Mary Minow, J.D., A.M.L.S LibraryLaw.com Infopeople Workshop August 3, 2005 San Francisco Public Library August 8, 2005 Cerritos Public Library Don’t Run
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Mary Minow, J.D., A.M.L.S LibraryLaw.com Infopeople Workshop August 3, 2005 San Francisco Public Library August 8, 2005 Cerritos Public Library Don’t Run Away Screaming! Minimizing Legal Risks in Digitization Projects California Digital Library
The Congress shall have power... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries
...what actual risks you face when taking images and text from someone else's website.As an overview, you may already know that copyright law is rooted in the U.S. constitution, Article I, Section 8, Clause 8. Congress has the power TO PROMOTE THE PROGRESS of science (that's copyright) and useful arts (that's patents), by securing for LIMITED TIMES to authors and inventors the EXCLUSIVE right to their respective writings and discoveries.The theory is that by granting copyright owners rights, and then by ALSO granting USERS some rights, the law sets a balance that, in the end, results in an ever expanding production of new works.If you've been following the development of copyright law as set forth by Congress, you've seen the American Library Association take positions to stop growing trend towards greatly expanding owners rights.Warning: Many people think that because something's on the internet, especially if it doesn't have a (c) notice .... the (c) with a circle around it, that it's in the public domain.Far from it. Although the (c) notice USED to be required, since 1989 it's no longer necessary.... the moment an original work is set in a fixed format...including a web page, it's got an automatic copyright.The default you should assume for other people's works is that they ARE copyrighted. Today most written or recorded expression is covered by copyright law - take a look at the handout of Section 106 to read the law.I can't tell you how many times people have say to me, "I'M okay because I ALWAYS credit the author."NOT. Ethics are one thing ... law is another. Giving the original author credit DOES NOT EQUAL getting permission, and is not enough to make it safely through the copyright flow chart.
Liability
Cease and Desist Letters chillingeffects.org – has annotated
So what happens if a copyright holder goes after you?Commonly, they will send you a cease and desist letter. Often that works for copyright holders pretty well... you may not have money for a lawyer, you may not know your rights, and you may make a rational decision to take down the item.Today you have a really good place you can go to on the Net...to check out cease and desist letters and analyze which ones are well founded and which ones may be scare tactics. CHILLINGEFFECTS.org, a joint project of six law schools and the Electronic Frontier Foundation POSTS real cease and desist letters that users send them. Even better, CHILLING EFFECTS explains them by hyperlinking explanations right into the legalese used in the letter.You might want to go there even before you get a cease and desist letter just to poke around.The copyright holder can also file a lawsuit against you. If you printed out the handouts, you'll see a really important one...that's Section 504 of the copyright law that sets forth your liability.The copyright holder may sue you for what's called DAMAGES... that is, the lost profits of the copyright holder, due to your copying (plus any additional profits you've made)OR...and this is generally more important...if the copyright holder DID register the work with the copyright office ($30), she can sue you for $750 to $30,000 per incident. It can even go up to $150,000 per incident if its shown you copyed willfully.But take a CLOSE LOOK at 504 (C) 2 ...
Risk Management
•Familiarize yourself with “Fair Use”
-If library shows reasonable belief it’s Fair Use, …liability can go to $0 17 U.S.C. § 504(c)
•Insurance – check “advertising injury” clause
•Take-down policy
•Excellent disclaimer examples at Library of Congress American Memory memory.loc.gov/
Public Domain
Fair Use
Get Permission
Sec. 108
See also How I Learned to Love FAIR USE… or how to bring a $300,000 lawsuitdown to $0 if you're a library, archive, or nonprofit educational institution fairuse.stanford.edu/commentary_and_analysis/2003_07_minow.html
Your Chance To Raise Questions
Name
Job or role in project
Brief question you want addressed by end of day
Copyright is one of four types of Intellectual Property
• Trade Secrets
• Patents
• Trademark
• Copyright
WHAT DOES EACH PROTECT?
• Trade Secrets – secrets
• Patents - applied ideas
• Trademark – brands, logos
• Copyright – original
expression
Copyright protects only …
Copyright protects original works of authorship fixed in any tangible medium of expression
(1) literary works(2) musical works, including any accompanying words(3) dramatic works, including any accompanying music (4) pantomimes and choreographic works (5) pictorial, graphic, and sculptural works(6) motion pictures and other audiovisual works(7) sound recordings(8) architectural works
In no case does copyright protect an idea.
Copyright – Original Expression
17 U.S.C. Sect. 102
Further, Copyright is one of many ways to protect expression
Intangible - Need to Bottle It
PCLED Physical Ownership Copyright Licenses and agreements Encryption and Digital Rights Mgmt Digital Millennium Copyright Act
1998 Digital Millennium Copyright Act DMCA illegal to tamper with technological protection measures
ACCESS DENIEDeven if copyright law allows!
107, 108, 109, 110
TRAPPED INSIDE
Stay Up To Date With ALA, AALL
copyright.ala.org American Library Assn
www.aallnet.org American Association of Law Libraries
Subscribe to ALAWON ALA Washington Office Electronic Newsline
To subscribe, send this message to [email protected] ala-wo yourfirstname yourlastname
COPYRIGHT
Other restrictionsADA, VARA, NAGPRA, HIPAA, Deeds of Gift, Publicity
Privacy, Censorship and Pornography
Minimizing Legal Risks in Digitization Projects
Is It OK to Digitize Your Special Collection?
Public Domain
Fair Use
Get Permission
If no
Sec. 108
If no
If no
Copyright: Is it okay to digitize a work?
Facts
Recipes
Ideas
Dedicated works
Government works (U.S.)
Expired works
OKAY if in Public Domain
FRIDGE
Fridge
• Library address, hours• Call numbers• URLs• Population statistics
FACTS
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Facts are not copyrightable. You can't copyright statistics, an address, library hours, call numbers...you can't even copyright a URL, that is, a link to a website, since that is a factual address...
Compilations of Facts
• Directories• Bibliographies• Pathfinders• List of links• Cookbooks
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....but what about a list of links, or a list of addresses, book titles, etc? Copyright law does allow for COMPILATIONS to be protected. This is what is called a THIN COPYRIGHT... that is an individual fact is NOT COPYRIGHTABLE, but an original selection or arrangement does have a thin copyrightso individual links, book citations, etc are in the public domain, but COMPILATIONS, that can be found in directories, bibliographies, pathfinders, lists of links (with original selection or arrangement) are NOT in the public domain.
Court CasesDatabase Producers Lose
Telephone white pages not original-no copyright
• Feist v. Rural Telephone Service 499 U.S. 340 (1991)
School selection criteria - no copyright• Schoolhouse v. Anderson, 275 F.3d 726 (8th Cir. 2002)
Users owners
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Where were you in 1991? Were you working in a library, like I was? Did you hear of the FEIST case decided by the SUPREME COURT?I didn't learn of this case until I went to law school. A telephone white pages directory sued a competitor who had taken the listings and put them into a regional white page directory...without permission.The Supreme Court ruled for the USER... the guy who REPUBLISHED THE NAMES AND ADDRESSES WITHOUT PERMISSION. Names and addresses are FACTS, and are NOT copyrightable. Moreover, the Supreme Court said that the telephone directory did not even have minimal originality in its arrangement or selection - it was an ALPHABETICAL list of EVERYONE with a phone number.two years later, a federal appellate court ruled that even yellow pages did not have sufficient originality to be copyrightable - the facts in the listings are in the public domain and later cases have gone further... for example a real estate agent started a website with listings of area schools, including staff education levels, classes offered, sports offered etc...taking the information from a magazine called SchoolhouseThe Court wrote, "a competitor may take the bulk of the factual material from a preexisting compilation without infringing the author"s copyright."In fact, this is the only area in which copyright users have been winning...and is why copyright owners have lobbied hard for several years to pass DATABASE protection legislation... you cannot copyright facts
FRidgeMere listings of ingredients as in
recipes, formulas, compounds or prescriptions = NO COPYRIGHT
but.. Recipe or formulas accompanied by substantial literary expression or when there is a combination of recipes, as in a cookbook = Copyright
RECIPES
www.copyright.gov/fls/fl122.html
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the R in Fridge is Recipes.... this is really a subset of Facts and Ideas, but I needed the R or we'd have FIDGEPerhaps because this is so nonintuitive, the copyright office has a factsheet just on the copyright status of recipes.Recipes that are mere listings of ingredients do NOT HAVE COPYRIGHT Status .. they're in the PUBLIC DOMAINbut if the recipe is accompanied by substantial literary expression, {STIR WITH LOVE ...or ILLUSTRATIONS}, or when there is a combination of recipes, as in a cookbook, there will be a COPYRIGHT, but you can still pull out any facts, like the list of ingredients and basic instructions.
• Not copyrightable
• Not copyrightable
• Not copyrightable
FrIdge
IDEAS
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IDEAS are not copyrightableLet's say this three times, to counter all the times we've heard people say incorrectly - I'm going to copyright that idea!ideas are not copyrightableideas are not copyrightableideas are not copyrightable
Stack of Books - Great Idea!
NOT COPYRIGHTABLE
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for example, the Fort Vancouver Library District had a graphic that I really liked... a stack of books with subjects on their spines... that you could click and go right to education, history, kids. etc.Can you copy this idea? ABSOLUTELY. Ideas are not copyrightable.Is this graphic in the public domain? No - only the idea itself.
•
FRIDGE
Copyright owners may dedicate works to the public domain
• Use creative commons
or
• Write dedication notice on work
e.g. “This work is dedicated to the public domain”
DEDICATED
creativecommons.org/licenses/publicdomain/
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the D in FRIDGE, is DEDICATED WORKS. It's not terribly common, but a copyright owner can dedicate her work to the public domain. You may have heard of the creative commons, a nonprofit run by folks connected with Stanford Law School.Authors may go to the creative commons and dedicate their works to the public domain...or they can do it themselves, just by writing a dedication notice on the work... something like "this work is dedicated to the public domain."The creative commons also makes it easy for authors who want to KEEP their copyright ... Not dedicate their works to the public domain, where anyone can make any use at all, but rather retain some control by only permitting nonprofit use
“Dedicated” Clip Art
• Who dedicated it• Naive “dedications”
by enthusiastic folks who don’t have copyright authority
e.g. Yahright! – Cool site – fun!– Site closed!
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So... you're looking for clip art... and let's say you come across a great site filled with clip art..."dedicated to the public domain."learn a lesson from Yahright - a cool site that gathered and organized images and gave them away.Problem is you have to look at who dedicated the art ... only the owner has the legal right to do so, and you'll run into "naive dedications" out there by enthusiastic folks who don't have the copyright authority to do so.Cool site! FUN! CLOSED!
GOVT (U.S.)
FRIDGE
Govt (U.S.) works PUBLIC DOMAIN
State govt works• only cases, codes • or if dedicated• copyright is source of income in
California17 U.S.C. § 105
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G is for U.S. Government - probably my favorite source for public domain images... as you can see by this picture of Uncle Sam I found at a US government site.I want to stress U.S. government, as you can see in Section 105 of the law (another handout)NOT state government works... states MAY dedicate works, but do not have to, and may indeed find their copyrights as a source of state income, as is the case in California
Government Images
Domain .gov
Image search for parking meter in “.gov”
If image createdby U.S. govt, it’s not copyrightableokay to use
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But if the image is created by the U.S. government....it's in the public domain, and it's okay to use in any way you like.Most of the images I use in my presentations are ones I grabbed off US government sites. I go to google imges, limit the domain to .gov, and search.... here I searched for parking meter and site:.govYour results include state and local govt sites, but it's easy to figure out which is which.The harder part is trying to make sure it's an image created by the U.S. govt, and not a privately held image that the govt had permission to put on its website.
FRIDGE• Life of author plus
70 years• Corporate works
– 95 years from publication or
– 120 years from creation
EXPIRED
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Go to the head of the class if you said LIFE OF THE AUTHOR plus 70 years.If it's anonymous or a corporate work, it's 95 years from the date of publication... or 120 years from the date of creation...generally not too helpful for internet imagesso let's review...
The end of FRIDGE is E.... Expired worksthis won't help you too much with internet images, but it's possible, and it's good to know about.The term of copyright has changed many times over the years.Some older works have expired under earlier law, and it's such a complicated maze, that my hat is off to Lolly Gasaway and Peter Hirtle who have laid it out in charts for us mere mortals to use to figure out.Peter Hirtle's chart is one of the handouts for today, if you deal with older works at all, be sure to print that one up and you can use it if you know the date an item was published to figure out when it expires into the public domain.Do you know how long copyright term lasts for works published TODAY?
PUBLIC DOMAIN EXPIRATION
Public domain
Published v. Unpublished
Published
Unpublished
1909 On sale or publicly distributed under authority of copyright owner
1909 Act Sect. 26
1976+Distributed or offered to distribute copies to the public by sale, rental, lease, or lending
Definition of Publication
17 U.S.C. Sect. 101
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1909 act § 26. Terms definedIn the interpretation and construction of this title "the date of publication" shall in the case of a work of which copies are reproduced for sale or distribution be held to be the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority, and the word4C author" shall include an employer in the case of works made for hire.
mm
[ At least one court has said that mere unrestricted placement in a public library is publication because publication is distribution of copies by rental lease or lending.See Copyright Office Compendium II (1984) at § 905.03; Wright v. Warner Books, 748 F. Supp. 105 (S.D.N.Y. 1990) (sale of author's letters by copyright owner to Yale library, with no restrictive agreements required as condition of access, deemed publication); but cf. Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987)(library deposit of author's letters by recipients, with restrictive agreements signed as condition of access, deemed not publication). http://www.legallanguage.com/lawarticles/Clarida010.html]
Are original art works “published”?
17 U.S.C. Sect. 101
Public display of a work does not of itself constitute publication.
copyright lasts 95 years
___________________________________________
Life plus 70 years
Anonymous Pseudonymous Works, and Works Made for Hire = 120 years from creation
Expired
Works created before 1978
Published
Unpublished17 U.S.C. Sect. 303
Life of author plus 70 yrs measured by last surviving author
Anonymous, Pseudonymous Works, and Works Made for Hireshorter of 120 years from creation
or 95 years from publication
Expired
Works created 1978 and later
17 U.S.C. Sect. 302
Sonny Bono Copyright Term Extension Act 1998
Public Law 105–298, 112 Stat. 2827 (1998);Upheld by Eldred v Ashcroft, 537 US 186 (2003).
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it added 20 years to copyright; it was effective IMMEDIATELY in 1998 and RETROACTIVELY gave us the 95 year term, freezing the next 20 years of published works from entering the public domain.
19231924192519261927
Published WorksFrozen Years
Year Published or Registered
2008 19222009 19222010 1922… …
2019 19232020 1924
Published WorksUnfreeze in 2019
GIANT Exception to 95 Year Term for Published Works
1923-1963 if no renewal 1923-1978 if no copyright notice
Do you realize that declaring the 1976 Act unconstitutional would throw all unpublished works back into copyright (since prior to the 1976 Act unpublished works had perpetual copyright under common law)? This could create a real problem for digitizing published works since many published works only had limited (not general) distribution and hence are still considered to be unpublished. (This, BTW, is a big problem. You can't digitize a published work that lacks notice because you assume it is in the public domain. You must first figure out if it received general distribution.)
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RENEWALS: Copyright renewals were necessary for works published or registered before January 1, 1964. Works at that time had a 28 year copyright term, which could be renewed. Less than 10% of all copyrights were renewed and fewer than 5% of copyrighted books and pamphlets were renewed during that period according to a 1961 Copyright Office study. James J. Guinan Jr. Duration of copyright. In Copyright law revision. Studies prepared for the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, United States Senate, 86th Congress, first [-second] session, 8. Washington, D.C.: U.S. Govt. Print. Off.: 1961, cited in Samuel Demas and Jennie L. Brogdon, "Determining Copyright Status for Preservation and Access: Defining Reasonable Effort," Library Resources and Technical Services 41:4 (October 1997): 323-334
Michael Lesk’s unofficial database Book renewals 1923-1963
U.S. Copyright Office Search
www.copyright.gov/records/
Published U.S. Works Clear Sailing
Rocks at the Edges
Warnings:
• Don’t use newer versions – Disney’s Peter Pan is not public domain
• Trademarks can last forever– don’t confuse users – “Readers in Disneyland”
• Foreign works – see Peter Hirtle’s chart
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First, make sure you’re working with the original version. Take Peter Pan. James Barrie wrote various versions of Peter Pan before 1911. [Scottish - but we treat foreign countries that we have treaties with the same way we treat domestic authors for the most part] You can use the original text, but not a later version, and definitely not the Disney version of Peter Pan, which is still in copyright. (By the way an axiom in IP law is DON’T MESS WITH THE MOUSE)Trademarks, unlike copyright, lasts forever. Some cartoon characters, particularly those in the stream of commerce may be trademarks DON’T MESS WITH THE picture of Peter Pan from the Peanut Butter Jars.And for those of you in California and other western states, if you have foreign works from 1909-1922, you might want to check with an attorney about a controversial court decision, .. Twin Books v. Walt Disney Co., 83 F. 3d 1162 (9th Cir. 1996) that may restore copyright to some of these works. This is in the notes for the chart.
Unpublished works had PERPETUAL protection under the common law. The 1976 copyright act changed that. It gave unpublished works limited terms, but included a grace period that would last to the futuristic date of 2003.Some of you old-timers have been waiting for this day to come for over 25 YEARS! Those of you who happened into this lately, welcome to the...
Public Domain Parties
First time unpublished works entered public domain per 1976 Copyright Act
Public Domain Tears
Lost 20 years Authors death 1932 instead of 1952 Corporate works 1882 instead of 1902
Extra 20 Layers of Years Buried in Sand
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You can get a certified report from the Copyright Office that serves as a complete defense to any copyright lawsuit.“Presumption as to Author’s Death. After a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, any person who obtains from the Copyright Office a certified report is entitled to the benefit of a presumption that the author has been dead for at least 70 years. Reliance in good faith upon this presumption shall be a complete defense to any action for infringement under this title. 17 USC 302 (2001).”
Sec. 108
1922
Life + 70or 120 yrs
See Chart
Published 1922Unpublished Life +70/120
Public Domain
Sect. 108 Library Exception
Important for libraries for• Preservation• Replacement• interlibrary loan and user
requests
Slightly useful for digitization except allows libraries to copy works in their last 20 years of copyright if not subject to “normal commercial exploitation”
Public Domain
Fair Use
Get Permission
Sec. 108Libraries
www.librarylaw.com/DigitizationTable.htm
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if the item you want isn't in the public domain, THE PUBLIC DOMAIN, go down the flow chart to the YELLOW DIAMOND, the library exception.This exception, Section 108 and one of your handouts, is extremely important to libraries for preservation, replacement, and interlibrary loan.It's not terribly useful for web pages, but does have one minor allowance for libraries, archives and educational institutions when it comes to old stuff... it allows us to copy works that are still in their last 20 years of copyright if the works are not subject to normal commercial exploitation, a term that isn't defined in the law.This exception can be useful if you're doing digitzation projects, and the link at the bottom of this slide, to librarylaw.com, my site, has a chart for library digitization projects.
3. When is it FAIR USE?
Public Domain
Fair Use
Get Permission
Sec. 108Libraries
YesOk to use
N/A
Probably Use it according to your risk tolerance
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but moving right along... Section 108 isn't likely to help you in copying web page images and text... your next best bet is to make a good faith determination that .... EVEN THOUGH WHAT YOU WANT TO COPY IS COPYRIGHTED, OR YOU THINK IT"S PROBABLY COPYRIGHTED... that YOUR use is probably a fair use.This is the GRAY diamond... and the best you're likely to get is a probably in your analysis, which is why it's helpful to know your risk tolerance ahead of time.What is FAIR USE? Even though it's not CONCRETELY defined, the law does give FACTORS on how to make a fair use evaluation... better than just a random "I think it's fair use, don't you?" that you might say to a colleague at a cocktail party.
SECTION 108 LIBRARY and
ARCHIVES EXCEPTION
Sect. 108 Libraries and Archives Threshold Requirements
Must:
• be open to the public or• to specialized researchers
nonaffiliated with institution
ALSO must
• not make copies for commercial advantage and
• include notice of copyright on copies.
17 U.S.C. Sect. 108 (a)
Section 108
Section 108: Digitize Copyrighted Works
1. limited worksCan put on web
2. broad class of works for preservationIn-house only
17 U.S.C. 108 (h) (added in 1998)
1. Limited Exception restores 20 years for some published works
20 frozen years
Some works released
19231924192519261927
CAUTION: NIMBLE SAILING
Libraries and Archives Have Their Own Chart
20 Years Restored (Published Works)
Minow chartLibraryLaw.com
Reasonable Investigation Normal Commercial Exploitation
Can’t digitize if
subject to normal commercial exploitation
-obtainable at a reasonable price; or-copyright owner has notice on file with
Copyright Office
17 U.S.C. 108 (h);37 C.F.R. Sec. 201.39 (2001)
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[“(h) (1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply. (2) No reproduction, distribution, display, or performance is authorized under this subsection if - (A) the work is subject to normal commercial exploitation; (B) a copy or phonorecord of the work can be obtained at a reasonable price; or (C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies. (3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.”]
Sect. 108(h) and Risk Tolerance
last 20 yrs
37 C.F.R. Sec. 201.39 (2001)
One view: if not “in print” or “on file” at Copyright Office then OK to use
Another view: Virtually nothing is OK to use
Check with your institution & attorney
Section108 (b)(c)
2. Broad class of works for preservation
ANY YEAR
Can’t put on Web
ANY FORMAT
Section 108(c)Published Works
Replacement of Damaged, Deteriorating, Lost, Stolen Works, Obsolete Format
• Out of Print• May make 3 copies• Digital Copies USE IN-HOUSE
Section 108(b)Unpublished Works
Preservation, Security
• Original in your library or archives• May make 3 Copies• Digital copies USE IN-HOUSE or
Research use in another library or archives
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[b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if - (1) the copy or phonorecord reproduced is currently in the collections of the library or archives; and (2) any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives. ]
Section 108
20 years
I n-house onlyFair Use
Section 108 Review
Exercise: Is it still copyrighted?2 Photographs of local bridge
– 1 Unpublished 1927– 1 Published 1940
2 Letters- 1 Unpublished 1978- 1 Published 1928
Is It OK to Digitize Your Special Collection?
Public Domain
Fair Use
Get Permission
If no
Sec. 108
If no
If no
Copyright: Is it okay to digitize a work?
“I will tell you that I have found it instructive and exhilarating to be involved at the cutting edge of the law, even though my presence at the cutting edge was in the role of the salami.”
- Judge Pierre Leval
Fair Use?
mm
Judge Pierre Leval, whose rulings from the district court in both the Salinger v. Random House, Inc. n219 and New Era Publications International, ApS v. Henry Holt & Co. n220 cases had been reversed on appeal to the Second Circuit, appeared before the Joint Subcommittee in support of the bills. "I will tell you that I have found it instructive and exhilarating to be involved at the cutting edge of the law," he said by introduction, "even though my presence at the cutting edge was in the role of the salami." Fair Use and Unpublished Works: Joint Hearing on S. 2370 and H.R. 4263 Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate Comm. on the Judiciary and the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the House Comm. on the Judiciary, 101st Cong. 107 (1990) (statement of Judge Pierre Leval) [hereinafter 1990 Joint Hearing]. at 101 (statement of Judge Pierre Leval).]
Risk Evaluation
Damages may be $0 for nonprofit educational institution, library, or archives if
*Believe and
*Reasonable grounds to believe fair use
17 U.S.C. Sect. 504 (c) see also fairuse.stanford.edu
Court will Use PNAM FactorsPurpose
Nature of work
Amount
Market harm
Fair Use?
Fair Use-Summary
Likely Yes Likely No
Purpose + Nonprofit Create new work
Commercial No new work
Nature + Reference, nonfiction Published
Fiction, Art Music Unpublished
Amount + Small amt (relative to original whole)
Complete work Heart of work
Market + Doesn’t hurt market of original
Hurts market or potential market of original
Thumbnails help with Fair Use
Kelly v. Arriba-Soft, 280 F3d 934 (9th Cir. 2002)
Case: Photographer sued image search engine and lost
Court:Purpose - commercial but transformative
Nature – creative
Amount – all but poor resolution
Market – little effect
Photos by Leslie Kelly
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Arriba Soft ran a search engine that displayed images obtained by spidering the web. It downloaded full-size images, reduced them to small thumbnails, then discarded full-size. (See, e.g., Google.)Users could search for images; Arriba would display thumbnails Clicking a thumbnail would access the original web page but display only the image Kelly had copyrighted photos on his website; 35 appeared on Arriba “Copyright management information” was on Kelly’s site but was not displayed by ArribaKelly sued for copyright infringement & violation of the DMCA District court held for Kelly; Arriba appealed Held, no copyright infringement for the thumbnailsReversed, as to infringement of the public display right for the full-sized imagesIs the defendant’s use commercial?Yes, but no direct financial benefit due to Kelly’s images.Is the defendant’s use transformative?Yes. Appearance of the images is differentPurpose of the images is different addition of the link addition of key words addition of databaseDid the defendant take as little as possible?Yes. By reducing the pictures to thumbnails, the resolution is so poor that the pictures will have little, if any, utility.Is the plaintiff’s work creative - Yes.Is the plaintiff’s work published? YesThe resolution is too poor for the high quality uses for which Mr. Kelly licenses the originals.Mr. Kelly produced no evidence of impact on his market.
– May have been transferred– Descends to heirs– Check probate records
Get Permission
• Tell owner what your intended use is
• Need only nonexclusive use
• Worldwide “in all media now known or later devised”
• Get owner to warrant that s/he has the right to grant permission (if not, ask for lead)
Your Request
Deeds of GiftSince 1970s most include copyright transfer
language … but donors sign without understanding
Registered copyright …get owner to transfer
If donor retains copyright, clarify who researchers go to for permissions
After the fact: Get “gift confirmation” verifying that on __date gave unrestricted gift
Deeds of Gift ResourcesGuide to Deeds of Gift at
www.archivists.org/publications/deed_of_gift.asp
Robert Vanni, New York Public Library Counsel, Chapter in Tomas Lipinski, Libraries, Museums and Archives: Legal Issues and Ethical Challenges… (Scarecrow: 2002)
Marsha S. Shaines, Checklist for Gift Agreements, Legal Problems of Museum Administration (ALI-ABA: 2003)
Administrator
In the case of a contract, the elements necessary to make it a binding document are: agreement, consideration, competent parties and lawful purpose. For a deed of gift to be valid it must show donative intent, actual delivery and acceptance by the receiving party.
CDL Rights Management Group
• Setting forth metadata to describe copyright status of item
Gather infofor CDL
rights metadata
Is It OK to Digitize Your Special Collection?
Public Domain
Fair Use
Get Permission
If no
Sec. 108
If no
If no
After evaluating permission,might reexamine FAIR USE
Disclaimers Library of Congress American Memory
About Copyright and the Collections. Whenever possible, the Library of Congress provides factual information about copyright owners and related matters in the catalog records, finding aids and other texts that accompany collections. As a publicly supported institution, the Library generally does not own rights in its collections. Therefore, it does not charge permission fees for use of such material and generally does not grant or deny permission to publish or otherwise distribute material in its collections.
Permission and possible fees may be required from the copyright owner independently of the Library. It is the researcher's obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing materials found in the Library's collections.
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www.loc.gov/homepage/legal.html
Disclaimers Library of Congress American Memory
Despite extensive research, the Library has been unable to identify all possible rights holders in the materials in this collection. Thus, some of the materials provided here online are made available under an assertion of fair use (17 U.S.C. 107).
memory.loc.gov/ammem/coolhtml/ccres.html
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Despite extensive research, the Library has been unable to identify all possible rights holders in the materials in this collection. Thus, some of the materials provided here online are made available under an assertion of fair use (17 U.S.C. 107). Therefore, we stress that this collection and the materials contained therein are provided strictly for noncommercial educational and research purposes. Again, responsibility for making an independent legal assessment and independently securing any necessary permissions ultimately rests with persons desiring to use particular items in the context of the intended use.
Copyright and Other Restrictions The Library of Congress is not aware of any U.S. copyright protection (see Title 17, U.S.C.) or any other restrictions in the content of these periodicals. Copyright protection has expired for works published in the United States before 1923. The Library of Congress and Cornell University Library are providing access to these materials for educational and research purposes.
Further copyright information is available at AmericanMemory and Copyright.
Other restrictionsADA, VARA, NAGPRA, HIPPA, Deeds of Gift, Publicity
Privacy, Censorship and Pornography
Other Restrictions
ADA - Disability Access to Electronic Resources
Welcome to [IMAGE]
“alt tags” give text [Midtown City Hall, 1933]
Standards: Web Accessibility Initiative (WAI) from W3C
www.w3.org/WAI/
Americans with Disabilities Act (ADA)Section 508 of the Rehabilitation Act
Visual Artists Rights Act (VARA)
Works created 1990+Paintings, drawings, prints, sculptures
> 200 copies
Authors’ rights of attribution, integrity
Related:State laws, Local lawsOther countries’ laws
17 U.S.C. Sec. 106A, 113(d); also Berne Convention
MORAL RIGHTS
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A "work of visual art" is-- (1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. A work of visual art does not include-- (A) (i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication; (ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container; (iii) any portion or part of any item described in clause (i) or (ii); (B) any work made for hire; or (C) any work not subject to copyright protection under this title.
Native American Graves Protection and Repatriation Act (NAGPRA)
Mark Perry. “Digital Propertization of the New Artifacts: The Application of Technologies for ‘Soft’ Representations of the Physical and Metaphysical” (Summer, 2003) 11 Cardozo J. Int'l & Comp. L. 671
San Francisco State University, NAGPRA Compliance Project www.sfsu.edu/~nagpra
Related: UNESCO Convention on Transfer of Cultural Property State repatriation laws
Native American Graves Protection and Repatriation Act of November 16, 1990 is a statute that requires federal agencies and museums that receive federal funds to consult with Indian tribes, Native Alaskan entities, and Native Hawaiian organizations regarding the proper care and disposition of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. The act defines cultural patrimony as an object having an ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American. Before digitizing any of the above mentioned items determine if the proper entities have been notified regarding their disposition. Many Native American groups consider their cultural artifacts to be communal property.
Health Insurance Portability and Accountability Act
PHI – protected health info
“covered entities”
…health care clearinghouses who transmit health information in electronic form …
See testimony by Stephen Novak, Columbia Univ. Health Science Library Jan 2005 to HHSncvhs.hhs.gov/050111p5.htm
www.alhhs.orgArchivist and Librarians in the History of the Health Sciences
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Created by Health and Human Svcs., enforced by their Office of Civil Rights amends the Internal Revenue Service Code of 1986 "administrative simplification" - two major parts I'll discuss Privacy Rule - privacy and confidentiality for PHI including all past, present, and future information [compliance required last year] Security Rule - PHI stays safe even when you move it or store it [compliance required April 21, 2005] most non-medical people say "oh, that big form..."
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http://www.library.ucla.edu/libraries/biomed/alhhs/lettertommythompson.html From the Newsletter of the Archivist and Librarians in the History of the Health SciencesWinter, 2003-2004, Volume XXVII, Number 1 Letter from SAA to HHS Secretary Tommy Thompson Regarding HIPAABy Timothy L Ericson and Jodi KosteOctober 22, 2003 Secretary Tommy ThompsonUS Department of Health and Human Services200 Independence Avenue, SWWashington, DC 20201Dear Secretary Thompson: We, the presidents of the Society of American Archivists (SAA) and the Archivists and Librarians in the History of the Health Sciences (ALHHS), are writing to you to seek clarification about the implications of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) for archival and historical repositories.SAA is the oldest and largest association of archivists in the United States, representing more than 3,100 individuals and 500 institutions. It is the authoritative voice in the United States on issues that affect identification, preservation, and use of historical records. ALHHS is an educational association of archivists, librarians, and other specialists, primarily from the United States, who work with historical records and resources related to the history of the health sciences.Most members of ALHHS have records in their collections that contain Protected Health Information (PHI). SAA members working in a wide variety of archives, including those of local governments, churches and religious orders, universities, hospitals, and historical societies, often find themselves dealing with records containing PHI.Members of both organizations have been dealing with the implications of the HIPAA Privacy Rule. Archivists and librarians are particularly sensitive to the issues this Act addresses, and have long been aware of the need to balance access to research collections containing individually identifiable information with the need to protect personal privacy.The ambiguities and lack of clarity in some parts of the HIPAA Privacy Rule have caused institutions to interpret the rule in widely disparate ways, resulting in different rules of access to the same types of records in different repositories. We fear that, for some institutions, confusion about certain aspects of the Privacy Rule will lead to simply denying access to any records that might contain PHI.Therefore, we would like HHS to clarify, if possible, some questions about the Privacy Rule that have arisen among our members since the rule went into effect in April 2003.Some of these questions are:Does the Privacy Rule apply retroactively? If so, how far back does it extend? Explanation: Archives and libraries have medical records dating back in some cases to the Revolutionary War and earlier. Although we understand that research in the PHI of deceased patients is allowed under the privacy rule, as it stands now researchers seeking to use the casebook of a 19th century physician or the records of state asylums would have to fulfill the provisions of the rule in the same way as those seeking to use early 20th century hospital patient records. Is it possible to establish a date before which records with PHI could be made available without researchers having to go through a privacy or institutional review board?If a “non-covered” part of a hybrid institution receives records with PHI from a “covered” part of the institution, must it create a business associate agreement? Explanation: Must a university library have an agreement with its university hospital before accepting records with PHI? Must state archives have agreements with all those branches of state government that generate records with PHI?Do the guidelines for research in the PHI of deceased patients allow the researcher to use actual patient names? If not, is there a chronological point at which the names can be used? Explanation: The rule for research use of PHI of deceased patients is currently unclear if access to these records allows researchers to use actual patient names in their finished product. If use of names is not allowed, it would mean that certain historical and genealogical works could not be written.Physicians and other health care providers often mention names of patients they are treating in their correspondence—sometimes casually, sometimes in more detail. At what point does this correspondence become PHI? Explanation: The papers of physicians, nurses, and biomedical scientists are filled with correspondence, outside of formal patient records, in which the names of patients are mentioned. So are records, such as constituent mail written to Senators and Representatives as well as old church and school records. Often this is done in the most casual way, but occasionally it is more detailed. As the Privacy Rule stands now, archivists will have to examine every document to make sure no patient names are mentioned – an impossible task for most of the profession. It may lead to closing many collections in which the amount of PHI is minimal.If photographs of patients were taken for publicity, fundraising, or clinical purposes, and these images appeared in published form in the past, can we assume that the patients depicted gave their consent to be published, even if the actual consent forms no longer exist? Explanation: Scientific articles, hospital newsletters, medical school alumni magazines, and fundraising publications are just a few of the many forms of printed matter that have long used photos of patients. We know that at many institutions some kind of permission was asked of the subject(s) of the photos before publication, but in most cases these forms no longer exist. Can we allow examination and publication of these images if they have previously been made public? If not, the bulk of the photograph collections held in biomedical libraries and archives will have to be closed.We hope you can give us guidance in these matters. Because of the general uncertainty about the meaning of the Privacy Rule provisions, many of our most important sources in the history of medicine and the allied sciences may be closed for research use.We understand that these concerns are somewhat out of the normal sphere of HHS expertise. We are available to answer any questions you may have, and both organizations would welcome the opportunity to work with HHS representatives to attempt to resolve these issues. We hope to hear from you.Sincerely, Timothy L EricsonPresident, Society of American Archivists527 S Wells St, Fifth FloorChicago, IL [email protected] KostePresident, Archivists and Librarians in the History of the Health SciencesVirginia Commonwealth UniversitySpecial Collections and ArchivesTompkins-McCaw LibraryBox 980582Richmond, VA [email protected] cc: Nancy Perkin Beaumont, SAA Executive Director
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From the Newsletter of the Archivist and Librarians in the History of the Health SciencesSummer, 2003, Volume XXVI, Number 3 The Health Insurance Portability and Accountability Act of 1996: It’s Implications for History of Medicine Collections By Stephen E. Novak (Readers should be aware that the author is not a lawyer; in addition, lawyers at different institutions are interpreting HIPAA in various and sometimes contradictory ways. Any procedures you establish at your library or archives regarding HIPAA must be discussed first with your institution’s lawyers.)HIPAA, the Health Insurance Portability and Accountability Act of 1996, is – to simplify a bit – a law designed to make it easier for Americans to obtain and retain health insurance. Among other things, HIPAA created for the first time federal guidelines for the protection of “personally identifiable health information” or as it is generally called “Protected Health Information” or PHI.As a consequence of this, a provision of the Act required the Secretary of the Department of Health & Human Services to issue regulations governing the use of “individually identifiable health information” if Congress did not enact such a privacy rule within 3 years of the passage of HIPAA. Congress did not, so HHS published the first draft of the HIPAA “Privacy Rule” in Nov. 1999; it was issued in a “final” form in Dec. 2000; however, HHS proposed further modifications to the Rule in March 2002. These were published in their final form in August of that year. Date for compliance for most institutions was April 14, 2003. The regulations allow the Secretary of HHS to amend the Privacy Rule, though not more than once every 12 months - so the Rule is not locked in its present form forever and we will need to be aware of any changes that occur over the years.The HIPAA Privacy Rule has led to significant changes in the way patient information is dealt with in hospitals, clinics, doctors’ offices, insurance companies and laboratories. Academic medical centers, in particular, with their large patient populations, extensive research involving human subjects, and dependence on federal dollars, have devoted significant resources in tight fiscal times to prepare for the compliance date. At Columbia, we’ve hired an experienced health care lawyer to be “Associate Vice President for HIPAA Compliance” to train all University employees who normally handle patient information. Anxiety about the Rule has led to overreaction, leading some hospitals to refuse to give out information about patients’ conditions - or even if they’ve been admitted! Both disclosures, by the way, are permitted under the HIPAA Privacy Rule.HHS says it received over 63,000 public comments on the Privacy Rule while it was being formulated. It’s clear from reading the legislation that none of these comments were from archivists, librarians, manuscript curators or historians. While grappling with the Privacy Rule, it should be remembered that its underlying rationale appears to have been to protect personal health information from being improperly disclosed to insurance companies or employers. It is not a plot to bedevil archivists or to deny tenure to junior members of history departments. But because its basic orientation is the use of health care information in the world of hospitals and biomedical research, the Privacy Rule of HIPAA is not an exact fit for the types of research we deal with on a daily basis.Nevertheless, while those of us who have patient information in our collections need to be aware of the implications of the HIPAA privacy regulations, we should not be unduly intimidated by them. We have, in fact, been dealing with these questions of access to patient information for many years. We’re sensitive to the issues of balancing the individual’s right to privacy with the need to make these records accessible for scholarly research. The difference now is that instead of policing ourselves, we must comply with specific legislation that specifies both civil and criminal penalties if our institutions are found in violation. Still, to paraphrase Mark Twain’s comments about the music of Wagner, HIPAA is “not as bad as it sounds.”First, some definitions. What, or who, does the Privacy Rule cover? Well, mostly something called a “covered entity” which is defined as “health plans, health care clearinghouses and any health care provider (which can mean an individual, as well as an institution) who transmits health information in electronic form in connection with a transaction which HHS has adopted a standard.” An HHS publication is very clear about this: “The Privacy Rule applies only to covered entities. Many organizations that use, collect, access, and disclose individually identifiable health information will not be covered entities, and thus, will not have to comply with the Privacy Rule.” Ah, you think, I’m off the hook, I work for a University, not a health care provider. Not so fast. While the main mission of X University is education, it may be, in part, a health care provider. It may operate a hospital or, like Columbia - which does not actually own the hospital at Columbia-Presbyterian Medical Center - it may be responsible for the faculty practice plan. If this is so, you are probably part of a “hybrid entity” defined as “a single legal entity that...performs business activities that include both covered and noncovered functions.” HHS goes on to say that the Privacy Rule generally only applies to those components of the hybrid entity that have been designated as “covered” (that is, those that have health care responsibilities), but that non-covered components of the institutions may be affected because the health care component is limited in how it can share patient information with the “non-covered” components. Columbia, for instance, considers itself a “hybrid entity.” OK, so you’re neither a covered entity nor a hybrid one, can you happily ignore the HIPAA privacy rule? Well, maybe not. There is a third category affected by the Rule. These are defined as “business associates.” They are defined as “a person or entity who, on behalf of a covered entity, performs or assists in performance of a function or activity involving the use or disclosure of individually identifiable health information.” The HHS definition then goes on to identify some of those activities and they unlikely to be functions any of us here are performing - or at least I hope your fiscal situation hasn’t gotten so bad that your institution has you involved in “claims processing, utilization review, and quality assurance,” to quote the HHS definition. But just when you think you’re home free, HHS goes on to say that business associates are ALSO persons or entities performing “legal, actuarial, ... management, administrative or financial services to or for a covered entity where performing these services involves disclosure of individually identifiable health information...”So, say your organization has no health care functions, but you’ve acquired the patient records of a hospital in your city, does that make you a business associate? - after all you’re storing them and administering them. You might be. Whether the HIPAA Privacy Rule applies retroactively to records created before it came into effect is unclear. At Columbia, our lawyers are assuming the Rule does apply retroactively and that, therefore, Archives & Special Collections functions as a business associate for those covered entities whose records we acquired in the past. Beyond this, just before I left for Boston, I was told the University was thinking of designating the entire Library as having “covered” functions even though we have no health care responsibilities simply because Archives & Special Collections holds records with PHI. And you thought you were confused by HIPAA….However your lawyers rule on the “retroactivity” of the Privacy Rule, it does appear certain that future acquisition of records containing PHI that were created by a covered institution will have to be regulated by a business associate agreement.What records does the Privacy Rule apply to? It covers records containing “protected health information” better known as PHI, and defined as “individually identifiable health information, held or maintained by a covered entity or its business associates...that is transmitted or maintained in any form or medium.” Again, be aware that the Privacy Rule only applies to PHI held by a covered entity or its business associates. But also remember that a “covered entity” can be an individual physician whose PHI-laden records may be part of his or her papers that you now have.Once you’ve determined that yes, your institution falls into one of the 3 categories regulated by the Privacy Rule, are you allowed to “disclose” PHI to researchers? Yes, research is a permitted use under the Rule and the Rule outlines when and how it is allowed. There are several ways records containing PHI can be disclosed for research purposes. Let’s first consider access to records containing PHI of individuals who are alive or can be presumed to be alive. The Privacy Rule allows use and disclosure of PHI of living individuals for research purposes by several methods of which I will discuss the three that will be most likely encountered in an archival setting. First, the covered entity may disclose PHI without restriction if it is de-identified. This requires the elimination of 18 elements from all the records to be used by a researcher. Some of the information to be removed is obvious: name, telephone number, social security number, etc. But also to be eliminated under the Privacy Rule are “all geographic subdivisions smaller than a state” including street or city, and date elements (except year) relating to admission and discharge, date of death and for PHI of those age 89 or over, even their birth year.The incredible amount of labor needed to de-identify records - especially considering that much historical research involves large numbers of these records - makes this an unlikely option for most archival repositories holding PHI. Of course, if you receive records already de-identified you can be secure in the knowledge that they can be used for research purposes without any restrictions. But such denuded records will be such thin gruel for historical research I can’t imagine why anyone would want to.The Privacy Rule also allows individuals to authorize a covered entity to disclose or use their PHI for research purposes. This provision may not be of much help to archivists and manuscript curators depending on how your institution reads the Rule. If you consider, as we do at Columbia, that the Privacy Rule applies retroactively to records created before the Rule went into effect there is a fairly obvious problem. First, these authorizations were only established as part of HIPAA (they are not the same things as Informed Consent agreements) so none of our records - all created before HIPPA - will have any such authorizations. But even if they did, we’d still have difficulties because the Rule is clear that authorizations are valid only for a specific research study, not “to nonspecific research or to future, unspecified projects.” So, even if our successors 50 years from now receive the research records of a faculty member who did his research under the HIPAA Privacy Rule in 2005 and who at that time obtained individual authorizations, any researcher wanting to reuse those records for his or her own research would have to obtain another authorization from the individuals involved. This is unlikely to happen.A third method of allowing use of PHI is by obtaining a waiver of authorization. A waiver allows PHI to be disclosed or used in a specific research project without authorization from the individuals whose PHI is involved. It may be a “full” or “partial” waiver. Waivers must be obtained from Institutional Review Boards (IRB) or Privacy Boards, the latter a new entity created in response to the HIPAA Privacy Rule. To issue a waiver the IRB or Privacy Board determines that the use or disclosure of PHI involves no more than “minimal risk” to the privacy of individuals because: There is an adequate plan to protect health information identifiers from “improper use or disclosure”; There is an adequate plan to destroy health information identifiers at the earliest opportunity; There are written assurances that the PHI will not be reused, disclosed to or shared with any other person or entity; The research could not practicably be conducted without the waiver; The research could not practicably be conducted without access to and use of PHI. I should note that the HHS says the waiver should satisfy the criteria I’ve just listed “in whole or in part” so it appears the researcher would not have to address all of them. This appears to give us some wiggle room for allowing research use of records in our collections containing PHI. But this route is not without its difficulties. While some archival repositories have always required researchers desiring to use patient records to go through the IRB, my impression has been that general practice up to now has been for the archivist to directly deal with researcher requests under an access policy devised by the archives. Having IRBs or Privacy Boards decide which archival research projects are allowable may significantly reduce access to and use of our collections. Remember, IRBs and Privacy Boards deal with biomedical research. Will they be able to judge the merits of research by historians and other humanistic scholars? At this point it’s impossible to tell, but it’s certainly a matter for concern. At the very least, we must educate ourselves as to how these Boards work as well as educating the members of the Boards about the use of archival materials in historical research.At Columbia, fortunately, our HIPAA lawyer hopes to have me join the University’s new Privacy Board as a “member for archival requests” or if that’s not possible, make sure one of our physician-historians is appointed to the Board. Whoever it is, the Board will have someone who can explain and elucidate to the other Board member what historical research is and why it might in some cases need access to records containing PHI.Requests for waivers of authorization for research in archival records with PHI held by Archives & Special Collections at Columbia will originate with the researcher coming to the Archives but the researcher can then complete the waiver request on-line and submit it electronically to the Privacy Board. How quickly the Board will pass on such requests is impossible to say at this point. It may depend on the volume of requests the Board receives, but in any case I suspect it will be slower than the procedure we have in place now.Compared to research using the PHI of living individuals, the rules for research on PHI of decedents are simplicity itself. The Rule states that “to use or disclose PHI of the deceased for research, covered entities are not required to obtain Authorizations from the personal representative or next of kin, a waiver or an alteration of the Authorization or a data set agreement.” However, the covered entity must obtain from the researcher three things:1) Oral or written representation that the use and disclosure is solely for research on the PHI of decedents 2) Oral or written representation that the PHI for which use or disclosure is sought is necessary for the research purposes3) Documentation, at the request of the covered entity, of the death of the individuals whose PHI is sought by the researcher. This is not very different from the access policies to patient records that many of us already have in place. The chief obstacle would seem to be documentation of the death of the individual. However, note the wording of that last clause: documentation of the death of the individual is “at the request of the covered entity.” If this is saying what I think it’s saying, it’s up to us to define “documentation of death.” This would eliminate the impossible task of having the researcher prove the death of each individual whose PHI is included in a hospital case book or a physician’s correspondence and allow us to define a date before which all individuals will be presumed dead. And in fact, this is exactly what we at Columbia will be doing: for access to records containing PHI, “individuals will be presumed to be deceased 100 years after date of birth or date of record creation, whichever occurs first.” In practical terms this means that access to records in our possession that were created in 1902 or earlier will be permitted after applying to the Archives. For records less than 100 years old, the researcher will have to apply to the Privacy Board at Columbia for access - unless the researcher can provide proof of death of all the individuals whose records might be used in the course of research.Unfortunately, I wasn’t able to have our form for Access to Protected Health Information approved by our lawyer before this meeting, so you should be aware that the sample I’ve distributed is still a draft. However, I don’t imagine it will be all that much different. I should note that it is closely modeled on the form in place at the archives of our sister institution, New York Weill Cornell Medical Center and I’d like to thank Jim Gehrlich, the Cornell Medical Archivist, for allowing me to use his form as a model.One question about the Privacy Rule and records of decedents on which I have yet to get a clear answer is, does it allow us to let researchers use the names of decedents in published works? Will any historian ever again be able to write a book like Laurel Ulrich’s Midwife’s Tale? From my reading, the Privacy Rule may be, paradoxically, more lenient on this point than many of us are now, since it uses the death of the individual, not a fixed date, as the determinant for access to records. However, as of now I have not been able to get a ruling from our lawyer on whether my interpretation is correct.Another aspect of the HIPAA Privacy Rule that should inform our thinking about access to PHI is that the enforcement mechanism will be complaint-driven. That is, someone who believes his or her privacy has been violated has to initiate a complaint with the HHS’s Office of Civil Rights. While we shouldn’t be planning our HIPAA compliance on the assumption we won’t be caught if we violate it, it does appear unlikely that HHS will audit covered entities for evidence of Privacy Rule violations. In short, we shouldn’t worry about HHS investigators swooping down on us and demanding to see our reference requests. We can be a little more relaxed about research use of PHI in our collections than might seem at first to be the case.So what may be the effect of HIPAA Privacy Rule on archives in practical terms? It’s too early to tell how all the ramifications will play out, but my feeling is that we may be witnessing the emergence of a two-tier system of access to records containing PHI: older records where we can presume the individuals are deceased and access is regulated pretty much the way we’ve always done it; and more recent records where the presence of a substantial number of individuals who can be presumed to be living will take access decisions out of the hands of archivists and turn them over to IRBs or Privacy Boards. There is another two-tier system that I’m concerned may emerge in the wake of HIPAA: between the major academic medical centers who have the resources to hire experts to deal with the complications of HIPAA, have IRBs or Privacy Boards, and have a commitment to research, and smaller medical institutions or non-medical institutions that have limited or no resources to deal with these issues and are not primarily research institutions or not primarily research institutions with a focus on the history of medicine (historical societies and government archives, for instance). For these, the solution to the question of historical research using records containing PHI may be to ban it altogether: it’s not part of their mission, it’s too complicated, they don’t have the legal or archival staff to deal with it. More ominous still, I worry that the implications of the Privacy Rule will encourage institutions creating records with PHI to simply destroy them as soon as possible. Patient records in particular have always been vulnerable to destruction: they take up space and money - two things medical institutions never seem to have enough of - and after they are no longer being actively used for health care of biomedical research, administrators may find in HIPAA yet another reason to trash them. Whether the transition of the patient record from the traditional manila folder to digital form will retard or speed this destruction is too early to tell. For the same reason, collecting institutions may think twice before accepting records with PHI. On the donor side, physicians donating records may purge them of everything - even correspondence existing outside patient records - that they think are covered by the Privacy Rule. Those records with PHI now held by archival repositories are no doubt safe, but a century from now I fear the raw data needed to document the history of health care in this country may end in the 1990s. And finally, a modest proposal. To paraphrase Twain again: everybody talks about HIPAA but nobody does anything about it. The anxiety and uncertainly this legislation has raised in the historical and archival communities is in large part because we never made our concerns known to HHS. Perhaps it’s time we did. The Secretary of HHS, as I mentioned earlier, can amend HIPAA on an annual basis. This organization, the AAHM and the Society of American Archivists could - no, should - persuade the National Coordinating Committee for the Promotion of History that this is something on which they need to lobby HHS. At the very least, we might be able to obtain clarification of some of the murkier parts of HIPAA; at best, we might be able to alter or streamline some of the more burdensome parts of the legislation.Links to Department of Health and Human Services Websites:General information on the HIPAA Privacy Rule and researchHHS Office of Civil Rights site on HIPAA Privacy Rule:Full “Unofficial” Text of the Privacy Rule (Code of Federal Regulations, Part 160 and Subparts A and E, Standards for Privacy of Individually Identifiable Health Information Publications available in PDF (all from HHS web sites) Protecting Personal Health Information in Research: Understanding the HIPAA Privacy Rule (issued April 17, 2003) Summary of the HIPAA Privacy Rule Columbia University HIPAA Site Stephen Novak is the Head of Archives & Special Collections, Augustus C. Long Health Sciences Library, Columbia University
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In short, codifies many practices that were in use already. Strengthens many requirements for privacy and security, especially when transferring data. Supercedes state laws with lower privacy requirements, provides a floor for states with higher requirements Severe non-compliance penalties [fines up to $250K and/or imprisonment up to 10 years for knowing misuse of PHI] Some requirements are vague enough to be concerning to librarians PHI covers past, present and future health and payment data transmission [incl. spoken] and storage. Enforcement is complaint driven.
Licenses and Deeds of Gift
Cicense
P C
L ED
Library must comply with special terms
Publicity Rights
State statutes and common law
Commercial USE
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APRIL 30--Arnold Schwarzenegger is threatening to sue an Ohio company that is selling a bobblehead doll featuring the name and likeness of the California governor. In a blistering letter sent yesterday to the Ohio Discount Merchandise company, lawyer Martin Singer contended that Schwarzenegger was entitled to "substantial damages" for the "unauthorized commercial exploitation" of the Republican pol's image on the $19.99 doll. With the exception of movie promotion, Singer noted that Schwarzenegger does not permit the use of his likeness on commercial products in the United States. Below you'll find a copy of Singer's letter. The Schwarzenegger doll, which went on sale about a month ago, is one of several bobbleheads featuring politicians that the Ohio firm sells (John Kerry, Wesley Clark, and Howard Dean also retail for $19.99, while George W. Bush would only set you back $14.95). The bobblehead company contends that since Schwarzenegger is now an elected official, his image is public domain.
Get Publicity Permissions e.g.California Secretary of State WebsiteRegistrations www.ss.ca.gov/business/sf/sf_siisearch.htm
COPYRIGHT
Other restrictions
Privacy, Censorship and Pornography
Privacy, Censorship and Pornography
Private Facts Disclosurepublic disclosure of private fact offensive and objectionable to reasonable person
Trumped by legitimate public concern
False Light highly offensive to a reasonable person knowledge or reckless disregard as to falsity
Misappropriation
State laws: statutes and common law
Privacy Free Speech
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in 1975, the Supreme Court wrote:“ [A]lthough our decisions have without exception upheld the press' right to publish, we have emphasized each time that we were resolving this conflict only as it arose in a discrete factual context."]; Cox Broadcasting Corp. v. Cohn, supra, 420 U.S. 469 (1975)Some privacy advocates call this “THE FIRST AMENDMENT PROBLEM”
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The next privacy claim that a patron can make is known as “false light” What if you inadvertently place a picture of a great patron next to an article about horrible problems the library has with people not returning books. Would that be “false light?” Maybe, but then again, you should know that in California, the standards are pretty tough to meet. Let’s take a case in a Los Angeles court this past January. Out magazine published three photographs of an actor next to an article on a Palm Springs party that had illegal drug use and unsafe gay sexual practices. One picture showed him "naked from the waist up dancing with another man,” a picture actually taken at a different party. The magazine did print a clarification in a later issue that "the appearance of any specific individuals in those photographs is not intended to imply that they engage in any specific behaviors discussed in the article." He sued under false light, and lost. Now that we’re doing this digitally, it’s not unusual to touch up pictures. It’s okay to do this, but keep the false light claim in the back of your mind. It is a tough standard highly offensive to a reasonable person and knowledge or reckless disregard as to the falsity A few well-known universities have been caught red-handed digitally manipulating publicity photographs by adding the face of minority students to sports crowds, to make the schools look more diverse. Don’t do this.--------------------It’s a public concern according to a California ruling in San Diego in January. This includes the drug user’s name, appearance in his underwear under the influence and statements, were of legitimate public concern, we follow Shulman and conclude that as a matter of law they were. "Courts do not, and constitutionally could not, sit as superior editors of the press["Exuberant judicial blue-penciling after-the-fact would blunt the quills of even the most honorable journalists."]; --------------
Privacy … Close to ZERO
State laws: statutes and common law; Oklahoma Natural Gas v. Larue, 1998 U.S. App. LEXIS 21394 (10th Cir. 1998);
see also www.infopeople.org/training/webcasts/6-20-02_say_cheese.html
