Home | The Handling of Legal Issues  (Summary)
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Dealing with illegal acts
Many Internet users are ignorant of copyright or other relevant laws, or antagonistic towards them. It depends heavily on individual cases, but in general, if the library knew or had good reason to know that illegal activities were occuring,then they might be liable.

In general, employers are liable for illegal acts carried out by their employees, even if the illegal act was unauthorised. Thus, libraries need to be aware of what their employees are doing on the Internet as well. However, this only applies if the act was one of the type that the employee might have been expected to carry out in their normal course of duties. Thus if, for example, the employee is entitled to, and regularly does, send out e mails on behalf of the employer, then liability for any illegal e mails is likely to be borne by both the employee and the library. Similarly, if the employee is expected to use software, and uses pirate software on the employer’s machine, then both the employee and the employer are likely to be held liable. As the employer (usually) is both easier to identify and has more money to hand, the employer is likely to be targeted by the aggrieved party.

Libraries therefore need to ensure that they have in place suitable education and training procedures. They also need to have clear explicit company policies on illegal content, together with sanctions for breaches of those policies. For example, such a policy should state that patrons or employees may not send out or view illegal materials. Staff and patrons should be warned to ensure that all communications should only be sent to the intended recipients. They should be advised on procedures that they should follow if they receive an illegal or objectionable message. 

All of this also implies that library managers must act rapidly if they receive a formal complaint about illegality from a third party. They should establish the facts rapidly, and take legal advice before replying. If there appears to be any substance to the allegation at all, the library should take immediate steps to deal with the illegality, for example by deleting the offending materials and/or barring certain employees or patrons from access to equipment. Failure to do so will increase the librarian’s liability significantly. All the evidence should be copied and stored in a safe place.

The EU e-commerce Directive states that where a service is provided for the storage of information provided by a third party, Member States shall ensure that the provider is NOT liable for the content of the information stored at the request of the third party, on condition that:

• the provider does not have knowledge of the illegal activity

• if told of a claim against the content, does not have the facts or details to identify exactly what is illegal

• if, on obtaining the necessary facts, it acts rapidly to remove the offending information, or disable access to it.

Authentication and digital signatures
It is clear that librarians will need to learn about cryptography and its implications. At present few public libraries have experience of using it, yet it is likely that its use will become ubiquitous in the EU Member States in the next few years. Public librarians need to identify the key technical, management and legal issues associated with it. Public libraries enjoy a considerable degree of trust and goodwill amongst citizens. There is a clear market opportunity for public libraries to become Trusted Third Parties (TTP), acting on behalf of organisations by keeping the keys intact should national Governments decide to insist that PKI keys must be deposited with a TTP before they can be used. This is a rare case where public libraries can profitably exploit a market niche made possible by changes to the regulatory environment for Information technology applications. (See also personalisation.)

Authentication is important for public libraries because many electronic publishers will not licence their materials to libraries without assurances that only authenticated users will be allowed to access the materials. Electronic publishers appear to be content with the level of authentication offered by ATHENS, but may require higher standards in the future. The problem is particularly acute for distance users, who wish to access materials from a public library remotely and must be properly authenticated. One reason why electronic publishers are currently reluctant to permit distance users access is because of fears about authentication; so high standards will assist in the development of large-scale digital resources in public libraries. 

Filtering software
Although most of the cases involving disputes between public libraries and members of the public over the use, or non-use of filtering software have been in the USA, there have been a few cases in Europe as well. It is important that public libraries are not thrown into a short-sighted response in order to please a vociferous minority. There is no filtering software that currently comes anywhere close to providing the sort of protection that concerned citizens desire, whilst not eliminating innocent materials. In any case, public libraries have a duty to provide open access to materials required by citizens, and have traditionally resisted calls for censorship. There are a number of strategies available other than the use of filtering softwares:

Acceptable Use Policies: patrons can be barred from using library equipment if they fail to abide by the rules. (See also personalisation)

A requirement that all parents sign a declaration that they understand that their children may gain access to inappropriate materials whilst using library equipment and that they accept this risk. If parents refuse to sign, their children are not allowed access to the machines. Use of ratings systems such as the well-known PICS system, to decide what is accessible. Warning users that their use of the Internet will be checked, and getting them to agree to this (as is required under Data Protection legislation)

IPR in metadata see also resource description
The principal issues here are the training of library staff in copyright and database right law, so that they fully understand their rights and responsibilities under those laws. There is a particularly difficult problem associated with the co-operative creation of metadata by a number of libraries. This type of endeavour is becoming increasingly common, and is often started without a clear understanding of the implications. The ownership of such a jointly developed collection rests with the various partner institutions. This means that no one library can exploit the materials without the agreement of all the other partners. In such cases, it is best to agree a partnership agreement before the co-operative work starts. This, too, is a matter of education, but this time of the managers of such projects.

Another major issue is protecting the rights to metadata that has been created by the library. Depending on the importance and value of the metadata collection, this may require an active policy of policing the Internet. A number of commercial services offer to do this for organisations, for a fee. In most cases, it is likely that the metadata is not sufficiently valuable or important to justify such an approach, but it must then be recognised that by placing the metadata in some public domain, the library risks third parties making use of such metadata for its own ends. 

There has been little work on developing model contracts for dealing with IPR in metadata, though some preliminary research to assess the problem is underway. At present, there is no clear guidance therefore to be offered to public libraries. See metadata. 

FUTURE AGENDA

It is clear that the issues raised need to be addressed in a variety of ways. These can be summarised as follows:

• There is a need to educate library staff, particularly in the fields of data protection, encryption technology and policy, PKI for authentication and digital signatures, e-commerce Directives and their implications, the alternatives to filtering software, and IPR in metadata. The education needs to be both at a technical level, so they are briefed regarding what is now possible, at a social level, so they know about what is popular and what is likely to become popular, and also the legal level, regarding what can, and cannot be done and what the rights and responsibilities of library staff are.

• There is a need to lobby Governments to ensure that changes to legislation take into account library needs.

• Library managers need to become more aware of the many liability issues that arise from patrons’ and employees’ use of the new technologies.

• Public librarians need to maintain awareness of all initiatives relevant to the protection of minors and other vulnerable citizens from harmful Internet content. These initiatives may be new softwares, new legislation, new Codes of Practice, and new classification systems. 

• There is a need to consider market opportunities raised by these developments, especially as Trusted Third Parties. Public libraries should exploit the great goodwill and esteem in which they are held by both Governments and public.

• The American Library Association has developed useful guidelines regarding filtering softwares and policies that could be adapted for use by European public libraries.

• There is a need to develop model contracts for joint development work that involves creation of metadata.

• There is a need to establish best practice guidelines in many of these areas. Paul Sturges is developing a set of such Guidelines for public libraries on behalf of the Council of Europe. These will form an excellent starting point.

• Public libraries should exchange examples of best practice in all these areas, prioritising filtering software in the first instance.

• Library school courses should cover all the issues raised in this Guideline.

• EBLIDA or other responsible organisations should continue to organise conferences and seminars in the field, and publish examples of best practice from Europe and the rest of the world. In this way, public libraries in the EU will follow the best practices elsewhere. However, it is hoped that many of the most innovative ideas will come from within the EU, and it will be a case of the rest of the world copying the EU rather than the other way around.

• EBLIDA or other responsible organisations should continue to provide a referral and updating service on new developments in these fields.

The most important thing to note is that technical and commercial developments are extremely rapid and that therefore these efforts should be reviewed frequently.

The best way forward is for EBLIDA or individual library associations to develop the necessary codes of practice and/or to lobby Governments as appropriate. In some areas, research is needed and funding agencies should be approached, but in the majority of areas, it is a case of developing and learning from best practice. The research for this paper demonstrated that virtually nothing has been published by public libraries on good practice in these areas. Perhaps the most important message, therefore, is to encourage public libraries that are undertaking initiatives or that have developed codes of practice to share them widely.

Home | The Handling of Legal Issues  (Summary)
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