Copyright Fair Use on Digitized and Orphaned Works: Washington Office Update #alamw12

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A panel of five copyright experts offered helpful tips and advice on orphaned works and digitization at the ALA Washington Office session this morning in Dallas.

Much of the conversation revolved around copyright fair use and the willingness of academic and public library leaders to take risks that authors and copyright owners might appear and sue for damages.

Kevin Smith of Duke University suggested a four-pronged approach to reduce the legal risks to digitizing content that does not have clear provenance:

1. If the work has been published, it has to have had the copyright renewed over time. Review to see if there are renewals.
2. If there are pieces that can be identified, get permission selectively within that group of pieces.
3. Add scholarly comment to the collection to increase the defense that this is fair use.
4. Have a “take down” policy in which the institution is willing to take down a collection if someone approaches with a claim, then have a discussion around those works.

“If you take that multipronged approach, you’ll have a risk that’s relatively low,” said Smith.

Another presenter, Mary Minnow, who advises libraries on fair use and other legal considerations, said, “We need not be afraid of fair use. Expansive application of fair use is beneficial.”