I often spend time in talks and conversations trying to shift libraryfolk away from a compliance/risk-management mindset, and towards a risk-tolerant/risk-embracing mindset. For example, I often try to talk people into the idea that libraries should consider engaging in projects where there are legal arguments in our favor – even when some other folks might disagree about the legal arguments.
But really: talking people into considering engaging? The ALA Code of Ethics says that we “advocate balance between the interests of information users and rights holders” and that we “do not advance private interests at the expense of library users, colleagues, or our employing institutions”. Avoiding all possibility of copyright risk in all decision-making is advancing private interests at the expense of library users.
So here’s something you probably won’t hear me saying a lot in large-group presentations (mostly because it would take too long to address related questions.) Rare books, films, videotapes, and audio recordings molder on our shelves as we debate how to apply unclear legal provisions: sometimes libraries should be putting our public interest goals (particularly preservation) ahead of legal considerations. Even if it means contravening the part of the ALA Code of Ethics that says we “respect intellectual property” (why is that in there, anyway?)
To be very explicit: sometimes libraries should be preserving things (or otherwise making copies to serve our patrons and the public) even when we know we have no explicit legal right to do so. Some of the most important things libraries have ever done have been in direct contradiction of laws, censorship, government, religion and other powerful forces. Why give copyright greater respect?
I know many colleagues will disagree with me. Others will want to know when I think those “sometimes” should be. Generally, I’m thinking about preservation of rare and/or rapidly decaying materials, providing access to users with disabilities, and serving the information needs of user populations who have particularly limited information access and/or who are particularly vulnerable in other ways. I don’t have guidelines or best practices in mind – I’m not sure policies could really be written about this sort of thing
(not least because just having a policy about this could expose an
institution to legal risk). These are fundamental (and perhaps individual?) questions of conscience and professional ethics. Sometimes the most ethical course of action and the most legal one are not the same thing.
I do need and want to do a lot more thinking on this issue. I feel it particularly important to emphasize on this post that my opinions do not represent those of my employer, nor the practices of my place of employment.
ETA: I should note that 1) most library preservation copying is already explicitly legal (see sections b and c – the real challenge is making the preservation copies usable) and 2) a LOT of other library copying is probably fair use.
I should also note that while I think it is a bad idea for libraries to agree to contracts that prohibit the kinds of copying we might need to do for our patrons (whether copyright law explicitly permits that copying, or not), I also think that agreeing to such a contract with the intent of later violating it or “working around” it, is itself deeply unethical (and possibly illegal).