CIP's Intellectual Property Handbook, which you can peruse at, Research Initiatives and Publications - Center for Intellectual Property - UMUC, includes as Chapter 9 a talk that Cliff Lynch gave as keynote at one of the CIP annual symposia a few years back. CIP recently posted Lynch's chapter online so that anyone can read it. It's a very easy read -- if you've heard Lynch speak, you know what a melodious voice he has, and as I read the talk, I could hear his voice in my head! It was almost like I was there at the keynote.
The talk is well worth your time and I heartily recommend reading it. His overall point is that the university must clarify its values regarding our role in the dissemination and preservation of scholarly communication, not just its production and providing access to it. As he does so well, Lynch weaves together discussion of fair use, orphan works, scholarly publishing and museum and library digitization projects (among other topics) and the choices we have in the digital environment to play more consistently on the same team. Take this passage, for example, where he reminds us that we theoretically have the ability to control every aspect from beginning to end (and repeat) of the scholarly communication cycle:
With regard to building upon the scholarly record, let me simply state at this point that, to a first approximation, the academy controls the scholarly record: it creates it, it represents the primary market for this record, and despite concerns about the current behaviors of scholarly publishers, at a very fundamental and long-term level, the rules surrounding the disposition and use of the scholarly record can, must, and will be under the control of the academy--though it must exercise the will to reassert this control in some very critical areas--and, ultimately, I believe that the values and practices surrounding the use of this scholarly record will be congruent with academic missions and values. This is a problem of values, of policy, and of will. It is not in essence a legal problem (other than to the extent that overcoming some past policy mistakes is made much more difficult by the legal impediments to undoing these choices).
He also speaks about the need to communicate with university counsel and university presses about being less risk-averse, to be more conscious of the need for congruence between our missions and the actions we take day-to-day. Of course, he acknowledges that there are stellar examples of campuses, presses, museums and libraries that are all pulling in the same direction, but he also notes there are some glaring examples of downright values conflict. Go have a look!