Institute for Legal and Ethical Issues in the New Information Era: Challenges for Libraries, Museums and Archives<br> Summary of Selected Sessions

Institute for Legal and Ethical Issues in the New Information Era: Challenges for Libraries, Museums and Archives

Summary of Selected Sessions

Tomas A. Lipinski, J.D., L.L.M., Ph.D.
Co-Director and Assistant Professor
Center for Information Policy Research
School of Library and Information Science
University of Wisconsin-Milwaukee
P.O. Box 413
Milwaukee, Wisconsin, 53201
414-229-4909, 414-229-4848 (fax)
<tlipinsk@csd.uwm.edu>

Below is a summary of some of the sessions that were held at the Institute for Legal and Ethical Issues in the New Information Era: Challenges for Libraries, Museums and Archives, May 20 - May 26, 2000. All of the papers from the Institute will be published in book form eventually.

Robert J. Vanni, General Counsel of the New York Public Library discussed a variety of issues related to receiving gifts in library, museum, and archive settings. All non-profit libraries and other collecting institutions must increasingly rely on the beneficence of their donors to add both materials to their collections and funds to their coffers. As a result, the elements of deeds of gifts-in-kind and deposit, and deeds of gifts of restricted funds must be a part of daily language of administrators. Since the institution holds donated assets in trust, it is imperative that its management and successive librarians and curators understand the full extent of the gift, restrictions placed on it, and the duties and responsibilities being accepted by the restriction in perpetuity. Similarly, the donor's intentions must be clearly defined, and if need be, negotiated, to assure a meeting of the minds, satisfying both parties. The session will also look at some of the IRS regulations and requirements placed on donors of gifts-in-kind, including Form 8283 and the elements of a qualified appraisal.

The issue of patron privacy is a creature of state law, and Tomas A. Lipinski, Co-Director of the Center for Information Policy Research at the University of Wisconsin-Milwaukee and conference organizer, reminded participants that the law varies. Moreover, state law may not provide the level of patron privacy that staff may be comfortable with. The impact of "In the matter of Quad/Graphics, Inc. v. Southern Adirondack Library System," 174 Misc. 2d 291, 664 N.Y.S. 2d 225 (1997), where a New York court limited the court order exceptions to criminal proceedings only, was discussed. The point is that a given state’s library confidentiality statute may protect the library records of children against a parent’s review or of one spouse or family member against another spouse or family member. However, reliance on a statute alone may not be sufficient as a different state court interpreting a different state statute may not come to the same conclusion. The best course of action is to have policy indicating the precise extent of the desired confidentiality.

Claire Weber is an attorney who has spent her entire legal career drafting legislation (statutes, regulations, ordinances, and policies) at all levels of state and local government. Ms. Weber’s session (Designing, Drafting and Implementing New Polices) on library, museum and archive policies was a practical and necessary component of the ILEI. Policies should contain the following structure: title, statement of purpose, definition, person affected, general rules, secondary provisions, exceptions, sanctions or consequences and temporary provisions including effective date or expiration. It might seem strange but it was recommended that the initial policy drafting is a job for one person, subject of course to adequate review and oversight.

The Legal Responsibility to Offer Accessible Electronic Information to Patrons with Disabilities was presented by attorney and adjunct professor (San Jose State) Mary Minow. At first, the explosion of information technology benefited many people with disabilities by making information more easily accessible. However, as information technology has grown more sophisticated -- offering graphics and multimedia -- it has become less accessible to people with disabilities. Information technology is generally considered "accessible" if it does not depend on a single sense or ability. What many public institutions may overlook in the rush to have an active web presence is the simple fact that a web page that relies on graphics is not accessible to people with visual impairments unless text descriptions are included. Likewise, streaming audio is not accessible to people with hearing impairments unless captions are included. Minow discussed recent legal developments relating to disability access and the Internet, and made the argument that libraries, museums and archives adopt standards ensuring universal access to information technology.

Many libraries, museums and archives are using information gathered from the world wide web or are designing their own web content. Many sites are using trademark logos, images, words and phrases. A session by Tomas A. Lipinski discussed the concept of trademark fair use in library, museum and archive settings (Legal Issues Involved in the Design, Construction and Use of Web Sites in Libraries, Museums and Archives: Lessons from the Web Site Linking, Trespass and Other Controversies). In general, fair use of a trademark occurs when the "use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark, of the party's individual name in his own business, or of the individual name of anyone in privity with such party, or of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin." 15 U.S.C. § 1115(b)(4) (1998). This statutory form of fair use is known as descriptive trademark fair use. Typically it involves the defendant’s use (in the present discussion by a library, museum or archive) of a plaintiff’s trademark to describe the defendant’s (the library, museum, or archive) products or services. An example would be a library, museum or archive catalog record that contains a self-made subject heading for "world beat" music (the schedule of Library of Congress Subject Headings incidentally indicates that "world music" should be used for the world beat music category). This would be allowed as the label "world beat music" is too generic to impinge upon someone else’s trademark. A second form of fair use was developed by the courts and is known as nominative trademark fair use. New Kids on the Block v. News America Publishing. In nominative fair use, the defendant (the library, archive) is allowed to use the plaintiffs’ trademark to identify the plaintiff’s products and services and the relationship of the product or service to the defendant’s products or service if three factors are present. (This would be a case were the PBS logo is used on the museum, library or archive web site to identify PBS holdings in the collections or catalog of the library, museum or archive.) First, the product must not be readily identifiable without the use of the trademark. Second, no more of the trademark is used by the plaintiff than is reasonably necessary to identify the product. Finally, the defendant must not act in such a way as to suggest sponsorship or endorsement by the plaintiff. Here a library, museum or archive might want to use the PBS trademark to indicate that its collection contains educational videos from PBS. However, "where a defendant uses a plaintiff’s distinctive lettering style, color scheme, or logo, the nominative fair-use defense likely will fail." (Kelly and Gelchinsky) Thus use of the PBS logo in the virtual catalog or exhibit to indicate PBS holdings by the library, museum or archive would be unlikely to survive the New Kids on the Block test.

Copyright Protection and Technological Reform of Library Services: Digital Change, Practical Applications, and Congressional Actions prepared by Kenneth D. Crews and Dwayne K. Buttler, both of the Copyright Management Center, Indiana University Purdue University Indianapolis. The paper was presented by Kenny Crews and focused on Section 108 of the copyright law (United States Code, Title 17). Crews highlighted the recent changes regarding digitalization of materials in libraries and archives that resulted from the passage of the Digital Millennium Copyright Act (DMCA). Several overriding observations can serve to mobilize practitioners: the law is slow to adapt to applications of innovations in technology. Congress chooses to avoid addressing many details of new technologies by creating technologically neutral statutes and leaving to the courts and to the marketplace the duty of bringing some practical meaning to the law. When congressional action is forthcoming, balance or compromise between copyright users and owners is sought. One result is that the increasingly complex interrelationship between law and technology suggests two duties of increasing importance for information professionals. First, a responsibility to keep current with the changes in the law and second, to look critically at the law, seeking a reasoned interpretation of the law to situations of new technology.

That proactive message was echoed in a legal keynote speech by David Rice, Professor of Law at Roger Williams University School of Law. Rice has been an outspoken critic of Uniform Commercial Code reform regarding Article 2B, and its progeny the now infamous, UCITA (Uniform Computer Information Transactions Act). The law, when adopted by a particular state legislature would make information products and services subject to contract/license. Rice pointed out that making access and use of information in any modern democratic society subject to private actors (contract) is dangerous. Rice was also critical of the copyright protection anti-circumvention provisions of the DMCA. Access anti-circumvention measures, and access-regulating contract terms, impose substantially greater social costs. The technology blocks access to information content of a copyright-protected work even though copyright law makes clear that the protection does not extend to the information itself. The greatest danger stems from the DMCA’s extension of protection to digital forms of information, like folklore, that is not protected by copyright. According to Rice, access regulation technology and contractual regulation of access has the potential to exclude or control access to information about one’s own culture and heritage depending upon ability to pay or other terms. Copyright protection technology and use-regulating contract terms have the capacity to control how one uses the very same information, something far different than protecting against unauthorized copyright of the digital work in which the information is contained.

A full list of speakers and topics is listed below. Those summarized above are marked with an asterick.

*Deeds of Gift: Caressing the Hand that Feeds by Robert J. Vanni;

The Appraiser and the Appraisal: What Makes a Book Valuable? by Andrew Mclean;

The Rights of Privacy and Publicity in Personal Information and Persona Contained in Library, Museum and Archive Collections, Materials, Exhibits and Displays by Tomas A. Lipinski;

Censorship and Controversial Materials by Judith Krug;

Legal and Ethical Foundations of Museum Collecting Policies by Marie C. Malaro;

Collections Management: Hypothetical Cases for Discussion, Acquisitions, Deaccessions, and Loans by Ildiko P. DeAngelis;

*Legal Issues Involved in the Privacy Rights of Patrons in Public Libraries and Archives by Tomas A. Lipinski;

*The Legal Responsibility to Offer Accessible Electronic Information to Patrons with Disabilities by Mary Minow;

Seven Levels of Safety; Protecting People in Public Buildings by Bruce A. Shuman;

The Bout of the Century? Information Ethics vs. E-Commerce by Marsha Woodbury;

Information Ethics: Its Demarcation and Application by Johannes J. Britz;

Organizing Ethics in Archives, Museums, and Libraries: Challenges and Strategies for Meeting Ethical Responsibilities by Elizabeth A. Buchanan;

Copyright for Libraries, Museums and Archives: The Basics and Beyond by Shelly Warwick;

*Copyright Protection and Technological Reform of Library Services: Digital Change, Practical Applications, And Congressional Actions by Kenneth D. Crews and Dwayne K. Buttler;

*Legal Issues Involved in the Design, Construction and Use of Web Sites in Libraries, Museums and Archives: Lessons from the Web Site Linking, Trespass and Other Controversies by Tomas A. Lipinski;

*Legal-Technological Regulation of Information Access by David A. Rice;

Getting Started-Legal and Ethical Resources by Jane Colwin;

*Designing, Drafting and Implementing New Polices by Claire Weber; and

Agents of Change: Planning, Communication and Implementation Strategies by Thomas D. Walker.

Copyright (c) 2000 Tomas A. Lapinski

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