Start with a basic empirical premise: most librarians (and often the lawyers that advise them) are extremely averse to risk when it comes to copyright matters. Years of experience convince me that this is true. Many activities in a library create risk — letting the public in the door, hiring employees, signing licenses and other contracts — and we usually have policies and procedures in place to reduce and manage those risks. But with copyright we tend to take an all or nothing approach; either we must be 100% confident that there is no risk of infringement or we will not undertake the project. Copyright seems so big and scary that we decline to manage risk and try — we are never actually successful — to avoid it altogether.
The first irony about this approach is that the attempt to avoid risk actually creates risk. Every time we make a choice we both select one option and reject others. If I stay at work until 5 pm today, I will miss the chance to frolic in a gorgeous fall afternoon. Economists refer to the “lost opportunity” costs that are part of every decision. Perhaps the risk of these types of losses is most famously summed up by John Greenleaf Whittier, who wrote, “Of all sad words of tongue or pen, the saddest are these, “it might have been.”
When we consider any decision, we need to balance the risk that something bad will happen if we act with the risk that something good will be lost if we choose not to act. For projects in libraries, which usually involve digitizing material in order to improve access, the loss of a real benefit is also a risk, and should be weighed against the risk of infringement. If we make a serious attempt to balance the risk, recognizing that there is indeed risk in both choices, we will be compelled to make, I believe, a more careful and nuanced assessment of the copyright situation involved in any such undertaking.
Which brings me to another irony, a small but recent example of exactly the risk avoidance (as opposed to risk management) that I am complaining about. Back in the late spring, I wrote a short paper about risk management for large-scale digital projects. In it I advocated an approach that looks at multiple aspects of copyright law when evaluating a potential project and balances the risk involved, after careful analysis, with the pedagogical reward to be gained by going forward (or lost, if a negative decision is reached).
Several colleagues who read the paper suggested that I should publish it, and so earlier this week I submitted it to D-Lib Magazine. I was pleased to get a very quick acceptance, but less pleased to be told that the article would be published as an “opinion piece” and carry a disclaimer distancing the editors of D-Lib from my “opinions.” Why, I asked, was my article different from other academic writings, which almost always make a case for some position or action over against alternatives? The reason, I was told, was the subject matter. The editors did not know enough about copyright, they said, to be assured that my position was a sound one. They went on to say that their lawyers discouraged publishing anything about copyright, since readers might “take this as legal advice to their detriment” and create liability for the magazine.
This struck me as odd. Surely they do not believe that they, or any other journal editorial board, actually warrant the accuracy and soundness of every article they publish? I seriously doubt that the D-Lib editors personally guarantee that technical articles they publish, which sometimes recommend software or hardware solutions, will never lead to unanticipated bugs or security breaches. And I have never once heard of an actual case in which a journal, whether peer-reviewed or not, was held liable for bad information in an article they published (as opposed to where the article is itself infringing or defamatory).
The logic here is flawed because what is really behind this approach is fear, and the irony is that that fear prevents D-Lib from addressing a topic that is of great importance to the world of digital librarianship. Fear could be dispelled by robust discussions and plentiful information about copyright issues, but instead a leading journal elects to remain silent, and therefore reinforces the perception that this is an area that librarians cannot address, must flee from.
In the age of digital libraries, nearly all of our decisions implicate copyright in some way. As a profession, we cannot afford to hide our heads in the sand; we need to seek ways forward, and the search for workable options will require information, debate and discussion. Copyright cannot remain a forbidden topic.
The decision not to publish my paper (I elected not to have it appear marked off as an opinion piece) probably is not any real loss to D-Lib or to the profession as a whole. The paper will appear later this year in another journal, and I will post it here as soon as I am able. Others must decide if it is any good or not. But regardless of the quality of my argument in that paper, the topic, and the sensitive analysis of risk that it demands, is not something we can avoid.
By the way, this blog post is an opinion piece. It, like everything else I write here, represents my own opinion and not the official position of Duke University. But you knew that without my saying so, didn’t you?