Totally obscure post about copyright compliance, risk and institutional repositories

Asleep yet? No, then read this.
This is a reply to an email on an Institutional Repository mailing list, asking about procedures for checking for copyright compliance when uploading post/pre prints.
Asleep? No?
Ok then, you asked for it.
I’ve been thinking hard about this. I’m relatively new to this process, and I take a risk management perspective to the problem. I’d like to run this past the collective consciousness.
The risks in the process of uploading material to an IR are:

  • uploading the wrong version of an article
  • not uploading an article that is legitimate to upload

The risk in the first case can be borne by the institution through the library, or devolved to he uploading party (the academic). I strongly think that the latter case is not good, as it chills academics to uploading work (“I don’t know anything about copyright! I don’t want to be responsible…”). It also tests safe harbour rules in which even though the academic may be explicitly responsible in policy, the administrator of the IR may be held liable as well (Kim Dotcom, anyone?) so it doesn’t really solve anything in practice.
In reality, the worst that I see happening is being issued a take-down notice. In fact, I have had a couple issued under the DMCA, and until the results of TPPA negotiation is made law I’m not sure of the jurisdictional relevance in NZ. In any case a prompt removal of the offending material satisfied all parties.
The pragmatic stance, I think, is to use available resources (Sherpa RoMEO) as a way of ensuring best efforts at compliance, and move the burden of more detailed checking onto those who make all the money, the publishers. If we make good efforts to make sure the material is compliant, I think our responsibilities are met.
On a side note, if Sherpa RoMEO is not correct, that is only our fault. If someone notices that it is incorrect or incomplete, then it is their responsibility to make sure it is updated appropriately. As information professionals taking on the shared work of keeping sources like this up to date is part of our remit. I tend to think the same thing about wikipedia. Don’t whinge: edit!
In the second case of not uploading compliant material, the risk until now has been mainly intangible (loss of immediate access material to the greater scholarly community, lack of preservation of material if publishers become insolvent, &tc.) With increased funder mandates, however, we stand to lose income as a result, so this risk is now much, much keener. At some point altmetrics will take IR downloads into account – and probably cut the gordian knot of what the impact of IR/OA resources have – and how well our IRs have been populated will become far more important. This could have effects on all sorts of things (e.g. QS rankings) that directly affect the financial bottom line of our communities.
Combining the risk profile of uploading vs. not uploading, I tend to think that the risk of not uploading is becoming more problematic than occasionally uploading non compliant material. If we take reasonable precautions to remain compliant, and respond professionally to take-down requests I think the risk of uploading non-compliant material is effectively mitigated.
OK. I’m putting my flame-proof underwear on: have at it.
Oh, now you’re asleep!

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