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Risky Business

When one considers the application of the principles of “risk management,” industries such as health care, engineering, or financial services come to mind first. However, the way in which an educational institution addresses copyright issues arising on campus, whether it be in the classroom, in the library, or on its network, can also benefit from the principles of risk management. An organized approach that involves a variety of stakeholders from across a university, that includes the development of a copyright literacy program, and that incorporates thoughtful policy drafting, positions an institution for success not only in avoiding infringement claims but also in maximizing the fair use rights of information users.

The principles of risk management as used by those industries named above can be found at the International Standards Organization (ISO) 31000. ISO 31000 enumerates eleven principles of risk management, which are listed below. Beside each principle, I have discussed how implementation of a risk management plan can work toward assuring the protection of not only the rights of copyright owners but also the rights of faculty and students as users of copyrighted works.

Principle 1: Risk management creates and protects value.
The owners of copyrighted works and the users of those works in the creation of new scholarship and culture have valuable interests at stake in the implementation of a copyright management policy at a university. Creators invest time and resources into the creation of the original work, and in return for this, the Copyright Act vests in them certain exclusive rights. Consumers of information, particularly in education, value access to these works to not only increase their own knowledge but also to enable them to expand the field of knowledge through the creation of new works. A comprehensive risk management plan protects these valuable interests by educating faculty and students about their own rights as authors or creators of works and how they can best protect those rights and about how they can benefit from the copyright law’s provisions for use of works in an educational context.

Principles 2 & 3: Risk management is an integral part of the organizational procedure and is part of decision making.
For many on a university campus, copyright is a daily consideration. For libraries, copyright issues arise in a multitude of contexts – from reserve and inter-library loan request processing to database license negotiation. For those working in information technology, copyright arises when streaming copyrighted content or when addressing infringement claims levied against students. A university can assist its staff of service providers by implementing a copyright risk management plan that ensures they all possess the same understanding of the law and defines what their responsibilities are to ensure institutional compliance. Such a plan promotes efficient and effective decision making.

Principles 4 – 7: Risk management explicitly addresses uncertainty; is systematic, structured and timely; is based on the best available information; and is tailored.
With the development of technology outpacing the enactment of law, a complicated and confusing situation concerning copyright in academia has evolved. Monitoring judicial response and scholarly exposition on academic copyright constitutes a full time job best filled by someone with the knowledge and experience to understand the changing environment and communicate these changes intelligibly and effectively to the university’s community of teachers, researchers, and students. An educational institution’s best course for managing copyright is employment of someone in this role who can read and understand the law, who appreciates the needs of the academic community, and who knows how to balance the interests involved in managing copyright.

Principle 8: Risk management takes human and cultural factors into account
Without human participation, we cannot have culture. And without fair use and other exemptions available to those in an academic community, continued creation of culture is stymied. As Lawrence Lessig, lawyer, professor, and avid copyright freedom proponent, stated in his book Free Culture:  “As we’ve seen, our constitutional system requires limits on copyright as a way to assure that copyright holders do not too heavily influence the development and distribution of our culture.” A risk management approach to copyright management promotes the need for human participation in the creation of new culture and helps assure that faculty and student scholars can continue to develop and distribute new works of knowledge.

Principle 9: Risk management is transparent and inclusive
An effective copyright management program on a university campus requires the participation of a variety of stakeholders: faculty, library staff, IT professionals, conference services staff, and marketing staff. By including representatives from various interest groups on campus, there is a greater likelihood of creating a unified understanding of copyright and fair use; in effect, all the team members are using the same playbook. Further, by involving various interested parties and charging them with the task of managing copyright on campus through education and cooperation, administration exhibits a commitment to being transparent in its policy-making.

Principle 10: Risk management is dynamic, iterative and responsive to change
As stated in Principles 4-7, understanding of the application and effect of copyright law in an environment of ever-changing technology and pedagogical delivery modes requires the full time commitment of an individual or dedicated staff. This approach to copyright management allows for an adaptive and timely response to developments in the law.

Principle 11: Risk management facilitates continual improvement and enhancement of the organization
Higher education enjoys a unique place in copyright jurisprudence. Copyright law has been tested and adapted to the needs of those in education. The work for hire doctrine has been tested in cases concerning instructional materials, the bounds of fair use have been defined through litigation concerning course packs, and now the TEACH Act and the DMCA are being considered more thoroughly in cases concerning online delivery of content to students. Given higher education’s place in the history of copyright law, it stands in a strong position to further define and expand the law for the betterment of not only the institution but for all citizens. Through the continued support of open access, testing of fair use, and push for exemptions for use of digital media in teaching, higher education will be an effective actor in the valiant effort to share knowledge.

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