LibraryLaw Blog

Child and Family Safety in the Library - workshop at Santa Barbara Public Library Wed June 24

Black Gold Cooperative Library System is sponsoring a workshop on Child and Family Safety, next Wednesday from 10 to 4 pm at the Santa Barbara Public Library (Faulkner Gallery). FamilySafetyFlyer

We'll be talking about how to handle difficult situations, when to report suspected child abuse, when to call the police and what to say.

Instructors:

Mary Minow, LibraryLaw.com

Ann McCarty, Associate Director North County Rape Crisis & Child Protection Center

Deborah Holmes, LCSW, Associate Director, CALM (Child Abuse Listening & Mediation)

Officer Scott Klacking, Beat Coordinator/Background Investigator, Santa Barbara Police Department

Finding legally safe music and videos for presentations, blogs and podcasts

For California library folks - join us live at the Infopeople webinar Wednesday
Jun 17, 2009  12pm-1pm PDT Finding (Legally Safe) Music and Videos for Presentations, Blogs and Podcasts

Anyone else is welcome to view it later as an archived event.

Your library has been creating content for websites and blogs for years, and now it�s moving into adding sounds, songs and video. You know just what type of clip you want, but have an uneasy feeling about its copyright status. Do you have a right to use it? Is there podsafe content you can use?

This webinar will help you analyze the legal rights attached to sounds, songs and video you find online and offline. It will walk you through safer approaches to using audiovisual content you want to use to make your podcasts sing!

At the end of the presentation, participants will be able to:

• Understand the concept of podsafe music and sounds
• Identify at least three good sources
• Be familiar with best practices in evaluating Fair Use when using video and audio
• Know what to ask for when requesting permission from copyright owners

This webinar will also be of use to reference staff who field questions from the public about copyright issues.

UPDATE: Deaccessioning in New York State

The good news: I assume in reaction to the concern expressed by museums, zoos, and libraries, the bill governing deaccessioning from museums was pulled from the Ways and Means committee's calendar on Tuesday.  I gather that staff from Assemblyman Brodsky's and Senator Serrano's offices have begun discussions with some concerned community representatives.

The bad news: An amended version of the bill is circulating in Albany.  This bill makes it crystal-clear that it does not just cover museum deaccessioning, but would cover deaccessioning from "collecting institutions" - meaning libraries, archives, historical societies, zoos, and private foundations. 

In spirit, the revised bill is acceptable.  It recognizes that there are times when a collecting institution may wish to remove an item from its collections.  Those reasons include:

• The item is inconsistent with the mission of the collecting institution as set forth in its mission statement;
• The item has failed to retain its identity;
• The item is redundant;
• The item's preservation and conservation needs are beyond the capacity of the collecting institution to provide;
• The item is deaccessioned to accomplish refinement of collections as required by and/or stated in its collection management policy;
• It has been established that the item is inauthentic;
• The collecting institution is repatriating the item or returning the item to its rightful owner;
• The collecting institution is returning the item to the donor, or the donor's heirs or assigns, to fulfill donor restrictions relating to the item which the collecting institution is no longer able to meet;
• The item presents a hazard to people or other collection items.

(I might think of a few more, such as the item is missing or lost from the collection, but this is not a bad list.)

The law then says that if the collecting institution wants to deaccession or dispose of the item, it must first offer it for transfer or sale to another institution in New York state.  If no one wants it, it would then be offered to another collecting institution outside of New York. If they don't want it, then it can be sold on the open market.

The bill's proposed methods of implementing its goals are highly problematic.  Here are some issues:

1. It applies to all accessioned materials, and it governs material that you may want to discard.  Good professional practice requires that archives and manuscript repositories accession material upon receipt.  The material is then processed and unwanted material (including trash) is discarded.  This bill would require us to offer our trash to other institutions before we could get rid of it.
2. It may also not allow us to return unwanted material to the donor, even if the deed of gift stipulates this.
3. Proceeds from any sale of the item can only be used to acquire more material and/or for the preservation, protection or care of items in the collection.  The money cannot be used for "traditional and customary operating expenses."  But what about customary operating expenses that also serve to preserve and protect items in the collection?
4. Most troubling for small institutions is that they would have three years to publish a register of all accessioned items in the collection.  They would also have to publish a register of deaccessioned items.  This is a burdensome unfunded mandate.
5. Furthermore, the Board of Regents is required to construct a database that includes all items that a collecting institution wishes to deaccession.  Again, a huge procedural headache.
6. Institutions would also be required to write and publish a broad set of procedures and practices under the rubric of a "collection management policy."  I doubt if even the largest institutions have written procedures for all of the things specified in the bill.

Some will even argue about whether it is ever ok to deaccession material.  (You can follow some of the debates at the Deaccessioning Blog.)  If deaccessioning does occur, let's hope that we do not have to follow the well-meaning but problematic practices of A6959.

ALERT: Action needed in New York State

There is a proposed new law making its way through the New York State legislature that would regulate how museums deaccession items in their collections.  While ostensibly about museums, the law could have a major impact on how libraries function.  All libraries and historical societies in NY should write to the legislation's sponsors and ask that passage be delayed until definitions are clarified.

The bills are A06959 (introduced by Richard L. Brodsky) and its identical counterpart S04584 (introduced by José M. Serrano).  They would govern how museums acquire and dispose of objects.  You can learn more from a hearing on the topic found here.

The proposal has generated some discussion and concern within the museum community (see, for example, the letter from the Art Law Committee of the New York City Bar or the posts on the bill in the Art Law blog).  My concern is with its potential impact on libraries and archives.  The problem is that while the bill discusses the issue surrounding collecting in museums, it defines museums so broadly that most libraries and archives would fall under its sway. Here is the definition:

"MUSEUM" means any institution having collecting as a stated purpose in its charter, certificate of incorporation, or other organizing documents, or owning or holding collections, or intending to own or hold collections that is a governmental entity, education corporation, not-for-profit corporation, or charitable trust.

Since almost every library in the state owns or holds collections, for the purposes of the law they would be museums.  The law would sharply limit their ability to dispose of any material (other than returning it to the donor).  Everything the library or archives gets would have to be accessioned before it could be discarded.  And instead of throwing unwanted items into the trash or putting them in the local library book sale, a library would first have to offer the material to other "museums" in New York state and then the rest of the country.  Proceeds from any sale could only be used to support further acquisitions.

Please write to Assemblyman Brodsky and Senator Serrano and ask them delay any further action on this legislation until the definitions are modified to make it clear that libraries, archives, historical societies, and other groups in the state that collect are not subject to these onerous new terms.

Here are the addresses:

Assemblyman Richard L. Brodsky
LOB 422
Albany, NY 12248

Sen. José M. Serrano
848 Legislative Office Building
Albany, New York 12247

Why the Google Books Settlement is better than orphan works legislation

There has been a lot of talk by some of the critics of the Google Books Settlement (GBS) about how it gives Google a monopoly on orphan works.  But most of the commentators who have talked about orphan works and the Google settlement are sloppy in their language.  In this post, I want to clarify the language and then make a stab at some numbers.

There are two sets of books governed by the settlement.  First, there are the in-copyright but out of print books whose rights holders sign up with Google.  We can call these "active rights holders."  Second, there are the in-copyright but out-of-print books whose authors do not register with Google or the Books Rights Registry: the "inactive rights holders." 

Some like to call this second group "orphan works," but that is wrong.  This latter group actually consists of two separate groups.  First, there are rights holders who could be easily located but who have chosen not to sign up with the Registry.  Foreign authors whose works are normally protected by their national reproduction rights organization come readily to mind.  I suspect that many could not conceive that their works could be used without their explicit permission and so see no need to register.  Others may not learn of the settlement in spite of Google's advertising campaign.  Because these authors could be easily identified and located, however, their works are not orphan works.  The other portion of the "inactive rights holders" subset are the true orphan works: works whose copyright owners either cannot be located either because they cannot be identified or because their whereabouts are unknown.

The scope of the orphan works problem

Trying to come up with numbers is a very challenging task, but here is a quick attempt to get some ballpark figures.  First, we need to look at the potential scope of Google's database.  The Lavoie article on the Google 5 said that WorldCat contained 32 million print book records in 2005.  I think that number is too high because we know that there is a tremendous amount of duplication in WorldCat, but let's use it as the outside potential limits of the Google database.   Bowker's Global Books in Print reports 18.5 million book items in print, which leaves 13.5 million titles that are out-of-print.   (Since that is a current figure and would include books published between 2005 and 2009, it is probably too high - but I also suspect that there are many in-print foreign titles that are not included.  Let's use it.) 

Lavoie reported that there were 5.4 million titles that were out of copyright (pre-1923), so we are left with roughly 8 million titles that are potentially in copyright but out of print.  (Some of these would be American works that have not had their copyright renewed and hence are in the public domain, but I think the number could only be 150,000 1.7 million at most, and so I am going to ignore that).

[UPDATE: So I got a good question about the number of works that might have entered the public domain that pointed out that my original number is wrong.  Here is my thinking: of the 8 million books, half are in English (following WorldCat numbers) and hence are likely to be American works.  (I won't worry about books published only in England.)  Of those 4 million, 63% according to Lavoie are after 1963, and still protected by copyright.  That leaves 1.9 million works published between 1923 and 1964.  A 1961 copyright study suggested that maybe 9% of these works were renewed and still protected by copyright, though recent work by Michigan indicates that 41% of the works are still protected by copyright.  If we assume 90% are public domain, then 1.7 million works are public domain.  If 59% are PD, then 1.1 million are PD.  Let's call it 1.5 million - and the number of in-copyright but out of print works should drop from 8 million to 6.5 million.]

So we are talking about 8 [6.5] million works published since 1923 that are in copyright but out of print.  Of those, how many are going to have inactive rights holders?  What percentage of authors are going to register with Google, and what percentage will ignore the call?  Or if we look another way - what percentage of these works are true orphans?

Denise Troll Covey's numbers might provide some guidance.  In CMU's random trial, she was unable to locate 21% of publishers.  (There random sample was not limited to out-of-print books, so the percentage might actually be too low.)  If we assume that number would hold on the 8 [6.5] million, that would mean that we have about 1.7 [1.4] million true orphan works in the total database of 13.5 [12] million.  (That number might actually be smaller since some rights holders other than publishers might come forward via the settlement.)  The remaining 11.8 [10.6 ] million books would either have rights holders who registered with Google or who choose not to register. 

Even with orphan works legislation, these works would not be eligible for inclusion in a digitized books database since they are not true orphans.  The Google Books settlement is the only way to get cost-effective access to them. 

What we need in the settlement is a compulsory license that would allow anyone to license the use of a work maintained by a non-active rights holders, and not just orphan works.