RLI 279 18 June 2012 Research Library Issues: A QuarterlLy Report from ARL, CNI, and SPARC Copyright Risk Management seems more complex than negligence or employment discrimination law. In those areas there are well- established practices that library administrators can follow in order to avoid some of the potential risks, whereas copyright law seems like a morass out of which it appears too difficult to select the right questions to ask and principles on which to rely for complex digitization projects. The purpose of this paper is to outline two fundamental principles of copyright risk management for mass digitization and four strategies to implement those principles. Let me emphasize that nothing presented here is legally innovative or startling in any way. The principles and strategies proposed are entirely straightforward and commonsensical. The goal of this article is to prompt library practitioners to reconsider how they regularly think about copyright law and large-scale digitization, not to make any creative legal arguments. Principles in Copyright Decision Making Librarians tend to focus on a single copyright principle when considering a specific potential digitization project. The reasoning often seems to be that digitization can only proceed if all of the subject materials are in the public domain, or only if a convincing fair-use argument can be made that applies to all of the material. There is no basis in the law for this assumption, and a risk-management approach can help clarify the way in which the different exceptions and limitations in copyright law can work together to reduce the risk of conflict or liability. For large-scale digitization projects that involve heterogeneous materials from the period when copyright protection may persist, there are two simple principles that a library administrator seeking to manage risk should apply. First, try to reduce the number of risky items that a collection contains. Second, try to reduce the number of people who are likely to want to sue you over the collection. This may seem almost laughably obvious, but thinking about a project in terms of potential points of contention and potential litigants happens fairly infrequently and can be very productive in terms of risk management. One obstacle to this kind of reasoning is sometimes that librarians simply do not want to think in terms of potential lawsuits. Even abstract reasoning about the potential of getting sued can make one nervous, and if librarians are talking with their university counsel it also may provoke an adverse reaction. But in reality we are thinking about potential lawsuits when we post discrimination and harassment procedures as well, although we are also considering the health of our working environment. All legal considerations in libraries involve some attention to avoiding legal conflicts, and there is no sound reason that copyright should be treated differently. Indeed, considering large-scale digitization in this way has a significant benefit. Once the questions about potential points of contention and potential plaintiffs are considered, the relatively low risk involved in many projects will become apparent, as will the strategies that can be pursued to further reduce that risk. What initially may seem a frightening subject to consider—who might sue us over what material—actually proves to be quite empowering when applied to many collections that might be considered for large-scale digitization. First, try to reduce the number of risky items that a collection contains. Second, try to reduce the number of people who are likely to want to sue you over the collection.
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