Despite recent lawsuits over e-reserves, digital archives, and orphan works, at a two-hour program at ALA Midwinter, panelists urged librarians to go forth and digitize, that they already have the sturdy legal cover they need to proceed: fair use. So, why then are so many librarians still hesitant to assert fair use and move forward with digitizing collections, especially their archival, special collections? In a word, risk.

“We live in a litigious society,” observed University of Louisville Scholarly Communication adviser, Dwayne Buttler. “The concern about orphan works is not that they are not really good fair use arguments,” he explained, “it’s risk averse-ness—even though it is almost nil that anyone in a box of photographs is going to come back and sue you, a lot of institutions are uncomfortable with that risk.” But when pressed, no one on the panel could recall a case where an owner of an orphan works surfaced and sued a library for digitizing their work, suggsesting that, with the aid of best practices, and and a good process, libraries can safely digitize their cultural treasures and make them available to researchers.

The panel, sponsored by the American Library Association Washington Office, looked at a broad range of issues of digitization, and specifically, at the state of orphan works—a subject that has become a hot topic following the collapse of the Google Book Settlement and a recent lawsuit filed by the Authors Guild against HathiTrust. In addition, Register of Copyrights Maria Pallante issued a report late in 2011 that listed orphan works legislation as a priority for the copyright office. But if there seems to be little political will to revive orphan works legislation, and disagreement over what that legislation should look like, there is also healthy skepticism from libraries as well.

Mary Minow, an expert on copyright and library issues who writes for, suggested orphan works legislation could actually hurt libraries, because setting up some kind default licensing system, as has been proposed, could negatively impact libraries. “If we move into a licensing realm, then there’s a market and that helps to defeat an argument for fair use, so it’s something we have to be very careful of,” Minow said. “I think we need to not be afraid of fair use.”

Duke University’s scholarly communication officer Kevin Smith agreed, and warned librarians not to embrace a license-based approach at the expense of fair use. “If we have to sacrifice one or the other, sacrifice the licensing scheme rather than let it undermine fair use.”

Buttler, then brought the issue full circle, noting that the orphan works problem was created when Congress extended copyright to all creations, while removing the requirement of registration. The end result is boxes and boxes of photographs and other things, including books, in library collections, valuable cultural and historic artifacts, with no identifiable owners. At what point, he asked, does Congress look at the other end of the social bargain—that if one is to claim a copyright, what responsibility do they have to do something affirmative to protect it, such as registration? The panel agreed that the problem was only going to get worse, as digital tools, from blogs, to camerphones, create a torrent of new works constantly.

The conversation echoed the arguments made recently by Patricia Aufderhide and Peter Jaszi in their recent book Reclaiming Fair Use, featured in PW’s ALA’s 2012 Midwinter Preview.

The second hour of the session began with a discussion of the Internet Archive's Open Library initiative, a collective of libraries using the IA's digitization program to scan and make lendable e-books--including some popular, contemporary titles. The program now has over 1000 participating libraries, and three million books available, many public domain, with over 10 million downlaods a month. The question, asked Carrie Russell, copyright specialist at the ALA Washington Office, is how? Or, more to the point, why have they not been sued?

Robert Miller, IA's Global Director of Books, said because they are just doing what libraries do, lend books, the only difference is they do it with digital copies. "Libraries have been handling in-copyright material for years," he explained. "They authenticate as patron, the patron takes the book off the shelf, the patron brings it back." The key for transferring this to the digital realm, Miller explained, was to ensure no more than one copy circulates at a time, a mission they take so seriously that the physcial books from which the scans are created are sealed in shipping containters and stored in a warehouse. It is combination of a "space-shifting" argument, Duke's Amith noted, and fair use, Minow added, as the digital copy that is lent is restricted from any copying, and disappears at the end of a loan period, so there are no copies. But, Miller says, the IA would prefer to buy the digital files from publishers, although most, as IA's Brewster Kahle has told PW, don't sell their files. "We lead with out checkbook," Miller said.

With publishers refusing to license contemporary e-books to libraries, why shouldn't libraries just take up this approach? Miller said he thinks libraries can, and just may. "Gradually, step by step we're marching forward," Miller said. "What we've tied to do is be fair, follow guidelines in place, and come up with a solution to an opportunity, not a problem, to an oppportunity."