Are Copyright Anxiety and Legal Chill Hampering Your Work?

This is guest post by Amanda Wakaruk, Jane Secker, and Chris Morrison.

Amanda Wakaruk has worked as a copyright librarian since 2015 and is currently the Acting Head, Open Publishing and Digitization Services at the University of Alberta in Canada. Jane Secker is Associate Professor in Educational Development at City St George’s University of London and Chris Morrison is the Head of Copyright and Licensing the Bodleian Libraries, University of Oxford. This blog post reports on a recent study the authors completed in order to explore copyright anxiety and legal chill in higher education in Canada and the United Kingdom (U.K.). 

Readers of this blog will know that authors are both users and creators of copyright-protected works. How confident are authors about their rights related to copyright? Is the fear of navigating copyright preventing non-infringing ‘user’ activities in higher education? What can we do to mitigate the damage to teaching and research caused by copyright anxiety and chill?

These are some of the things we wanted to learn about in the summer of 2023, and we are pleased to share part of the results of that research in the latest issue of the Journal of Copyright in Education and Librarianship (volume 8, issue 1). This project builds on a previous, more exploratory study about copyright anxiety in the general population in Canada and the U.S., published in the same journal in 2021. 

In the current study, we used a survey to ask more than 500 faculty members, librarians, and library workers in the higher education sector in Canada and the U.K. about their thoughts and feelings related to navigating copyright in the workplace. We also asked if their work had been hampered or prevented by copyright and, if so, how? Focus groups followed the survey, in part to establish whether an anxiety-creating scenario was likely to be legal chill, and in part to learn about the best paths forward for mitigating copyright anxiety and chill in this sector. 

As you will read in the article and Table 1, below, our findings indicate that those working in higher education are more worried about copyright than those outside the sector. 

Table 1: Respondents that Agree or Strongly Agree With Statements About Copyright Anxiety

https://doi.org/10.17161/jcel.v8i1.23058

	Percentage 2019, general population (U.S. and Canada)	Percentage, 2023, higher education (U.K. and Canada)
I get confused trying to navigate copyright issues.	34.6	55.0 (U.K.)46.4 (Canada)
I do not feel safe using copyright-protected materials that I do not hold the rights for.	50.9	29.7 (U.K.)39.5 (Canada)
I worry I do not know enough about copyright.	48	59.7 (U.K.)52.0 (Canada)

We also learned how copyright concerns can cause significant anxiety and emotional labor, which may lead to a legal chill that hampers teaching, research, and the provision of library programs and services. For example, instructors and researchers may use less appropriate materials due to copyright concerns, negatively affecting pedagogical and research impact. Librarians, often acting as copyright advisors, may experience heightened anxiety, leading them to provide more risk-averse guidance to users and decision-makers. Representative scenarios provided by the 28% of survey respondents who said they could describe a time that their work was hampered by copyright are provided in Table 3 from the article, below. It’s worth noting that 50% of respondents from the U.K. and 39% of respondents from Canada reported hampering due to copyright concerns.

Table 3: Impact of Scenarios Associated With Hampering or Avoidance of Activities Due to Copyright Concerns

https://doi.org/10.17161/jcel.v8i1.23058

Type of Impact (number of scenarios, in descending order)	Typical Scenarios
First choice of content was not used(79)	Not using preferred images in a class because they were not openly licensed.Creating new images for distribution on the Internet instead of navigating copyright considerations for preferred images.Finding the terms of use to not be supportive and had to assign alternate readings.Avoiding using third-party content in a publication because obtaining permission seemed onerous.
Restricted access to materials (e.g., research, archival, museums, etc.)(33)	Restricting access to digitized content even though it was unclear whether that was required by law.Having difficulty to assess actual risk involved with sharing archival materials and erred on the side of caution.Being unable to disseminate a journal article with students as an academic author because the publishing agreement doesn’t allow for this activity.
Compliance anxiety or potential legal chill[1](22)	Determining what is appropriate for distribution in the classroom.Including third-party content in a manuscript being submitted for publication.
Copyright chill (no indication of anxiety)(21)	Abandoning digitization projects because of the work involved with clearing copyright.Not using images of book covers for educational purposes.
Copyright anxiety or chill(18)	University council disagreeing with the librarian’s assessment of risk.Administrators not “backing up” educators’ or librarians’ decisions related to copyright.
Delay in the process(18)	Waiting for rightsholders or their agents to provide clearance information and/or permission to use a work for educational or research purposes.Having difficulty determining who the rightsholder might be for a work.
Copyright anxiety (no indication of legal chill)(9)	Finding the terms of use or copyright statements to be unclear.
Contract overrides statutory rights(7)[2]	Depositing published research in an institutional repository after the author has transferred rights to a for-profit publisher.

^[1] The phrasing “potential legal chill” describes when the legal defensibility of the reported use cannot be determined without further investigation. In all cases legal chill seemed very likely.

^[2] Only one of the respondents who provided a scenario describing a contract override situation was from the UK.

As with all research articles, the original data provides more opportunities for analysis than we could fit in the first peer-reviewed article coming out of this study. We are working on a second article, which will be more focused on exploring the reasons respondents’ identified as causing copyright anxiety and potential mitigation techniques, including the use of copyright literacy instruction and advocacy efforts directed at decision-makers in higher education. In the meantime, we encourage you to peruse the frequency tabulations from both the 2023 (UK/Canada) study and the 2019 (Canada/US) study.

Amanda Wakaruk, University of Alberta

Jane Secker, City, University of London

Chris Morrison, Oxford University

See also: Chris and Jane’s blog at copyrightliteracy.org