78 Op. Att'y Gen. 163 (1989)

78 Op. Att'y Gen. 163, 163 (1989)
Libraries; Municipal libraries may not charge a fee for lending video cassettes which are part of a reasonable permanent collection but may charge for lending additional copies. Municipal libraries may not charge a fee for online searching of bibliographic or informational databases. OAG 30-89

October 11, 1989

78 Op. Att'y Gen. 163, 163 (1989)
HERBERT J. GROVER, State Superintendent
  Department of Public Instruction

78 Op. Att'y Gen. 163, 163 (1989)
  You have asked for my opinion on the following two questions: (1) "[M]ay libraries impose fees for the lending of video cassettes?" and (2) "[M]ay libraries charge for online searching of remote commercial bibliographic and information databases?"

78 Op. Att'y Gen. 163, 163 (1989)
  You have referred to an earlier opinion published at 73 Op. Att'y Gen. 86 (1984). That opinion concluded that "only the following may be imposed: charges for use of framed pictures, projectors, screens, audio cassette players, AM/FM radios and meeting and lecture rooms." 73 Op. Att'y Gen. at 89. The prior opinion therefore answers your first question, and libraries may not impose fees for lending video cassettes. However, if the library "acquires a reasonable number of copies [of video cassettes] (the number it would normally acquire for its permanent collection) and allows these copies to circulate free of charge, then it can justifiably collect [a] fee for lending any additional copies it purchases." 73 Op. Att'y Gen. at 89. In that regard, the library, in conjunction with your department, must determine a reasonable number of free copies of video cassettes which would be considered part of its permanent collection.

78 Op. Att'y Gen. 163, 163-164 (1989)
  Your second question requires me to determine, under the reasoning in 73 Op. Att'y Gen. 86, whether providing online searching of remote commercial bibliographic and information databases is a part of the "informational materials traditionally associated with a library." In the prior opinion, I relied upon the definition of "library services" appearing at 20 U.S.C. 351-364 and an opinion of the attorney general of California. I find no new developments in this area, and thus I apply the test enunciated in that opinion:

78 Op. Att'y Gen. 163, 164 (1989)
If the transaction involves the satisfaction, with library resources, of a patron's request for information... such transaction is a "library service."... Perhaps the essential distinction... is between those services which are reflective of a library's inherent information providing function and those ancillary services which are not unique to libraries and which can be just as effectively provided in non-library settings.

78 Op. Att'y Gen. 163, 164 (1989)
61 Op. Att'y Gen. 512 (Cal. 1978); 73 Op. Att'y Gen. at 88.

78 Op. Att'y Gen. 163, 164 (1989)
  Applying this test, it is my opinion that charging for online searching of remote commercial bibliographic and information databases is prohibited by section 43.52(2), Stats.

78 Op. Att'y Gen. 163, 164 (1989)
  In my view, searching bibliographic and information databases is the electronic equivalent of manually searching books containing bibliographic compilations such as The Reader's Guide to Periodical Literature, The Social Science Index, The Humanities Index, The Bibliotech Nationale, Library of Congress catalogs and British Museum catalogs. These compilations are, in my view, informational materials traditionally associated with a library.

78 Op. Att'y Gen. 163, 164-165 (1989)
  While it can be argued that online searching using library personnel is not a traditional function performed by library personnel, providing access to bibliographic material is a service "which [is] reflective of a library's inherent information providing function." 61 Op. Att'y Gen. 512; 73 Op. Att'y Gen. at 88. It is my further understanding that large, printed, bibliographic materials are no longer updated or will not be in the near future. Thus, the electronic bibliographic database is totally replacing printed bibliographic materials. A library patron may not, under these conditions, search the material on his or her own. Therefore, the patron does not have the choice of searching printed bibliographic material for free or paying for the library's resources to conduct the search.

78 Op. Att'y Gen. 163, 165 (1989)
  While I realize this result may place an increased demand on limited public library resources, such a concern is more properly addressed to the Legislature by way of repeal or amendment of section 43.52(2).

78 Op. Att'y Gen. 163, 165 (1989)
  In summary, it is my opinion that public libraries may not charge fees for renting video cassettes or for online searching of remote commercial bibliographic and information databases. The library may charge a fee for video cassettes which are in addition to a reasonable number of permanent collection cassettes.

78 Op. Att'y Gen. 163, 165 (1989)
DJH:WDW
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