Law and Order
Law and Order
Archivists and librarians have always been concerned about the laws affecting their work and that of their patrons. Some issues, such as intellectual property, have been plagued by conflicting and confusing advice or, even worse, advice that suggests that one will know that they have stepped over some boundary when they are sued or threatened with litigation. It’s a crazy world out there.
A good reference on law has been written by Bryan M. Carson, a working librarian with a law degree and published in early 2007 by Scarecrow Press with the vanilla, straightforward title of The Law of Libraries and Archives. This work of nearly 400 pages will look good on one’s basic reference shelf. Striving to make the law understandable for non-lawyers, Carson reviews contracts, copyright and patent and trademark law, fair use and intellectual property, copyright issues in the classroom, search warrants and library records, Internet use policies, and how to read a legal citation.
Every legal matter is given a nice review, with ample legal references to case law and legal scholarship. For example, when Carson considers fair use and intellectual property for unpublished manuscripts (pp. 100-105), he provides a useful description of the Copyright Act, reviews the appropriate definitions, and then describes landmark cases (such as the J.D. Salinger case where Salinger manuscripts donated to libraries could not be quoted from because Salinger did not give up his intellectual property and the Richard Wright case where the manuscripts had been sold and, as a result, copyright assigned over to the archival repository). In such discussions, Carson is clear and concise in his analysis.
From time to time, Carson branches out and proposes some new directions or solutions to legal issues confronting archivists and librarians. Drawing on trade secret laws, Carson believes that these laws can be used by librarians and archivists “to help protect the confidentiality of our patron interactions” (p. 123). Carson writes, “I believe that trade secret law gives library [and archives] patrons an additional protection beyond that of professional ethics and state nondisclosure laws. My theory is that, under trade secret law, courts could enjoin libraries [and archives] from revealing patron information” (p. 156). I am not a lawyer, and I certainly don’t know how this will play out, but it is an intriguing proposal and reveals something of the value of the book.
Another interesting topic explored by Carson is the matter of “information malpractice,” tethering issues of professional ethics with that of legal concerns and considering the consequence of librarians offering legal and medical advice while still answering “directional and holdings questions” (p. 183). Carson explains that “we should not interpret information; rather, we should help patrons find appropriate tools, we should explain the use of these tools, and then we should get out of the way” (p. 187). While this is clearly different than the circumstances of most archivists, I wish Carson, here and elsewhere in the book, might have been more explicit in the differences archivists and librarians may find themselves in. Shortly after, for example, Carson does a nice job of explaining how archivists and librarians meet the legal definitions of professionals.
Throughout the book Carson discusses a topic by reviewing the relevant law, professional standards and ethics statements, and then tries to find practical stances for librarians (mostly) and archivists often where is conflict or confusion. When he weaves his way through the maze of laws, standards, and advice about access to library patron records, for example, Carson writes, “My solution is not something that comes from our professional associations, but rather from my background in law. What I would recommend is that librarians adopt the standard that psychologists, psychiatrists, clergy, and other professionals use. What a patient says to a counselor is confidential, but if the person is a danger to himself or others, the counselor has a duty to report this situation to the potential victim and to the appropriate authorities” (p. 238).
Carson, as a supplement to the book, has a website on the topic of library and archives law (http://www.wku.edu/~bryan.carson/librarylaw/). Obviously, this is a valuable book and website for archivists and librarians managing programs and holdings in our litigious age.