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Libraries, Museums, and Archives: Legal Issues and Ethical Challenges in the New Information Era, edited by Tomas A. Lipinski, 2002

Part 1: Working with the collection

Chapter 1, Deeds of Gift: caressing the hand that feeds, Robert J. Vanni

  • Objective of deed of gift
    • To identify the donor
    • To identify the nature of the gift
    • To identify some demands or restrictions placed by the donor
    • To create a historical record of the transaction that can be referred to in "perpetuity"
  • The Donor
    • It is important to identify the donor properly -- this is especially important when differentiating between individuals and these people as representatives of an estate, foundation, executor of the Will, etc.
    • Different categories of donors raise questions relating to title, authority to make the gift, and evidence of that authority
  • WHEREAS clauses
    • these introductory clauses help explain history of a transaction and intentions of the various parties involved
    • Defined terms might be used in this section to identify how the donor or collection will be referred to throughout the document
  • Declaration of the gift
    • donor states interest in teh material being donated -- usually "all my right, title and interest" (fractional interest may be given here which can cause stickiness in terms of tax deductions, etc.)
    • in this section it may be useful to state when the institution becomes the owner of the materials
  • Reservation of interests
    • A Donor often retain intellectual property rights for herself, her family, or her heirs
    • If intellectual property rights are to be part of the donation, this should be specifically stated
  • Naming the collection
    • It is useful to have the donor agree to how the collection will be referred to in the finding aid
  • Restrictions on access
    • donor may wish to restrict the collection, this should be avoided if possible to make the collection as accessible as possible, if it is impossible to avoid some restriction, make sure it is carefully worded and negotiated
  • The institution's reservation of rights
    • it is important to make clear the institution's rights in regard to the donated materials -- this might include copyright provisions, right to restrict access on certain materials
  • Administering the collection
    • it is imperative to know whom a researcher or the institution should go to in order to receive permission to reproduce materials when the donor retains intellectual property rights
    • if there is income potential for the collection, the donor will require the income earned to be used for the benefit of the collection
    • in some cases, donors will request annual reports of usage, maintenance, and condition of the collection
  • Representations and warranties
    • institutions should try to limit contest with third parties by using statement of representation and warranties that might include:
      • if donor is an individual, she is sole owner of material being donated
      • there are no other claims against the materials
      • if donor is a corporation, it is validly formed and has obtained all necessary corporate actions and approvals to make the donation
  • Miscellaneous provisions
    • to help with the future administration of the collection, include:
      • a statement that the deed of gift includes the entire agreement between the parties
      • a selection of a jurisdiction and law under which disputes will be resolved
      • addresses for notice to parties
  • Formalities of execution
    • important to have a date when deed of gift is effective
    • useful to have a notarization page
  • Pledge agreements and deposit agreements
    • associated with deeds of gift, pledge agreement is a promise to make a gift and deposit agreements are accepted with the hope that materials will eventually be donated to the institution
  • Charitable tax deduction considerations concerning gifts-in-kind
    • Form 8283, qualified appraisal, appraisal fee
  • This chapter ends with a sample letter and sample deeds of gift

Chapter 2: The Appraiser and the appraisal: what makes a book valuable? Andrew M. McLean

  • Three kinds of appraisals
    • first, one dealer does for himself when buying inventory for resale
    • second, value of items at “fair market value”
    • third, done for insurance purposes
  • Old is not necessarily valuable: age often has little to do with value
  • What makes one book different from another?
    • paper and binding
    • limited printings
    • illustrations
    • signed books, presentation copies, and association copies
    • first editions and modern first editions
    • condition
  • Finding an Appraiser
    • use appraisal organizations as guide (such as Appraisal Association of America, American Society of Appraisers, etc.)
  • appraisal fees and appraiser’s liability
    • appraiser should charge per diem or hourly rate and not a percentage of the appraised value
  • Resources for appraising book values
    • best guides to fair market value are dealer catalogs and current auction prices

Chapter 3: Tort theory in library, museum and archival collections, materials, exhibits, and displays: rights of privacy and publicity in personal information and persona, Tomas A. Lipinski

  • Right of privacy
    • includes 4 grounds for action: intrusion into seclusion, public disclosure of private facts, false light, and (mis)appropriation
  • Right of publicity
    • triggered when the name, likeness, or persona of a person is unauthorized and used and causes commercial harm

Chapter 4: Censorship and controversial materials in museums, libraries, and archives, Judith F. Krug

  • Libraries serve all people on the basis of “intellectual freedom”
  • ability to express and idea or belief is meaningless unless there is a commitment to the right of unrestricted access to information and ideas

Part 2: Special issues in museum collection management

Chapter 5: Legal and ethical foundations of museum collecting policies, Marie C. Malaro

  • The law as a helpful guide
  • Three broad legal principles trustees and senior staff need to understand
    • concept of a trust organization
      • a party is charged with the management of property that must be administered for the benefit of others
      • important to know who the beneficiaries are
    • basic duties the law imposes on those who run trust organizations
      • duty of care
      • duty of loyalty
      • duty of obedience
    • importance of good procedure when making policy
      • trustees need to act in good faith and with reasonable care when making policy decisions
      • adequate information about matter at issue should be available to trustees
      • trustees should discuss and vote on the matter
      • decision of the trustees should be reasonably supported by the information available to them
  • Ethical codes as helpful guides
    • difference between an ethical standard and a legal standard
      • ethical standard: put forth by a profession that establishes what is considered essential in upholding the integrity of the profession – usually these codes have no enforcement mechanism and depend on self-enforcement
      • legal standard: law requires conduct that permits us to live in society without undue harassment – law is not something we can choose to ignore
  • Effective use of ethical codes
    • if made integral to museum’s decision making process, offers layer of positive guidance

Chapter 6: Collections management: hypothetical cases, acquisitions, deaccessions, and loans, Ildiko Pogany DeAngelis

  • This chapter uses hypothetical situations in museums as examples
  • Main purpose is to point out the following conclusions:
    • How a museum goes about its core work should be a matter of written policy
    • Governing board of a museum has the power and duty to establish and oversee the effectiveness of policy
    • policy must be in accord with the mission of the museum

Part 3: Working with patrons

Chapter 7: Legal issues involved in the privacy rights of patrons in ‘public’ libraries and archives, Tomas Lipinski

  • Protecting the privacy of library patrons under state laws
    • most statutes cover only public libraries
  • Rights of students in educational library and archive settings
    • FERPA (Family Educational Rights and Privacy Act of 1974) creates additional privacy concerns about student information
  • Electronic tracking, data collection and communication
    • collecting information from visitors
    • CPPPEA (Children’s Privacy Protection and Parental Empowerment Act of 1998) requires that a website collecting information from children have privacy notices to indicate what information is collected, how it is used, if it will be released to third parties

Chapter 8: Welcome to . . . the legal responsibility to offer accessible electronic information to patrons with disabilities, Mary Minow

  • "As respected institutions with both a mission and legal obligation to provide patrons equal access to their information services regardless of disability, libraries, museums and archives should be at the forefront in adopting universal design standards when purchasing and creating electronic information resources" (p. 115)
  • Background facts and legal doctrines
    • Some form of disability will affect 1 in 5 U.S. citizens in her lifetime
    • "Information technology is generally considered 'accessible' if it can be used in a variety of ways that do not depend on a single sense or ability"
    • Examples of accessible technologies
      • CD-ROM that can be read with synthesized voices
      • web pages that use alternative text
    • Disability laws
      • Rehabilitation Act of 1973
        • All libraries, museums, and archives that are part of federal agencies are subject to this act
        • Section 504, way of ADA title II, extends to all state and local government entities
      • Architechtural Barriers Act of 1968
      • Education for all Handicapped Children Act of 1975
      • Telecommunications for the Disabled Act of 1982
      • Americans with Disabilities Act (ADA), 1990
        • Titles II and III have most impact on public and private entities
    • Heightened Obligations: New acquisitions and creating digital information
      • electronic information is treated differently depending on when it was purchased and whether or not the institution had any control over its accessibility, i.e. older materials may not be accessible because technology didn't yet exist, whereas newer materials are subject to more scrutiny
        • expectations of accessibility of digital materials is especially high

Chapter 9: Seven levels of safety: protecting people in public buildings, Bruce A. Shuman

  • Public building as a potentially dangerous place
    • physical aspects of security in public buildings
    • threatening, mentally troubled, and occasionally violent people enter libraries and museums everyday b/c it is easy to get in
  • Seven levels of security
    • Level 1: Perfect security
      • the unattainable ideal
    • Level 2: Extremely good security
    • Level 3: Very good security
    • Level 4: Commendable (good) security
    • Level 5: So-so security
    • Level 6: Token security (better than nothing)
    • Level 7: Total vulnerability
      • no security whatsoever
  • Preventing violence in public buildings
    • Preparation: before problems occur
      • designate a staff member 'building security officer'
      • maintain good relations with local police
      • monitor crime patterns in the community
      • perform building security audit
      • create comprehensive building security policy
      • make public aware that threats, violence, and verbal abuse won't be tolerated
      • purchase security equipment (e.g. surveillance cameras)
      • provide telephones and lists of emergency numbers
      • hire trained secuity guards
      • emphasize to staff importance of security
      • have on-duty staff work in pairs or teams
      • provide staff training in security precautions
      • establish special code words
      • have drills
    • Action: staff response and reaction
      • most important goal is for no one to get hurt
      • isolate problem patron from others in the room
      • calm voice may diffuse situation
      • be able to differentiate between annoying problems and dangerous ones
      • apply and enforce all rules fairly, firmly, consistently
      • treat homeless people as you would others
      • rely on what has been learned from drills when dealing w/ actual problem
      • don't be affraid to 'bother' the police

Part 4: Ethical challenges

Chapter 10: The fight of the century? Information ethics versus e-commerce, Marsha Woodbury

  • Main areas of concern about information
    • privacy, accuracy, security/access, and ownership
    • "to maintain trust and a common morality, we protect information" p. 181
  • E-commnerce
    • internet is making identity theft a signature crime of the digital era
    • self-regulation is our only choice ethical handling of our information by e-commerce businesses
  • The Future
    • what to do about loss of privacy by way of technology
      • be informed
      • use encryption
      • support legislation to protect privacy
      • use an anonymous server to send email
      • use cookie cutter software to select cookies you want stored on hard drive

Chapter 11: Information ethics: its demarcation and application, Johannes J. Britz

  • What is ethics?
    • branch of philosophy that deals with human conduct and character; divided into descriptive ethics, metaethics, and normative ethics
    • normative ethics is the subject of this chapter; i.e. Is the action I took fair? What would be the right thing to do?
  • Main ethical issues confronting the information professional
    • right of access to information
    • right to intellectual property
    • quality of information
    • right to privacy
  • Applicable ethical principles and norms for the information professional
    • principle of human autonomy and respect for a person: every human being has fundamental right to self-determination
    • principle of impossibility: under certain conditions rights and obligations cannot be exercised
    • principle of relevant difference: rights and duties are exercised and fulfilled in specific contexts
    • principle of best action: obligation to handle information in best possible manner
    • principle of priority: rights may be prioritized
    • principle of equality and justice: all persons must be treated as equals
  • Besides these basic principles, the following ethical norms can be distinguished:
    • Justice
    • Freedom
    • Truth
  • Practical application of the ethical decision-making process: users' right to privacy
    • main ethical issues
      • deciding which categories of personal and private information the information professional is entitled to gather
      • confidential treatment of such information
      • accuracy of information
      • how this information may be used
      • use and distribution of this information
      • gaining access to this information w/out the person being aware of it

Chapter 12: Organizing ethics in archives, museums, and libraries: challenges and strategies, Elizabeth A. Buchanan

  • Overview of Information Ethics
    • Important issues in ethics for museums
      • conflicts of interest
      • antitrust issues
      • political contributions
      • cultural sensitivity
      • indigenous knowledge/property issues
      • consumerism/commercialism
      • representational politics
      • responsibility to protect social good
      • integrity in acquiring exhibits and collections
      • preservation or distortion of the historical record
    • Archives
      • protection of privacy
      • public right to access
      • preservation and conservation
      • ownership
      • integrity in acquiring exhibits and collections
      • representational politics
      • indigenous knowledge and property issues
      • public funding of private collections
      • issues surrounding digitization
      • copyright issues
      • consumerism/commercialism
      • preservation or distortion of the historical record
    • Libraries
      • intellectual freedom issues
      • access rights and privleges
      • ownership
      • censorship
      • public funding issues
      • consumerism/commercialism
      • selection issues
      • copyright issues
      • filtering
  • Codes of ethics
    • must prvide guidelines for 'justice, beneficence, nonmaleficence, independence, objectivity, professionalism'
    • must not be prescriptive but must demonstrate guiding ethical principles and why they are so

Part 5: Copyright and other ownership issues

Chapter 13: Copyright for libraries, museums, and archives: the basics and beyond, Shelly Warwick

  • What is copyright
    • 1st view: copyright is that it is a 'natural' right based either labor or personality
    • 2nd view: copyright is a state-created right that is part of a policy to achieve specific goals
    • In the U.S. copyright has traditionally been considered an incentive to encourage authors to create so that the nation as a whole can benefit
  • Current U.S. Copyright Law
    • Recent amendments to the Copyright Act
      • No electronic Theft Act of 1997: provided criminal penalties for cetain levels of noncommercial copying
      • Sonny Bono Copyright Term Extension Act of 1998: added 20 years to the term of copyright protection
      • Digital Millenium Copyright Act of 1998: established criminal penalties for circumvention of technological protections used by copyright owners
  • Copyright overview
    • protects original works of authorship fixed in any tangible medium expression for a term of the life of the author plus 70 years with adjustments for anonymous works, pseudonymous works, and works for hire
    • copyright woners are granted exculsive rights to
      • reproduce
      • prepare derivative works
      • distribute copies to the public by sale
      • perform the work publicly
      • display the work publicly
  • Limitations on the rights of copyright owners
    • First sale: allows libraries to circulate materials
    • Fair use: allows reproduction of protected works
  • Exemptions for libraries and archives
    • make it possible to provide copies of out-of-print material to library users, make up to 3 facsimile or digital copies for the purpose of preservation, and provide interlibrary loans

Chapter 14: Copyright protection and technological reform of library services: digital change, practical applications, and congressional action, Dwayne K. Buttler and Kenneth D. Crews

  • Section 108 of the Copyright Act
    • has been part of the act since it was last fully revised in 1976
    • statute allows libraries to make copies of certain works for specified purposes
    • generally allows an eligible library to reproduce and distribute works for purposes such as preservation of materials, use in an individual's private study, and interlibrary loan
  • Ground rules of section 108
    • library cannot copy or distribute copies for the purpose of 'direct of indirect commercial advantage'
    • collections of the library must be open to the public
    • copy or distribution of the work must include a 'notice' of copyright
    • library may make only single copies on 'isolated and unrelated' occasions and may not make multiple copies or engage in 'systematic reproduction or distribution of single or multiple copies'

Chapter 15: Legal-technological regulation of information access, David A. Rice

  • Intellectual property foundations
    • Neither patent nor copyright protect abstract ideas or fundamental principles
  • Techonological regulation of use and access
    • World Intellectual Property Organizaton (WIPO) adopted Copyright Treaty and Performances and Phonograms Treaty in 1996
    • In response, the United States implemented the above treaties into the Digital Millennium Copyright Act of 1988 (DMCA)

Part 6: Implementation of legal and ethical concepts

Chapter 16: Getting started: legal and ethical resources, Jane Colwin

  • This chapter is basically a list of primary and secondary sources to consult divided into the following structure:
    • Primary Federal Legal Materials
      • Legislative
      • Administrative
      • Judicial
    • Secondary Legal Materials
      • Americans with disabilities act (ADA)
      • Appraisals
      • Art Law
      • Copyright/Fair use
      • Ethics
      • Information technology
      • Legal periodical resources
      • Legal web sites
      • Library-related legal issues
      • Licensing
      • Museums

Chapter 17: Designing, drafting, and implementing new policies, Claire Weber

  • Considerations in designing a policy
    • Identify the problem
    • Consider whether the problem can be solved without changing policy
    • Check for already-written policy in other organizations
  • Drafting a policy
    • Design and outline the policy
    • Drafting is a job for one person
    • Follow appropriate techniques to facilitate drafting by one person
    • Avoid having pride of authorship
    • Follow well-established sequence of sections in a new policy
  • Definitions
    • Know when to define a term
    • Remember that definitions are only descriptions
    • Don't define the obvious
    • Use commonly understood words in definitions
    • Avoid circular definitions
    • List definitions alphabetically
    • Use each defined term
  • General drafting rules
    • Write in the singular
    • Divide the policy into numbered sections and subsections
    • Include title and subtitle phrases when appropriate
    • Allow for later additions
    • Use consistent terminology

Chapter 18: Agents of Change: Planning, communication, and implementation strategies, Thomas D. Walker

  • Goals and coalitions
    • it is useful to be aware of various coalitions before attempting to institute changes on the macro or micro level
  • Corporate Culture and change
    • institution's mission may be best place to address ethical considerations
    • changes to formal statements of policies and procedures may have more immediate effect on daily activities
    • improving formal channels of communication
    • training and continuing education
    • reward/punishment system may encourage and enforce ethical behavior

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