Applying Copyright Law: A Practitioner’s Perspective, Peter Hirtle, Cornell University
For the practitioner, three essential questions should be asked when navigating U.S. copyright law:
Am I at risk when I digitize materials?
First off, make sure that a work is actually copywritten – many people claim copyright when none exists. If a work that you wish to digitize is indeed copywritten then you have five options: wait for the copyright to expire; use Section 108 (Libraries and Archives); use Fair Use; Ask permission (Problem: Locating copyright owners can be difficult and expensive. Plus, there are no set guidelines for how thorough an institution must be in searching for copyright owners "in good faith".); run the risk and digitize anyway.
If I digitize without permission, how can I protect my institution for legal action?
In cases where one has digitized without permission, the possible damages are high, but the likelihood of risk is low. One may further minimize risk by making a “good-faith”, documented effort to establish fair use; by using a disclaimer with all digitized objects; by not making a profit off the digitization endeavor; and, if need be, by purchasing copyright infringement insurance. The key point is to work with officials in your institution to establish a mutually acceptable level of risk.
How can I protect my own digital assets from being tampered with?
If you own the copyright to the original objects and their digital copies, then you may send a cease and desist order and/or pursue other legal actions toward violators. Other forms of control over the content that you provide may include licensing access to use the materials, watermarking digital images or providing only low-resolution versions of your digital images. All of these methods are expensive and imperfect. Perhaps the best solution is a social approach wherein you make your use preferences known, trust your users to be respectful of your interests and accept the fact that some control over your digital assets will be lost.