Copyright and Digital Preservation

Before you read any further, please note that I am not an expert in copyright law…by a long shot.  What you’ll find below is a discussion about how copyright law affects digital preservation as I understand it.  Copyright law is very complex, especially in regards to dealing with the “new” issues presented by the digital environment.  Hopefully you will find the references I have listed below, and the items on the Resources page, useful in getting started.

The Problem with Copyright:

The absolute biggest barrier that copyright presents to preserving digital materials is the copyright owner’s exclusive right to reproduce and adapt a work.  Making copies of digital items and adapting them in various ways are generally the first steps of preservation — think of making copies to back things up, and the act of making changes to digital objects during digital format migrations.

Another impediment to digital preservation efforts are the dissemination restrictions that copyright law upholds.  Digital preservation is closely tied to access, yet this main goal of any preservation effort is restricted by current copyright law.  The glory of digital items is that they can theoretically be accessed from anywhere, and by multiple simultaneous users.  But copyright law hasn’t quite caught up to accommodate the digital environment and allow us to (legally) use and preserve digital items in the full capacity that the medium allows.

Determining the duration of copyright is somewhat confusing since it depends on when the work was created (or in some cases, when it was published versus when it was created).  Various acts of legislation over many years complicate the law because they have resulted in different copyright durations and renewal lengths.  Bitlaw provides a concise write up for the summary-inclined among us.

Exceptions to Copyright Law:

Libraries and archives follow the copyright provisions laid out by Section 108 of Title 17 (The Copyright Law) of the US Code (available here).  Libraries and archives are strong candidates for hosting digital preservation initiatives, so that’s why I’m focusing on them.  If the library or archive making the copies is open to the public or allows access to researchers from non-affiliated institutions, then it is not an infringement to make copies for preservation or replacement purposes under the conditions that:

  • the item is already currently held in the collections
  • the item “is damaged, deteriorating, lost, or stolen [not good for digital items, as it will be too late once damage has occurred] or if the existing format in which the work is stored has become obsolete.
  • the copy is not distributed in a digital format outside the walls of the library (italics added to emphasize the impracticality of this rule)

Additionally, libraries and archives are allowed to make up to three copies of unpublished works for preservation purposes, and up to three copies of published works for replacement purposes.  So, even with the compromises made for libraries in Section 108, there are problematic implications for digital preservation.  Since digital preservation is so closely tied to accessibility, libraries would be extremely limited in how they can preserve – and then share – digital material.

There is hope; people are aware of these limitations.  In March 2008, the Section 108 Study Group released a report of suggestions to improve Section 108 and advance it into a more digitally-oriented mindset.   These suggestions include allowing copies of works to be made prior to damage or loss; make copies of publicly accessible websites with an opt-out option (see the Internet Archive in the following section); and lift the three-copy preservation or replacement limit.

And let’s not forget about Fair Use.  I won’t get in to it deeply here, but it’s a doctrine within Title 17 (Section 107) that actually reduces the copyright holder’s exclusive rights.  It allows people to reproduce parts of copyrighted works.  It is a totally vague and subjective doctrine, and seems to be more of a defense against infringement lawsuits rather than a right.

An Aside about Copyright and the Web:

There are many web-archiving projects, the resulting files of which will need to be included in preservation processes.  Like content that is created off the web, web-based content is also protected under copyright law unless it is stated otherwise.  The Internet Archive’s approach to harvesting web content for archiving is to collect everything from which its crawlers are not excluded, and to provide an opt-out policy for anyone who specifically does not want to be included.  While the legality of this method is up for debate, the Internet Archive has avoided many infringement suits via their “willingness to respect the wishes of those copyright owners who want to limit and control the reproduction of their copyrighted works” (Hirtle, 2003).

Since the introduction of Web 2.0, web content on a given web page may also have more than one creator.  So, obtaining copyright permission for preservation purposes may be more challenging than contacting one person.  In the case of blogs, for example, blog writers do not own the copyright to comments other people have left (Biederman & Andrews, 2008).  To take this one step further up the difficulty scale, think of the challenges introduced by anonymous comments with no clear author.

Additional Restrictions:

Outside of the general US copyright law that is applied to a work, we must also take into consideration the licensing restrictions that may be associated with subscription materials.  These will likely have their own rules and implications for preservation, especially given that which is made more clear by the Digital Millennium Copyright Act (DMCA).  The DMCA prohibits “circumventing technological access controls to obtain access to copyrighted works,” meaning if access to the work is password-protected, you cannot create a work-around to allow others to get to it (Besek, 2003).

No Real Precedents:

Finally, I think another basic challenge with copyright is that there are no precedents for many of the issues that digital preservation activities bring to the surface.  This is especially true in regards to the Fair Use exemptions, which are judged on a subjective basis.  The Fair Use exemption could be a saving grace for preservation activities, but until it has proven to be so in an infringement challenge or lawsuit, it is a very big risk to assume that this can be the case for all instances.  It’s likely not the right preservation decision to wait until copyright law catches up with the needs of our digital environment.  So…who wants to try first?

Biederman, C. J., & Andrews, D. (2008, May 1). Applying copyright law to user-generated content. Los Angeles Lawyer, 12.
Besek, J. (Jan 2003). Copyright issues relevant to the creation of a digital archive: A preliminary assessment.  CLIR.  Retrieved Jan 5, 2010 from http://www.clir.org/pubs/reports/pub112/contents.html
Hirtle, P.B. (2003).  Digital preservation and copyright.  Retrieved Jan 5, 2010 from http://fairuse.stanford.edu/commentary_and_analysis/2003_11_hirtle.html
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