v32#4 Legally Speaking — Issues for Libraries Regarding COVID-19

by | Sep 30, 2020 | 0 comments

By: Anthony Paganelli  (Western Kentucky University) 

As of July 1, the United States has surpassed 125,000 deaths related to the coronavirus and medical experts are still uncertain of a second wave that may bring even more deaths globally.  The uncertainty has many library leaders concerned and frustrated about planning for an unknown.  Currently, the main concern is the safety of employees and patrons, which has become the standard business practice of most businesses during the coronavirus pandemic. 

Aside from the health concerns, library leaders are watching the economy as they attempt to plan with an already flat or decreased budget.  Early speculation was identified by Karunakar and Sarkar that polled 41 economists from March 16-19 to gain a perspective on the economic impact of the COVID-19 pandemic.  Two-thirds of the economists believed the economy was already in a recession. 

Ethan Harris, the head of global economics research at the Bank of America Merrill Lynch Global stated, “We now expect COVID-19 to cause a global recession in 2020, of similar magnitude to the recessions of 1982 and 2009” (Karunakar & Sarkar, 2020).  The North American economist at Pacific Investment Management Company, Tiffany Wilding added, “The U.S. economy is going to have a shock from this coronavirus and I think that there’s still a lot of uncertainty around the size and the depth and the prolonged period of the shock” (Karuankar & Sarkar, 2020). 

The loss of revenue to local, state, and federal governments will cause a significant decrease in library budgets for not only this year, but 2021 as well.  As similar to the 2008 recession, libraries will face flat or reduced budgets, a decrease in donations, and other means of financial support that will impact libraries over the next year or longer.  Of course, the reduction in funding means the possibility of reductions in staff, resources, and services. 

Higher Education

According to the Moody’s Investors website that polled university presidents stated that higher education will have low enrollments (including international students), reduction in revenue, other higher educational services (catering, athletics, and residential facilities) will have lower budgets, endowments and donations will decline, and layoffs and furloughs will be implemented.  Universities stand to lose a lot of revenue during the COVID-19 pandemic, which some experts have stated a few smaller institutions may have to close. 

More added pressure to higher education is the recent class action lawsuits against higher education by students demanding refunds from the spring semester that was cut short due to closures and institutions that are moving to all online courses in the fall.  Students also stated in the lawsuit that online classes are not the same quality as in-person classes and they are not receiving the same services. 

More than 4,000 higher educational institutions closed in the United States for COVID-19 that affected nearly 25 million students.  The class action lawsuits involved over 100 universities that includes the California State University System, Cornell University, Michigan State University, University of Miami, and Washington University in St. Louis

The refund of tuition and fees appear to be straightforward in the lawsuit, however the response to the quality of online learning will be complicated for the courts to decide when reviewing these claims.  Cappellino (2020) noted that the students’ lawsuit hinges on a breach of contract, which there has to be a concrete contract stipulating that the university is providing only in-person classes.  Most of the contractual agreement of in-person class offerings will rely on the university’s marketing services during recruitment or during enrollment where it was stipulated that all classes would be offered in-person. 

Universities will have legal support against the lawsuit based on the main contractual obligation of the institution, which is to provide an education, whether in-person or online.  As to the actual quality of education, the courts will have to define any differences between the quality of in-person and online education.  Universities can also utilize the force majeure clause should the quality of online education be in question.  The force majeure clause provides the university excuse from the performance that arise due to an extreme event, such as a pandemic that forced classes to be provided online.  

The impact of the courts’ decision to determine whether in-person and online classes are different will alter many institutions that provide online learning.  Approximately, 80 percent of online students are enrolled at for-profit universities.  If the courts determine that online education is not equivalent to in-person classes, then these online classes and programs could be considered diminished in quality.  The courts’ decision could change how future employers review students’ education should the courts decide that the quality of online education is unequal to in-person classes.  This would also affect numerous universities across the U.S. offering online classes that includes the elite universities, such as Harvard and Stanford

Academic Libraries 

The higher education issues will affect the academic libraries in regards to budgets.  Unfortunately, many academic libraries have not recovered financially from the 2008 recession.  McKenzie (2020) noted that pre-pandemic academic libraries were already reducing journal subscriptions and opting out of the bundled big deal agreements with publishers due to financial hardships. 

The University Librarian at the University of North Carolina – Chapel Hill, Elaine Westbrooks, stated that their library leaders had already been working to reduce subscriptions before the pandemic (McKenzie, 2020).  Westbrooks also Tweeted, “Once we get through this pandemic, higher education will have even more financial constraints.  And we will not be in a position to pay publishers millions of dollars for research that is behind paywalls.”

During the pandemic, many academic libraries will be cancelling these big deals and searching for other ways to provide information to their faculty and students.  Mary Lee Kennedy, Executive Director of the Association of Research Libraries stated, “Librarians are working to help researchers quickly access paywalled research articles” (McKenzie, 2020).  A resource that researchers, faculty, and students are using is Unpaywall, which is an open database of scholarly articles.  In addition, the nonprofit library collaborative organization HathiTrust Digital Library have provided open access to books during the pandemic. 

Heather Piwowar, Jason Priem, and Richard Orr (2019) released an analysis regarding the increase usage of open access articles.  The analysis noted that in 2019 31% of open access journal articles were available and 52% of the articles viewed were open access.  In addition, the anticipated growth of open access journal articles by 2025 will be at least 44% open access available and 70% of the journal articles viewed will be open access. 

While academic library leaders seek ways to provide resources to their faculty and students, the pandemic has brought to the foreground the practice of “Fair Use.”  Academic libraries scrambled to provide digital content for faculty and students as thousands of universities and colleges transitioned to online courses in March.  In order to continue to provide digital resources, academic libraries will rely heavily on fair use. 

Even though publishers did offer some copyright relief, the relief was only temporary.  As noted on the Association of American Publishers’ webpage for COVID-19 response, the numerous publishers that offered copyright relief established a timeframe for the copyright relief.  Those timeframes varied from May 31 to July 31. 

Of course, thousands of universities are still unsure how they will offer courses in the fall, which puts academic libraries in a difficult situation regarding the continued practice of fair use.  The dean of the Clemson University Libraries, Christopher Cox (2020) noted that the pandemic will force academic librarians to better educate faculty on copyright laws and fair use, as well as encouraging library leaders to “lobby for more flexible copyright laws.”

K-12 School Libraries

The K-12 schools witnessed a major issue transitioning from in-person to the Non Traditional Instruction model of online teaching.  The issue was that nearly 16 million students in the United States lived in households without adequate Internet access or some form of computer device, according to the Common Sense report.

As K-12 schools continue to seek funding to narrow the digital divide for their students, school libraries are contending with copyright laws during the pandemic.  As more digital content is moved to online platforms, school librarians are working within the 2002 TEACH Act that was created to provide relief from copyright laws for educational online content use, which is similar to the practice of academic libraries. 

Teachers can use copyrighted material within the copyright laws online that they would use in the face-to-face classroom.  According to the attorney-advisor in the Office of the General Counsel, David Welkowitz, the TEACH Act “imposes a number of requirements on distance learning that do not apply to face-to-face teaching.” 

For instance, school librarians and teachers can read aloud to students in the classroom from a book purchased by the school, however copyright laws are complicated when reading aloud to students online.  The School Library Journal provided information for teachers in March on ways teachers could still read aloud to their students online.  For example, if a teacher wanted to read from a school purchased book online, they could read aloud using various platforms as long as the readings were not recorded or if the readings were live streamed, the stream could only be online for 24 hours. 

Along with numerous publishers that reduced copyright restrictions for school libraries, school librarians also received support from several authors.  Sam Northern posted a blog about several authors that sent out messages via social media after receiving numerous requests to read their works aloud online during the pandemic.  Northern noted that several authors were allowing permission for teachers to read aloud their works online during the pandemic that included Drew Daywalt and Peter H. Reynolds.  However, similar to academic libraries, the K-12 relief was temporary and school librarians will continue to navigate copyright laws to support their students and faculty.

Public Libraries

The public libraries are the hub of our communities.  They provide much more than educational resources and services to their citizens.  Closing the public libraries in many of these communities affected the patrons they served through the physical library before the pandemic.  However, the public libraries rose to the challenge and continue to assist their patrons with quality services and resources.  Similar to academic and K-12 school libraries, the majority of their resources and services transitioned online. 

The most notable service public libraries witnessed during the closings was the increased usage of eBooks.  The Executive Director for the District of Columbia Public Libraries, Richard Reyes-Gavilan stated, “We’ve had over 300,000 [e]books borrowed since mid-March, which is astounding considering that our collections are limited” (Wilburn, 2020). 

Due to this high demand of eBook usage, public libraries are faced with financial and legal constraints in providing eBooks.  Public libraries relied heavily on print books and the first sale doctrine of the 17 U.S.C. § 109 to provide an economical resource for their patrons pre-pandemic.  With the move to more eBooks during the pandemic, public libraries will be committed to licensing agreements with eBook publishers.  The purchase of eBooks for libraries do not fall under the first sale doctrine;  instead, libraries enter licensing agreements. 

Publishers contend that eBooks are easily accessible to download and viewed through several types of devices, therefore eBook lending would impact their retail sales.  Based on these licensing agreement, libraries have to purchase licenses and adhere to the publishers licensing agreements.  These agreements can restrict libraries to single users, the number of check outs before the eBook has to be repurchased, and the agreements with the libraries can expire based on the common practice of two-year terms.

Often these agreements are expensive for public libraries that are also facing issues of declining budgets and donations during the pandemic.  The Congressional Research Services (2020) stated, “For one publisher, an individual eBook copy costs $14.99;  a library copy costs $84.”  These exclusive rights by publishers have caused issues for libraries as noted with Macmillan Publishers that implemented a policy to make libraries wait the first eight weeks to get a license on new title releases in 2019.  However, this embargo was eventually lifted on March 20, 2020.  Yet, public libraries are struggling financially to enter these licensing agreements, which may raise legal issues in the future regarding the practice of eBook lending as legislatures review these practices. 

Publishers

While the publishers were providing relief for libraries during the early transition for libraries to online content, publishers faced a significant challenge with the online library, Internet Archive.  The Internet Archive allows users to check out digital copies of physical books owned by the Internet Archive.  However, on March 24, 2020, the Internet Archive allowed “physical scans to be checked out by any number of users” (CRS, 2020).  This was implemented as a “national emergency” due to the closing of schools.  They created the National Emergency Library.

On June 1, 2020, a copyright infringement lawsuit was filed in the U.S. District Court Southern District of New York by Hachette Book Group, Inc., Harper Collins Publishers, John Wiley & Sons, Inc., and Penguin Random House against the Internet Archive organization.  Due to the lawsuit, the National Emergency Library returned to their limited access on June 11, 2020.  This lawsuit may bring more issues to libraries as the courts determine how eBooks are provided to libraries. 

The COVID-19 pandemic has changed how libraries provide resources and services.  As libraries emerge from this pandemic, several legal issues will be brought to the foreground as fair use will continue to be stretched as schools utilize more online resources, the first sale doctrine in regards to eBook lending will continue to be an issue, and the need for open access of information will continue to challenge copyright laws. 

References

Anderson, G.  (2020).  Students turn to courts for refund.  Insider Higher Education.  Retrieved from https://www.insidehighered.com/news/2020/04/20/students-sue-universities-tuition-and-fee-refunds.

Ashworth, B.  (2020).  COVID-19’s impact on libraries goes beyond books.  Wiredhttps://www.wired.com/story/covid-19-libraries-impact-goes-beyond-books/

Cappellino, A.  (2020).  More than 70 universities sued for refunds following COVID-19 closures.  Expert Institute.  Retrieved from https://www.expertinstitute.com/resources/insights/universities-sued-for-covid-19-refunds-following-campus-closures/.

Common Sense.  (2020).  Closing the K-12 digital divide in the age of distance learning.  Retrieved from https://www.commonsensemedia.org/kids-action/publications/closing-the-k-12-digital-divide-in-the-age-of-distance-learning.

Congressional Research Service (CRS).  (2020).  COVID-19 and libraries: E-Books and Intellectual Property Issues.  Legal Sidebar.  Retrieved from https://crsreports.congress.gov/product/pdf/LSB/LSB10453.

Cox, C.  (2020).  Changed, changed utterly.  Inside Higher Education.  Retrieved from https://www.insidehighered.com/views/2020/06/05/academic-libraries-will-change-significant-ways-result-pandemic-opinion.

Karuankar, R. and Sarkar, S.  (2020).  Global Economy: Poll global economy already in recession.  Reuters.  Retrieved from https://de.reuters.com/article/health-coronavirus-global-economy/poll-global-economy-already-in-recession-on-coronavirus-devastation-idUSL4N2BC3BN.

McKenzie, L.  (2020).  Libraries brace for budget cuts.  Insiderhighered.com.  Retrieved from https://www.insidehighered.com/news/2020/04/17/college-librarians-prepare-looming-budget-cuts-and-journal-subscriptions-could-be.

Moody.  (2020).  COVID-19 Puts pressure on higher education finances.  Retrieved from https://www.moodys.com/research/Moodys-Covid-19-puts-pressure-on-higher-education-finances–PBC_1222963.

Newton, D.  (2020).  There’s a billion dollar monster hiding in those COVID-19 student class-action lawsuits.  Forbes.  Retrieved from https://www.forbes.com/sites/dereknewton/2020/05/15/theres-a-billion-dollar-monster-hiding-in-those-student-class-action-lawsuits/#2a343e3a6fd0.

Northern, S.  (2020).  Distance read-alouds.  Journal of the American Association of School Librarians Knowledge Quest.  Retrieved from https://knowledgequest.aasl.org/distance-read-alouds/.

Piwowar, H., Priem, J., and Orr, R.  (2019).  The future of OA: A large-scale analysis projecting open access publication and readership.  Retrieved from https://www.biorxiv.org/content/biorxiv/early/2019/10/09/795310.full.pdf.

Welkowitz, D.  (2020).  Teaching from a distance and copyright considerations.  Library of Congress.  Retrieved from https://blogs.loc.gov/copyright/2020/03/teaching-from-a-distance-and-copyright-considerations/.

Wilburn, T.  (2020).  Libraries are dealing with new demand for books and services during the pandemic.  NPR.  Retrieved from https://www.npr.org/2020/06/16/877651001/libraries-are-dealing-with-new-demand-for-books-and-services-during-the-pandemic.  

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