Digital Preservation and Copyright

By June M. Besek

This article by June M. Besek, Executive Director, Kernochan Center for Law, Media and the Arts, Columbia University Law School, New York, highlights the difficulties in preserving digital works, created today and gone tomorrow, for future generations. Both their nature and current copyright laws create a challenging task for preservationists.

Before the digital era, preservationists acted on perceptible evidence of deterioration such as a fold test to detect brittle pages or the smell of vinegar signaling acidifying film. Digital material is often deleted or replaced before a preservationist can even get to it. (Photo: wikipedia.org)

Can you imagine a world without Homer’s Iliad and the Odyssey? Beethoven’s Ninth Symphony? Twain’s Huckleberry Finn? Van Gogh’s Irises? Books and letters, photographs and drawings, music and movies are windows on history and culture. They inform and entertain us, aid in understanding the past and serve as a basis for future scholarship and creativity. Such works of authorship have remained available over centuries thanks to the preservation efforts of libraries, archives and museums. But now, many books, letters, photographs and other works are born digital, and the Internet has fostered new forms of authorship like blogs and personal web pages. Unfortunately, many digital works disappear every day. They are removed, replaced or superseded and are thus forever lost to future generations.

Systematic efforts to preserve digital materials are lacking in part because of copyright laws. Digital preservation inevitably entails copying. Many countries have exceptions from copyright to enable preservation activities of libraries, archives and other preservation institutions, but those exceptions have not kept pace with digital technology.

Before the digital era, preservationists acted on perceptible evidence of deterioration such as a fold test to detect brittle pages or the smell of vinegar signaling acidifying film. Digital material is often deleted or replaced before a preservationist can even get to it.

Copyright issues

How does digital preservation create copyright issues? In the past, preservation of analog works was generally a passive activity, requiring only occasional interventions to repair or restore hard copies of books, films, sketches, drawings, photographs, etc. Such actions were triggered by perceptible evidence of deterioration: a fold test can detect brittle pages, the smell of vinegar signals acidifying film. Digital works, however, are often short-lived because they can be deleted, written over or corrupted rapidly and without advance warning. Preservation efforts must begin soon after they are created or acquired. The problem arises in that any contact with a digital work – cataloging, maintenance, migrating the works to new formats – involves making copies. In addition, digital preservation practices require creation of multiple redundant copies for retention in different locations to protect against losses due to fire, flood or other catastrophe. Use of works in preservation archives can implicate the reproduction right as well as the rights of distribution, making available, public performance or public display.

Most national laws that provide exceptions for libraries, archives and other preservation institutions were created in the analog era, and often have limitations that are unworkable when applied to digital works. For example, some national laws allow libraries and archives to make up to three copies of a work for preservation and replacement, but three copies are insufficient to ensure digital preservation. National laws may require a library to wait until there is perceptible degradation of a work before making replacement or preservation copies, but in the case of digital works, by the time the damage is perceptible, the work may be irretrievably lost.

Copyright exceptions in many cases only allow preservation institutions to copy and preserve those works already in their collections. But works once distributed in hard copy form are now created and marketed electronically, and some are available only for viewing or streaming, but not in copies that can be retained. Websites, blogs and other forms of user-generated content reflect current culture, but if preservation institutions cannot acquire these materials for preservation, the opportunity to study and enjoy them will be lost forever.

WIPO addresses the problem

On July 15 WIPO held a workshop on digital preservation and copyright to draw attention to the critical need for digital preservation and the ways in which copyright issues might be addressed. The workshop brought together librarians, digital preservationists and copyright experts from around the world to address the intersection of copyright laws and digital preservation. Panel discussions focused on preservation activities in three areas: e-journals, the Internet and newspapers. The International Study on the Impact of Copyright Law on Digital Preservation, an independent report which focuses on the copyright and related laws of Australia, the Netherlands, the U.K. and the U.S., servedas a backdrop for the discussions.

The workshop highlighted a number of different preservation projects around the world and the ways in which they address copyright concerns. Some simply focus on public domain materials to avoid copyright problems. Others such as the Internet Archive take advantage of existing exceptions like fair use. Still others such as Portico and Koninklikje Bibliotheek’s e-Depot rely on cooperative arrangements with rights holders.   The existing preservation programs are very valuable: they not only save important cultural material but also lay the groundwork for developing digital preservation best practices. But the inevitable conclusion is that they are incomplete solutions that address only a fraction of born digital works.

Legal reform for digital preservation

Legal reform may be necessary to give preservation institutions the ability to undertake comprehensive digital preservation. The International Study suggests allowing preservation institutions to copy all categories of works in digital form proactively rather than waiting for demonstrable evidence of deterioration, and eliminating the three-copy limit. It also recommends that national laws enable comprehensive preservation through some combination of legal authorization to preservation institutions to harvest publicly available Internet content, incentives for contractual arrangements to support preservation and legal deposit mechanisms. 

Such legal reform, however, will require a careful balancing of competing interests. While it is important that preservation institutions have copyright exceptions sufficient to enable digital preservation, it is equally critical to retain limitations necessary to protect rights holders. The three-step test of the Berne Convention, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty allows exceptions and limitations only in “certain special cases” that do not “conflict with a normal exploitation of the work” and do not “unreasonably prejudice the legitimate interests” of the rights holder.   Appropriate security and limitations on access will be necessary to ensure that preservation institution activities will not unreasonably prejudice rights holders’ interests or undermine their markets. In addition, requiring the implementation of best practices for digital preservation is fundamental to ensuring long term societal benefit from preservation exceptions. Carefully crafted library exceptions can meet the requirements of the three-step test, but creating the right balance is a challenging task. 

Some countries are already working on legal reform for digital preservation. The workshop discussed the U.K. Gowers review, the U.S. Section 108 Study Group Report and recent changes to Australian copyright laws. In addition to questions regarding security and the scope of access, workshop participants also cited the role of contracts and of technical protection measures in creating potential obstacles to digital preservation.

Legal reform is only one piece of the puzzle. Cooperative arrangements among preservation institutions and rights holders remain essential. They have played an important role in preservation initiatives to date and it would be counterproductive if legal reforms were to undermine rather than encourage such efforts. 

Copyright laws are not the only obstacle to digital preservation. Adequate funding is necessary, as are technical tools and a consensus as to best practices. Policymakers must be persuaded of the critical need to dedicate resources to digital preservation programs. Addressing the copyright issues would be an important step toward ensuring comprehensive digital preservation.