Digitizing special collections and leveraging fair use

After several years of work, the ARL Code of Best Practices for Fair Use in Academic and Research Libraries is out. I was particularly eager to read the Code for two reasons. First, I have long admired the work of Peter Jaszi and his colleagues at American University’s Center for Social Media who have been instrumental in producing several “code of best practices for fair use” documents for documentary filmmakers and other creative communities. Second, I strongly suspected that digitizing unpublished materials would turn up as one of the top challenges for academic and research libraries. And indeed, one of the eight scenarios addressed by the Code is creating digital collections of archival and special collections materials.

I was pleased to see that the Code and our own “Well intentioned practices for putting collections of unpublished materials online” (or WIP) are quite complimentary. Despite the fact that the Code was developed using what sound like Chatham House Rule and our discussions were conducted in the open, the two documents do not differ much in spirit. WIP downplays fair use in favor of managing risk (and outlines simple practical steps for doing so), whereas the Code makes a strong case for institutions to consider that collections are more than the sum of their parts, and these aggregations themselves may be transformative. It’s a powerful argument and also underscores the value of the work that librarians, archivists and curators everywhere do to build collections.

As a general observation, this is the first of the “codes of best practice” that has not only had a set of “limitations,” for each scenario but also “enhancements.” According to Peter Jaszi and Brandon Butler from ARL, the enhancements were added because librarians approach fair use with a good deal of caution. My fear is that librarians will read the “enhancements” as “requirements,” which would set us back in terms of making progress on what is perceived by some as a large digitization backlog. However, I do believe that this document should give additional courage to the community to digitize unpublished materials.

ARL and other organizations have been taking the Code on the road, and their have already been a number of webinars and in-person events so there are plenty of opportunities to learn more. As was said in one of the webinars, fair use is a muscle — if you don’t use it it will wither!

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