel will focus on how both practitioners and advocacy organizations are using CDL and building a community of practice that includes policy, education, and technical implementation of digital lending in libraries.

March 18 - Mentoring: Benefitting You, Benefitting Others as part of the New York Library Association (NYLA) Developing Leaders Program. This session is for DLP participants only.

March 24, 10:00-11:30 a.m. ET - Webinar: Tips and Tricks – Giving a Presentation and Engaging Your Audience for the Central NY Library Resources Council (CLRC) and the Empire State Library Network (ESLN). Description:

Have you been asked to give a presentation and do not know how to prepare for it? Have you given a presentation and are unsatisfied with how it went? Are you interested in ideas on how to engage the audience? If yes, then this webinar is for you! Come and learn how to think about your online and face-to-face presentations and training sessions. You will leave with new skills, including a few easy tips and tricks, in effective presentation design and powerful workshop delivery. 

This is a topic I have spoken on many times over the years, and I'm pleased to do it again!  

May 13, 2:30-4:00 p.m. ET - Understanding Fair Use During an Emergency, like a Pandemic for the American Library Association (ALA). {Updated 03/31} Registration is open. Description:

No one would have predicted that when the pandemic struck copyright would become a hot topic. However, when libraries and school closed their physical doors in spring 2020 and moved online, questions emerged about the use of materials in the online environment. For example, could a book be read in an online storytime? Confusing the matter were publishers who “gave” permission, while those knowledgeable in copyright said that permission was not needed.

This webinar will use four common scenarios to discuss the application of Fair Use during a pandemic and other emergencies, as well as in normal times. Each scenario will focus on a common library activity. Basic copyright information with be provided, so that everyone enters the scenarios with similar knowledge. There will be time for participant questions throughout.

July 9, 9:45-10:45 a.m. ET - Keynote for the 2021 Virtual Library of Virginia (VIVA) ILL Community Forum. I'll be giving a talk focused on copyright and interlibrary loan. More details to come after a meeting with the planning committee, since there is much I could cover!

Remember that I can collaborate with you to tailor any of my highly-interactive presentations to meet your needs. For more information or to discuss an idea, please contact me at hurst@hurstassociates.com.

Tuesday, March 02, 2021

Librarian Education Reform March Meeting: The Struggle to Diversify Library Staff

Promotion image for March 9 event
Last year, a group came together in the American Library Association to discuss the how librarian education might be reformed.  The group formed without a preconceived notion of what library education needs to entail and what reform might mean. Rather the group has openned space for wide ranging discussions through the ALA Connect platform (ALA members only), Facebook, and monthly Zoom meetings. The Facebook group and Zoom meetings are open to anyone who is interested in the topic.

This month's meeting is on March 9, 1:00-2:00 p.m. ET through Zoom. Registration is open to all. This month I am the speaker/facilitator. and will be engaging the group in a discussion focus on "The Struggle to Diversify Library Staff." This discussion will use my blog posts from last year on this subject:

This is an important topic, as you know, because the diversity of our library staff does not match the diversity of the communities they serve. Think of diversity in terms of ethnicity, gender, languages, etc.  How do we attract a broader range of people to work in our libraries?  How do we make it a safe space for them?

I bet you have an opinion on this, so I hope you'll join the conversation!

Monday, March 01, 2021

Article - Checking Rights: An IR Manager’s Guide to Checking Copyright

I came across this 2019 article and think some might be interested in it.  


Baker, S., & Kunda, S. (2019). Checking Rights: An IR Manager’s Guide to Checking Copyright. Journal of Copyright in Education & Librarianship, 3(3), 1-29. https://doi.org/10.17161/jcel.v3i3.8248


Institutional repository (IR) managers often find themselves providing copyright guidance to faculty who wish to self-archive their published scholarship or to students depositing theses and dissertations. As IR managers may not be copyright experts themselves, making determinations and checking rights can be difficult and time-consuming. This article is intended as a practical guide to describe common types of material that can be placed in an IR as well as potential copyright issues and other considerations for each type. Material types covered include book chapters, journal articles, conference proceedings, student papers, electronic theses and dissertations, research data sets, historical and archival materials, and oral histories. Underlying issues such as copyright ownership, work made for hire, and the legal definition of publication are also discussed. For easier reference, the appendix contains a chart with brief descriptions of issues and resources.