Keeping Library Digitization Legal

Overcoming the legal hurdles surrounding digitization

May 2, 2011


The ability to digitize hard copies, the proliferation of born-digital content, and increased access to online distribution hold the promise of improved access to library materials. Despite these advances, the legal issues surrounding collections increasingly hinder libraries and archives in providing this access. This hurdle can be overcome by a mixture of good policy, careful action, a reliance on the protections afforded to libraries and archives by the law, and a healthy attitude toward working with lawyers or general counsel.

Hesitant? You’re not alone

Technology has vastly outpaced both the law and digital librarianship. Any library with a good scanner and some staff hours can make high-quality digital copies for online distribution or provide patrons a place to comment on and discuss materials online. Many libraries don’t, though, because they are unsure whether they can legally do so.

This isn’t really their fault. Copyright law may charitably be described as unclear. University of Michigan Law Professor Jessica Litman has described it more bluntly as a “swollen, barnacle-encrusted collection of incomprehensible prose.” Lack of clarity in the law itself is not helped by the massive amount of misleading or outright incorrect information available online. With the law incomprehensible and the perceived penalties for missteps so extreme (millions of dollars for downloading songs, anyone?) it’s no wonder some libraries are hesitant to move forward with their projects.

Into the digital future

To help fix this problem, libraries need a simple plan to enable them to make aggressive, full, and legal use of their collections. The following are steps that, if followed, will take your library a long way into the digital future:

  1. Arm yourself with an understanding of the basic law. Yes, the law is confusing, but there are some basic principles you should be aware of. Many highly intelligent scholars and professionals have done impressive work to make this information available: Librarians including Ken Crews, Mary Minow, and Kevin Smith have published extensively on this subject and provide invaluable insight into the legal complexities of digital librarianship.
    At the very least, you should be familiar with the rights and responsibilities laid out in the Copyright Act, with particular emphasis on Section 106, which lists the rights that copyright provides to creators; 107, which lays out the fair use limits to those rights; and 108, which gives libraries even more rights to use copyrighted works. You don’t need to wade through the statutes alone, although I would recommend giving it a shot; Crews, Minow, and Smith have written some excellent introductory material on the law, and becoming familiar with their work will do wonders for your legal knowledge. Copyright law is extremely difficult to understand, with few people—if any—understanding all of its mysteries. But developing at least a basic understanding of the law will help you plan your project, assemble good facts (more on these below), and effectively make use of the protections provided to you under the U.S. code.
  2. Surround yourself with good facts. You already have a general understanding of what good facts are. Activities at one or another end of the spectrum are pretty clearly recognizable for what they are. For example, it doesn’t take a lawyer to realize that fighting an elderly customer over a $20,000 medical settlement after you burned her with scalding hot coffee is a battle in which you are unlikely to prevail. Similarly, no plaintiff wants to haul a veteran librarian onto the witness stand and grill him about his reasonable belief that making copies of a scientific journal was fair use. Libraries serve one of the main goals of copyright law, as they clearly “promote the progress of science and the useful arts.” It is important for librarians to understand their role in the copyright law bargain. Society gives authors a limited monopoly on the things they create, but also retains a healthy slate of rights. Libraries can and should be confident that they can make full use of these rights. Showing respect for the law, both as a limitation and an empowerment, places the library in its strongest position with respect to the law.
  3. Carefully plan your project. Understand what it is you want to accomplish. Know where your strengths as an organization lie and work to make full use of them. It might help to take an internal inventory to see where you can make the best contribution. Does your collection have a special focus? Make use of it. Do you have access to rare and hard-to-find books? Start there. Different libraries will have different strategies as well. A public library’s mission and expertise are different from those of a specialty library at a research university. Working to your strengths and having a well-planned project will help you avoid sloppy mistakes that may put you in jeopardy. Knowing where you are going is very important when you’re trying to make full legal use of your collections. And finally, having a good plan at the outset will make it far easier for you to create good facts to use to your advantage and help you immeasurably as you try to work within the law.
  4. Finally, remember that—hard as it may be to believe—copyright law can be your friend. Whole sections of the law are dedicated to giving you rights, especially Sections 107 (fair use) and 108 (exceptions for libraries), and you should get to know them and feel free to rely on the protections they provide you. Much of the “progressive” nonlegal literature presents copyright law as an obstacle that must be overcome, and while there is a kernel of truth in that approach, it misses and minimizes the real protections that copyright law provides. By seeing the law as something to work with, as opposed to something you have to struggle against, you turn the problems raised by copyright law into opportunities that it affords you.

A healthy attitude toward copyright is helpful if and when you interact with legal professionals. Your general counsel is your friend, and treating lawyers and the law with respect will contribute to your success. Lawyers are trained to find problems—it’s called “issue spotting,” and it’s pretty much the basis of every law school exam. So it’s no surprise that most people complain that lawyers always say “no” to forward-thinking or complicated projects. But you don’t have to stop at that first “no” if you happen to get one. Think of it as an opening offer, and work from there. Many times, that “no” can be converted into a “yes” with only a small amount of effort on your—and your counsel’s—part. At the very least, you could lay the groundwork for the next time you have a project you want to undertake.

Putting it all together

So what can a library take from this information? Overall, you can relax a bit about legal issues. While there have been a lot of high-profile lawsuits with massive amounts of money in damages at stake, you are most likely not going to be the target of one of them. Libraries have solid legal protection to undertake well-planned projects, possess a great amount of social and political capital, and enjoy widespread popular support; you are essentially overflowing with potential good facts. If you take reasonable and informed steps toward making more liberal uses of your collections, you will be able to proceed farther than you might think. There is so much potential for expanding access to information in this new digital age. It’s exciting to think how libraries can and will lead the way.


BOBBY GLUSHKO, who holds a JD and MSI, is an associate librarian at the University of Michigan Library Copyright Office.