RLI 279 17
June 2012 Research Library Issues: A QuarterlLy Report from ARL, CNI, and SPARC
Copyright Risk Management:
Principles and Strategies for Large-Scale Digitization Projects
in Special Collections
Kevin L. Smith, Director of Scholarly Communications, Duke University T
he foundational premise of this article is that librarians and archivists frequently practice a
form of self-censorship when making decisions about digitization of special collections and
unique local holdings. This is hardly a controversial assumption, and it was nicely documented
in ARL’s 2010 report on “Fair Use Challenges in Academic and Research Libraries.”1 In that document,
interviewees report reluctance to undertake digitization projects because of uncertainty, and a tendency
to select only the safest and most homogenous collections. As one interviewee expressed this view, “We
have a lot of things in the public domain, that’s the ‘easy pickins’ for digitization…. We haven’t gotten into
controversial ground.”2 The authors of the report elaborate on this tendency when they write:
The challenge is particularly steep when librarians confront mixed collections that include
“orphan” works (works whose copyright-holder is unknown or unreachable) and works,
such as musical recordings or video, that implicate multiple rights and rights holders.3
In the early stages of library digitization projects, this preference for collections that were “safe” and
easy to understand in terms of copyright analysis was not particularly problematic. But as the pace of
projects increases, it is more and more troubling to realize that decisions are being made not based on
scholarly needs or the importance of the material itself, but merely to avoid controversy and risk. In some
cases the attitude is that it is better to have some digital material and to avoid risk than to have digital
collections that are truly useful and beneficial to the scholarly community. These decisions are made in
spite of the discomfort many librarians feel with the “distortion of mission and the incompleteness of [the]
resulting digital collections.”4
Risk Management as a General Practice in Libraries
What often is not recognized in these discussions about copyright is that this is one of the only legal
issues in higher education in which the attitude of “no risk at all” prevails. For a wide variety of other
areas we undertake to manage risk for the very sound reason that we know we cannot eliminate it
entirely. As administrators of large and heavily used buildings, for example, librarians know that there
is always a risk of tort claims based on negligence. They put procedures in place to deal quickly with
spills or broken furniture to reduce the likelihood of injuries and negligence claims, partly because this
is good risk-management practice. In a similar way, libraries, like other employers, post information
about channels and protections for employees reporting discrimination or harassment. This practice also
is managing a risk that is omnipresent yet capable of reduction but not elimination. In this context, it is
curious that copyright is often treated differently—not as a subject of risk management but as an obstacle
that must either be avoided completely or allowed to completely block a desired digitization project.
This article contends that copyright should be treated in the same way as other risks of legal liability,
as a subject of risk management. One reason that this may not often be the case is that copyright law
June 2012 Research Library Issues: A QuarterlLy Report from ARL, CNI, and SPARC
Copyright Risk Management:
Principles and Strategies for Large-Scale Digitization Projects
in Special Collections
Kevin L. Smith, Director of Scholarly Communications, Duke University T
he foundational premise of this article is that librarians and archivists frequently practice a
form of self-censorship when making decisions about digitization of special collections and
unique local holdings. This is hardly a controversial assumption, and it was nicely documented
in ARL’s 2010 report on “Fair Use Challenges in Academic and Research Libraries.”1 In that document,
interviewees report reluctance to undertake digitization projects because of uncertainty, and a tendency
to select only the safest and most homogenous collections. As one interviewee expressed this view, “We
have a lot of things in the public domain, that’s the ‘easy pickins’ for digitization…. We haven’t gotten into
controversial ground.”2 The authors of the report elaborate on this tendency when they write:
The challenge is particularly steep when librarians confront mixed collections that include
“orphan” works (works whose copyright-holder is unknown or unreachable) and works,
such as musical recordings or video, that implicate multiple rights and rights holders.3
In the early stages of library digitization projects, this preference for collections that were “safe” and
easy to understand in terms of copyright analysis was not particularly problematic. But as the pace of
projects increases, it is more and more troubling to realize that decisions are being made not based on
scholarly needs or the importance of the material itself, but merely to avoid controversy and risk. In some
cases the attitude is that it is better to have some digital material and to avoid risk than to have digital
collections that are truly useful and beneficial to the scholarly community. These decisions are made in
spite of the discomfort many librarians feel with the “distortion of mission and the incompleteness of [the]
resulting digital collections.”4
Risk Management as a General Practice in Libraries
What often is not recognized in these discussions about copyright is that this is one of the only legal
issues in higher education in which the attitude of “no risk at all” prevails. For a wide variety of other
areas we undertake to manage risk for the very sound reason that we know we cannot eliminate it
entirely. As administrators of large and heavily used buildings, for example, librarians know that there
is always a risk of tort claims based on negligence. They put procedures in place to deal quickly with
spills or broken furniture to reduce the likelihood of injuries and negligence claims, partly because this
is good risk-management practice. In a similar way, libraries, like other employers, post information
about channels and protections for employees reporting discrimination or harassment. This practice also
is managing a risk that is omnipresent yet capable of reduction but not elimination. In this context, it is
curious that copyright is often treated differently—not as a subject of risk management but as an obstacle
that must either be avoided completely or allowed to completely block a desired digitization project.
This article contends that copyright should be treated in the same way as other risks of legal liability,
as a subject of risk management. One reason that this may not often be the case is that copyright law
