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 21 Challenges in Employing Fair Use in Academic and Research Libraries ( C O N T I N U E D ) DECEMBER 2010 RESEARCH LIBRARY ISSUES: A BIMONTHLY REPORT FROM ARL, CNI, AND SPARC
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