rationale for CDL remains the same regardless of a rightsholder objection, libraries may choose to limit risk and exposure to litigation by employing a takedown policy and including in their system design a mechanism for rightsholders to communicate about books that they would prefer not be lent. Many libraries already employ such policies with digitized collections, particularly those that include materials from unknown or unlocatable owners. For CDL, extending those policies may be a natural and simple way to defuse risk before it culminates in a potentially costly dispute.
- B.Collection Choices
The choice in what books are selected for CDL can also play a significant role in risk mitigation. Book candidates with the lowest risk—and the strongest fair use argument, though those analyses are not necessarily tied together—are generally those with the lowest likelihood of market exploitation. Our analysis above pays special attention to 20th century books generally, but there are several subcategories of works that libraries may select for CDL that would yield further reduction of risk.
- 1.Old Books and the Public Domain
There is some practical risk mitigation in selecting older titles for digitization.[1] In addition to aiding in the likelihood that the market is significantly diminished, many older works may in fact be in the public domain, subject to no copyright restrictions on use at all. Because the public domain analysis can be time consuming and costly,[2] for libraries that are unable to undertake a full public domain analysis to each work, using older works as a proxy in combination with a CDL strategy may be an effective way to minimize copyright-related risks.
For published books, there are a few ways to approximate which works are more likely to be in the public domain than others. One is to focus on books first published in the United States, since many of the rules that place published
- ↑ There is also a compelling argument that the fair use case should become stronger the further along the work is in its copyright term. See Joseph P. Liu, Copyright and Time: A Proposal, 101 Mich. L. Rev. 409 (2002); Justin Hughes, Fair Use Across Time, 43 UCLA L. Rev. 775 (2003); William F. Patry & Richard A. Posner, Fair Use and Statutory Reform in the Wake of Eldred, 92 Cal. L. Rev. 1639 (2004).
- ↑ For an excellent and thorough guide, see Melissa Levine et al., Finding the Public Domain: Copyright Review Management System Toolkit (2016), https://doi.org/10.18665/sr.289081.
