ARL, CNI, SPARC

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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Research Library Issues, no. 279 (June 2012) resources

Extracted Text (may have errors)

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.

Help

June 2012 Research Library Issues: A QuarterlLy Report from ARL, CNI, and SPARC
RLI 279 21
Copyright Risk Management
cases, where the rights holders were careful not to deny permission but only to refuse to grant it, the
library recognized that its fair-use argument still provided enough security to proceed. In almost two
years, this project, which seemed very risky on first evaluation, has generated no complaints (and thus no
need to use the take-down policy associated with it) while proving very popular with researchers and the
general public. In the other case, a joint venture between four libraries, the importance of the strategies
was more administrative it allowed the libraries involved to convince all of the four provosts of their
universities to endorse the project, which was an important step toward obtaining grant funding.
Orphan Works
It is an interesting exercise to consider how orphan works—works that are putatively still protected by
copyright but for which no rights holder can be located or successfully contacted—fit into the strategies
that have been outlined above.
Orphan works are, by definition, not part of the public domain. But the first strategy, that of
recognizing the scope of the public domain relative to a proposed digitization project, may have the effect
of helping the librarians planning the project understand that the orphan works problem is smaller than
they feared. As Wilkin points out in his article on bibliographic indeterminacy, we often lack enough
information to decide, for example, whether a work did have its copyright renewed, so that it is potentially
an orphan, or whether it did not and is therefore in the public domain.11 So analysis of a collection in
regard to the likelihood of public-domain materials would also help reduce anxiety over the size of the
orphan work problem.
Permission is impossible for orphan works, again by definition. But we should recall that the reason
for seeking permission from major or potentially litigious rights holders is to reduce the number of likely
plaintiffs a library might provoke. Because rights holders in orphan works cannot be located, and in many
cases probably do not even know that they hold rights (as is probably the case, for example, with the heirs
of a letter writer), they should not be counted in the pool of potential plaintiffs. Also, if a rights holder for
a work previously considered an orphan does surface, a take-down policy and the willingness of the
library to discuss the matter will be especially likely to defuse the problem, since the rights holder would
have little expectation of profit from the work.
Fair use, of course, applies equally to orphan works as it does
to in-copyright works for which the rights holders are known or
discoverable. Indeed, fair use is probably itself the best “solution” to the
orphan works problem, at least in the context of large-scale digitization
of library collections. In addition to the support for a fair-use argument
that has already been discussed, the fact that a rights holder has not
been discoverable or willing to respond to a permission request further
strengthens the fourth-factor argument that the use in question does
not harm the market or potential value of the work. By definition, again,
orphan works are not subject to normal commercial exploitation or to regular licensing, so the fair-use
defense becomes quite strong.
The fair-use defense for digitizing large special collections is not, of course, entirely uncontroversial,
as is shown by the recent litigation brought against HathiTrust and five of its university partners by the
...fair use is probably itself
the best “solution” to the
orphan works problem, at
least in the context of large-
scale digitization of library
collections.

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Research Library Issues, no. 279 (June 2012) resources

Extracted Text (may have errors)

June 2012 Research Library Issues: A QuarterlLy Report from ARL, CNI, and SPARC
RLI 279 21
Copyright Risk Management
cases, where the rights holders were careful not to deny permission but only to refuse to grant it, the
library recognized that its fair-use argument still provided enough security to proceed. In almost two
years, this project, which seemed very risky on first evaluation, has generated no complaints (and thus no
need to use the take-down policy associated with it) while proving very popular with researchers and the
general public. In the other case, a joint venture between four libraries, the importance of the strategies
was more administrative it allowed the libraries involved to convince all of the four provosts of their
universities to endorse the project, which was an important step toward obtaining grant funding.
Orphan Works
It is an interesting exercise to consider how orphan works—works that are putatively still protected by
copyright but for which no rights holder can be located or successfully contacted—fit into the strategies
that have been outlined above.
Orphan works are, by definition, not part of the public domain. But the first strategy, that of
recognizing the scope of the public domain relative to a proposed digitization project, may have the effect
of helping the librarians planning the project understand that the orphan works problem is smaller than
they feared. As Wilkin points out in his article on bibliographic indeterminacy, we often lack enough
information to decide, for example, whether a work did have its copyright renewed, so that it is potentially
an orphan, or whether it did not and is therefore in the public domain.11 So analysis of a collection in
regard to the likelihood of public-domain materials would also help reduce anxiety over the size of the
orphan work problem.
Permission is impossible for orphan works, again by definition. But we should recall that the reason
for seeking permission from major or potentially litigious rights holders is to reduce the number of likely
plaintiffs a library might provoke. Because rights holders in orphan works cannot be located, and in many
cases probably do not even know that they hold rights (as is probably the case, for example, with the heirs
of a letter writer), they should not be counted in the pool of potential plaintiffs. Also, if a rights holder for
a work previously considered an orphan does surface, a take-down policy and the willingness of the
library to discuss the matter will be especially likely to defuse the problem, since the rights holder would
have little expectation of profit from the work.
Fair use, of course, applies equally to orphan works as it does
to in-copyright works for which the rights holders are known or
discoverable. Indeed, fair use is probably itself the best “solution” to the
orphan works problem, at least in the context of large-scale digitization
of library collections. In addition to the support for a fair-use argument
that has already been discussed, the fact that a rights holder has not
been discoverable or willing to respond to a permission request further
strengthens the fourth-factor argument that the use in question does
not harm the market or potential value of the work. By definition, again,
orphan works are not subject to normal commercial exploitation or to regular licensing, so the fair-use
defense becomes quite strong.
The fair-use defense for digitizing large special collections is not, of course, entirely uncontroversial,
as is shown by the recent litigation brought against HathiTrust and five of its university partners by the
...fair use is probably itself
the best “solution” to the
orphan works problem, at
least in the context of large-
scale digitization of library
collections.

June 2012 Research Library Issues: A QuarterlLy Report from ARL, CNI, and SPARC
RLI 279 23
Copyright Risk Management
5 The best resource for comprehensive consideration of what items may be in the public domain is
still Peter Hirtle’s chart on “Copyright Term and the Public Domain in the United States,” http://
copyright.cornell.edu/resources/publicdomain.cfm.
6 John P. Wilkin, “Bibliographic Indeterminacy and the Scale of the Problems and Opportunities Of
‘Rights’ in Digital Collection Building,” Ruminations series, Council on Library and Information
Resources, February 2011, http://www.clir.org/pubs/ruminations/01wilkin/wilkin.html.
7 Ibid., citing data from the Copyright Review Management System at the University of Michigan.
8 17 U.S. Code § 512.
9 See 17 U.S. Code § 504 (c)(2).
10 “AdViews,” Duke University Libraries, http://library.duke.edu/digitalcollections/adviews/.
11 Wilkin, “Bibliographic Indeterminacy.”
12 The documents in this case can be found on the Justia.com website at http://dockets.justia.com/
docket/new-york/nysdce/1:2011cv06351/384619/.
13 See entry number 55 in the above docket report.
14 17 U.S. Code 108(f)(4).
© 2012 Kevin L. Smith
This article is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United
States License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-sa/3.0/us/.
To cite this article: Kevin L. Smith. “Copyright Risk Management: Principles and Strategies for Large-
Scale Digitization Projects in Special Collections.” Research Library Issues: A Quarterly Report from ARL,
CNI, and SPARC, no. 279 (June 2012): 17–23. http://publications.arl.org/rli279/.

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