Digitization projects were also shaped by some interviewees’ risk
management choices. These librarians had significant difficulty judging their
institution’s risk exposure without a clear idea of core legal rights. These
interviewees told us that they took the notoriety of the author or rightsholder
into consideration when deciding whether to digitize materials. They suggested
that famous rightsholders, especially entertainers, are more likely to bring
lawsuits over digitized collections. So in a special collection that includes
hundreds of items of correspondence, some interviewees said they would go
forward with digitization without seeking permission, but only if the authors
were relatively obscure. Collections that mixed items of both famous and
obscure origin were edited to remove the “risky” items.
Many interviewees described concerns about allowing access to both digital
and physical holdings in special or unique collections. These librarians were wary
that they would be responsible if a library user were to “leak” digital versions of
these holdings on the Internet. To prevent this, scholars were denied access to
materials, or put to considerable hardship because of constraints interviewees
imposed on the use of copyrighted materials. In some cases, access was limited to
the physical site of the institution. In others, digital surrogates were intentionally
degraded (scans were conducted at low resolution, images available only as
thumbnails). In still others, scholars were required to sign waivers declaring their
purely academic and non-commercial interest in the item at issue.
In some cases, licenses prevented interviewees from supporting scholarly
fair use. Licenses that govern access to databases of journal articles, for example,
sometimes prevented researchers from conducting high-volume computerized
retrieval and analysis of articles, an emerging method of meta-research that is
becoming well established among professors and graduate students in the
sciences. Interviewees described students and professors who got these projects
well underway before receiving complaints from the database operator about
their activities, which are arguably fair use. Similarly, licensed materials may
only be accessed in formats that prevent fair use copying or manipulation.
Some interviewees described real frustration at their inability to persuade
key stakeholders that some licenses need to be renegotiated to make more
allowance for fair use.
Finally, several interviewees described a practice of operating ILL programs
in strict obedience to the extra-legal norm known as the “rule of five.” The rule
was formulated in the late 1970s as a safe harbor for libraries seeking to comply
RLI 273
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Challenges in Employing Fair Use in Academic and Research Libraries
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C O N T I N U E D
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DECEMBER 2010 RESEARCH LIBRARY ISSUES: A BIMONTHLY REPORT FROM ARL, CNI, AND SPARC
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