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 two topics that have made headlines this year: privacy concerns around the 2020 US Census and copyright issues surrounding traditional and online programming.
Look for a new column by Minow later this summer. Send questions or ideas to Associate Editor Sallyann Price at sprice@ala.org.
Are there restrictions on how the government can use information gathered during the 2020 Census? What should we tell patrons about their census privacy concerns?
The US Census questionnaire asks the same set of questions of everyone living in a given household. Census records are generally released 72 years after each decennial count by the National Archives (so the 1950 Census records will be released in April 2022).
The use of census data is governed by strict federal regulations, and disclosure of an individual’s information “will be released only in accordance with these rules.” When released, information is “provided only to the individual to whom the record pertains.” You can, though, provide written consent to the release of your information to another person using the required form. You must be 18 years of age or older to obtain your own information; with proper documentation, a parent or legal guardian can obtain the information of their minor charges. There is also a process by which you, or the executor of the estate, can obtain information about a qualifying deceased relative. “In no case shall information furnished under the authority of this section be used to the detriment of the persons to whom such information relates” (15 Code of Federal Regulations § 80).
Census employees are sworn to confidentiality. Anyone who “publishes or communicates any information” is subject to severe penalty (13 United States Code § 214).
Census aside, this is also a good time to remind your patrons that any personal information collected by the library is protected by state law, though protections vary from state to state. Some protect a wide range of library patron information, others more limited registration and circulation information. Look up your state’s laws around library patron records on ALA’s website. Some states, such as California and New Jersey, have enacted or are considering enacting laws to protect all reader privacy information generated in online or digital settings.
Given the varied landscape around library patron information laws, you might also remind patrons that activity on their social media pages, for example, even if done on library computers, is not protected by state library privacy statutes but governed by the privacy policy of the social media platform. And while ebook circulation data is protected by state library statutes, patrons’ reading behavior on their own devices is likely subject to third-party privacy policies and remains, for the most part, unprotected.
What are the copyright concerns when it comes to singing or playing music, on a piano or guitar, during storytimes or other programming?
Making a public performance of a musical work—by playing it yourself or playing a recording of it—is allowed under Section 110(4) of the US Copyright Act, so long as the work performed is a nondramatic literary or musical work, which the US Copyright Office defines as a wide range of “fiction, nonfiction, poetry, textbooks, reference works, directories, catalogs, advertising copy, compilations of information, and computer programs.” (Consider the score from Les Misérables off the table.) This is the same provision that allows you to read a book during storytime, as that is a public performance of a nondramatic literary work. Note that there is no performance right in a sound recording unless it is by means of a “digital audio transmission,” such as a livestream.
Copyright analysis can best be approached by asking three questions: What is the nature of the works involved? What rights of the copyright holder are implicated by my particular use? And what rights do I have as a user?
A musical work is protected by copyright, assuming it’s not too old—consult Cornell’s guide. Let’s say the song in question is from the movie Frozen. It is new enough to still be protected by copyright. Older works, such as the iconic Americana songs of Stephen Foster, are no longer protected by copyright. The right to make a public performance of the musical work is one of five of the exclusive rights of the copyright owner; the right to have a public performance of a sound recording (like a CD) is another.
Librarians who regularly engage in this sort of conduct are unlikely to run into copyright issues, as the main area of concern would be the digital audio transmission of the performance. Play all the music you want in the library, but be careful not to stream or broadcast these performances (keep reading for advice on when fair use might apply). And no one can get paid for or profit from the performance, unless the payment is a salary for a set of duties encompassing the performance—such as a children’s librarian whose regular duties involve storytime sessions and crafting programs.
Do these provisions still apply amid the COVID-19 pandemic, with library buildings closed and a broad shift to remote programming? Are there other provisions that allow for this?
Once a nondramatic musical or literary work is streamed, webcast, or otherwise transmitted, its use falls outside the provision of Section 110(4) described above. In addition, playing recorded music or other sound implicates the exclusive right of the copyright holder under Section 106, as it is “by means of a digital audio transmission.”
Does this rule out all online programming that incorporates use of literary and musical works or sound recordings? Not necessarily. Some publishers allow for the performance of literary works, such as reading and displaying the illustrations from a picture book as part of an online storytime. Seeking permission directly from the copyright holder or publisher is also an option.
In the context of the current public health crisis, though, there is an argument to be made for fair use to cover the performance of a nondramatic musical or literary work during an online storytime, or perhaps even the use of a sound recording as background music during other programs. While there is no court case to address this scenario, the argument would look something like this:
The question of what is or isn’t fair use of a published work comes down to context, and “requires a fact-intensive and context-specific evaluation to determine whether the copyright law’s goal of promoting the progress of science and useful arts would be better served by allowing the use than by preventing it” (Cariou v. Prince, 2013, quoting Castle Rock Entertainment v. Carol Publishing Group Inc., 1997). The Digital Media Law Project offers a useful introduction to the four factors that drive fair use analysis, and the US Supreme Court case Sony Corporation of America v. Universal City Studios Inc. (1984) makes for interesting reading on the subject.
One of the factors has to do with “how much” of the work is used and, increasingly, whether the user takes only “as much” as necessary to accomplish a good purpose. Digitization of entire books was allowed in Authors Guild Inc. v. HathiTrust (2014), as the full text of the work was needed in order to accommodate readers with print disabilities. It could be argued that, in light of public library closures, an entire work is likewise needed for storytime programs. Can you imagine a storytime where the last few pages of the book are off-limits?
Given the singular nature of the COVID-19 pandemic, it could also be argued that allowing use of published works will not harm the market for them. If anything, storytime has the potential to generate interest in a particular title and contribute to demand for such works, especially when libraries are unable to circulate works or offer in-person programming. This argument has not been tested in court, but other library copyright experts agree—read about it in Programming Librarian.
A current case involves publishers suing the Internet Archive over its Open Library pandemic response, which had provided unfettered access to more than 1 million free ebooks before it shuttered just last week, accused of “willful mass copyright infringement.” Whether or not the Internet Archive is considered a library is a point of contention in the suit. Read about the case here.
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.
