(by Peter Hirtle)
Those of you who have made it through Copyright and Cultural Institutions know that I am a big believer in the importance of risk assessment when digitizing materials. The number of instances where we can know with certainty that we can digitize with impunity is very small. If we limited ourselves to those instances, our digitized collections might consist of nothing but published books issued before 1800. Risk assessment must be part of every librarian's and archivist's skill set.
A tool recently released in the UK can help us think in terms of risk. The Risk Management Calculator was developed to help projects that are building open educational resources (OER) understand the types of factors that might determine specific levels of risk when they include copyrighted items in the resources without the permission of the copyright owner. The tool asks questions about the material you want to use and how you want to use it, and then generates a numerical score and the level of risk associated with that use. You can learn more about the tool and its background in this JISC podcast.
The tool was clearly developed with UK law in mind. For example, it seems to place a higher weight on privacy considerations than would a US repository, and doesn't seem to account for whether the subject whose privacy might be invaded is alive or dead. I tried as a test case a letter not created with commercial intent that you wish to make available for non-commercial research or private study and whose author is both high-profile and traceable, but who doesn’t respond to a permission request. The tool gives that a level of 20 (out of 150) and suggests this is low risk. But let’s put in some names: J.D. Salinger, sending a private, noncommercial letter to a 3rd party, and whose estate doesn’t respond to your request to publish it. I would think that is about the highest risk you could have for a lawsuit (even if the monetary damages are likely to be low).
But even if the analysis it presents is not perfect under US law, the tool is still helpful in organizing our thoughts as we try to assess and weigh risk. It reminds us that how we make material available can affect our risk in doing so. And it may help institutions think about how risk-adverse they want to be.