RLI 279 22 June 2012 Research Library Issues: A QuarterlLy Report from ARL, CNI, and SPARC Copyright Risk Management Authors Guild.12 In considering that lawsuit, however, it is important to distinguish between the legal arguments being made in the case and the long-term goals of the plaintiffs. The actual legal arguments do not involve orphan works for the simple reason that no one who holds rights to an orphan work, properly defined, is a plaintiff in the suit. Although the alleged errors on HathiTrust’s initial list of potential orphan works received a good deal of attention, none of those works were ever distributed to the public, and the attention received by the case actually showed that the system of making a list of possible orphan works available in advance of their actual distribution was very effective. In an ideal situation, the Authors Guild would work with HathiTrust to be sure that similar errors do not occur in the future. In a filing made in this lawsuit in February 2012, the Authors Guild has made a unique and troubling argument about fair use and libraries.13 In essence they suggest that the explicit library exceptions contained in section 108 of the Copyright Act are the sole provisions for libraries, such that fair use is unavailable as a defense for library activities. If accepted, of course, this argument would severely curtail the options for digitizing special collections. But it seems very unlikely that a judge would accept such a suggestion. For one thing, this position would place libraries at a distinct disadvantage against all other potential users of copyrighted content, an outcome clearly at odds with the privileged position usually afforded to libraries by Congress and the courts. Even more decisive, however, is the inclusion in section 108 itself of a provision that reads, “Nothing in this section…in any way affects the right of fair use as provided by section 107.”14 So while this case bears watching and should be a matter of concern to all librarians, the clear intention of Congress ought to prevail, so that fair use will remain a significant option for libraries contemplating digitization projects. Conclusion None of the strategies outlined in this article are unique or innovative. The important thing is for librarians to understand how they can work together to provide a more complete picture of the copyright situation involved in a proposed digitization project and a more accurate assessment of the potential risk. Copyright law often seems unmanageably complex, leading librarians to focus too much on a single aspect of a project and, when that aspect proves inapplicable, to give up the proposed digitization. But the multifaceted nature of the law, especially its variety of limitations and exceptions, should really be seen as an invitation to a holistic evaluation that focuses on risk and considers how each facet can contribute to a risk-reduction strategy. If this is done consistently as digitization projects are undertaken, the risk of infringement litigation will usually be seen to be much more manageable, and a great deal of unnecessary self-censorship will be avoided. 1 Prudence Adler, Brandon Butler, Patricia Aufderheide, and Peter Jaszi, “Fair Use Challenges in Academic and Research Libraries,” December 20, 2010, http://www.arl.org/bm~doc/arl_csm_ fairusereport.pdf. 2 Ibid., 12. 3 Ibid., 11–12. 4 Ibid., 12.
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