Copyright, Licensing, and Risk Management Topic for this afternoon is “Licensing, copyright, and mass digitization – it is all about risk!” Major point I want to make, and to illustrate, is that these topics often converge in daily practice, and the way we need to proceed is to first disentangle the strands and evaluate each individually, then do an overall risk assessment, based on the determinations we have made about the different issues. Two things about risk Very practical determination. Tolerance for risk is different in different institutions, and the nature of the material or the use may be relevant even outside the technical copyright determinations. Music much more risky than images, as a practical matter, because of licensing culture and existence of CROs. As we develop this technique, it is possible to arrive at strategies for managing risk at the beginning of specific projects. Two things about strategy: It is problem-based It must be collaborative, and so our approach this afternoon should also be a discussion rather than a lecture. Start us off with a couple of individual problems that recently came my way. They both involve the reuse of images, but otherwise they take us in different directions Both illustrate, I hope, the complex intersections between copyright, licensing and risk management.

Commercial contract for digitization Recent negotiations Scope of the permission we are able to give. Do not hold copyright Can provide rights holder contact License acknowledges need for vendor to clear rights But terms of license granted (heart of the contract) suggest that Duke is giving permission for many uses that implicate copyright Problem of distinguishing copyright permission from permission to use (as owner of physical property Added language clarifying that license referred only to rights held by Duke. Familiar problem for many Issue of museum permissions plague our faculty scholars Our libraries sometimes replicate the problem This kind of contract reinforces the misperception Two points “Other people have signed it” is not a good reason to enter a legal relationship that makes you uncomfortable Vendor wants a CYA document for the file (publishers do this too). Should not let their need for “security” compromise yours! Contracts are about managing risk Should be mutual and balanced – each party assumes the risk they are best able to manage. That’s why this “document for the file” approach is problematic – risk imbalance

License, contract, or both? License is simple permission to exercise a right. A contract requires mutual bargain: Offer Acceptance Consideration A license need not be a contract, but usually is. A contract can be many things, including a license.

ETDs – a common licensing dilemma. Can student publish later? Will publisher agree to publish? Evidence of risk? Negotiation Can student revoke license? Terms? Reason? Consequences Since dissertation intentionally a public work of scholarship, institutions often do not allow permanent embargos. A student who insists puts the value of her degree at risk. If issue is publication, negotiation should be possible If issue is quality, that is an academic decision If issue is sensitive information, what do we do?

Risk management for mass digitization Four prong strategy Recognize public domain, even if all PD works cannot be identified Seek permission selectively, where it most reduces risk Take steps to strengthen fair use Always be willing to talk, keep take down as an option

The value of conversation Story of the letter written by a young girl appealing for support for Cuban refugees, distributed by Republican party of Florida.

About negotiation Negotiate interests, not positions Know your BATNA You can use the other parties’ doubts, and their certainties. Silence can be golden Think laterally; make connections Be nice BATNA – this is where libraries often fail in negotiation with vendors; do not believe they have an alternative. Using certainties – example of marital support negotiations Silence – common strategy re choice of law Lateral thinking – for choice of law, use defendants jurisdiction.