Illustration by Jørgen Stamp digitalbevaring.dk CC BY 2.5 Denmark
Introduction
The information provided in this section is intended solely as general guidance on the legal issues arising from various aspects of digital archiving and preservation and is not legal advice. It does not attempt to provide guidance on general legal issues which impact on the operations of libraries, archives and other repositories, as these are covered in a number of other reference works. It is written from a UK perspective and legislation in this area will vary from country to country. Although it principally covers UK and European legal issues, many of the topics will also apply in general terms to other jurisdictions.
An adviser–client relationship is not created by the information provided. If you need more details pertaining to your rights and obligations, or legal advice about what action to take, please contact a legal adviser or solicitor.
Legal issues
'those engaged in digital preservation must work within the law as it stands. This requires both a good general knowledge of what the law is, and a degree of pragmatism in its application to preservation work. Such knowledge enables the archivist to avoid the pitfalls of over-cautiousness and undue risk aversion, and to more accurately assess the risks and benefits of taking on the preservation of new iterations of digital work.' (Charlesworth, 2012, p.3)
Intellectual property rights (IPR) and preservation
Intellectual Property Rights (IPR) are a section of UK law that include patents, trademarks, copyright and associated rights - such as the moral rights of the author (see Stakeholders, contract and grant conditions) and performance rights. The preservation of digital materials often requires the use of on a range of strategies, and this creates IPR issues that are arguably more complex and significant for digital materials than for analogue media. If not addressed these can impede or even prevent preservation activities.
What is different about copyright and digital materials?
Among the range of IPRs, copyright has a specific importance when considering digital preservation actions. UK copyright law was developed with analogue material in mind. Traditional analogue materials are relatively stable, and well established legal and organisational frameworks for preservation are in place. The legal framework for undertaking preservation work on digital material is not as well developed and good preservation practices are not always recognised, or allowed for, by existing provisions in current legislation.
Copyright makes a distinction between ownership of the physical manifestation of a work, such as a book or work of art, and the separate right to reproduce it (the right to copy). Digital material by nature does not align to this distinction and can cause confusion when applied in the field. In the case of digital material, core repository practices such as providing access to users and routine preservation activities, often involve the deliberate or inadvertent creation of copies. Without appropriate rights clearance, licences or statutory exceptions these copies may constitute copyright infringements. Digital material therefore poses a different set of considerations for repositories holding this category of content. In addition, unlike physical material, digital material requires consideration of dependencies such as hardware and software which all have their own separate intellectual property considerations.
A second significant difference is the relatively short commercial and technological lifespan of digital material. The duration of IPR in digital materials extends beyond both commercial 'shelf life' and in almost every case the technology on which they depend. This forms a three-fold issue, in terms of procuring licenses to replicate content, licences for software to access content, and rights clearance of "abandoned" digital material, in addition to the added urgency of undertaking these actions.
Copyright exceptions
Although the Copyrights, Design and Patent Act (1988) limits possible preservation actions for digital material, exceptions for archives, libraries and museums have been introduced to address the unique requirements for preserving it. From a preservation perspective the most important provision (Intellectual Property Office, 2014) is the right to produce any number of copies required for the purpose of preserving digital material. Another important exception is the dedicated terminal exception, which enables a digital copy (i.e. one of the copies created under the preservation exception), to be made available on a dedicated terminal accessible to walk in users. These provisions only extend to items held permanently in the collection. The exceptions enables those institutions covered by the exemptions to hold copies of material in various file formats and thereby adhere to what is considered good preservation practice while staying within the law. Note that the copyright exception provisions do not overrule the moral rights of the author which must still be considered when undertaking preservation work.
The exemption to copy for preservation does not however take into account the dependent nature of digital material, and third party software dependencies can still form a barrier to preservation actions. This is particularly an issue observed in preservation strategies which rely heavily on retaining the wider technical environment of the digital objects in question. For example, emulation as a preservation strategy requires use of original operating systems and software external to the repository's permanent collection (see Preservation action). It is important to consider the additional costs and time of maintaining relationships with third party rights holders that follow from dependencies not covered in the exceptions.
Orphan works
For institutions looking to publish digital surrogates of analogue material, the Orphan Works Licensing Scheme run by the UK's Intellectual Property Office, as well as the EU Orphan Works Exception are likely to impact digitisation work and planning. The Licensing Scheme allows for both commercial and (in the case of heritage institutions) non-commercial digitisation of any type of material in which it has not been possible to trace the rights holders of the material following a 'diligent search'. The licence is a pay scheme limited to a seven year period and for use exclusively in the UK. Repositories need to plan and budget for renewal of such licenses. The EU Orphan Works Exception, on the other hand, is restricted to text based and audio visual works only (and artistic works as long as they are embedded in the former), and museums, libraries, archives, educational establishments and public broadcasters. Here, the benefit is that the diligent searches are self certified and the preservation copy of the work, created under the preservation exception, can be placed on line for non commercial uses, for example, thus assisting greatly with digitisation activities.
Access and security
Some of the additional complexity in copyright issues relates to the fact that digital materials are also easily copied and re-distributed. Rights holders are therefore particularly concerned with controlling access and potential infringements of copyright. Digital Rights Management technologies (DRM) developed to address these concerns and provide copyright measures, such as copy protection software for files and intentional physical errors to CD/DVDs, can inhibit or prevent actions needed for preservation. DRM technologies are also in themselves subject to obsolescence. These concerns over access and infringement need to be understood by organisations preserving digital materials when negotiating deposit agreements with rights holders, and addressed by both parties in negotiating rights and procedures for preservation. Having clear deposit procedures in place can mitigate future access issues (See Negotiating rights).
Web archives and legal deposit
The legal status of web archives and processes of electronic legal deposit vary from country to country: some governments have passed legal deposit legislation but restrict access solely to library reading rooms. In others there is no legal deposit legislation and collections are either built solely on a selective and permissions basis or are held in 'dark archives' that are inaccessible to the public. In the UK, legal deposit libraries have the right to gather and provide access to copies of all websites published in the UK domain. However, access to the collection is restricted to library reading rooms (See Milligan, 2015). Parallel to this, Web Archives maintained by The National Archives (UK) operate with a smaller scope relating to government publications and clearer statutory powers derived from public records legislation (see Other statutory requirements).
The US-based Internet Archive, probably the largest and most used web archive, has no explicit legislative permission to harvest websites or to publish them. It operates on a 'silence is consent' approach, deleting from their collections any websites that an owner requests to be removed. In contrast, the Library of Congress operates on a permission basis meaning that they have to seek explicit approval from copyright holders before harvesting or publishing their content.
Other statutory requirements
Other statutory requirements may also apply and influence preservation of digital resources.
The requirements of public records legislation and the related expectations of the Freedom of Information Act apply to government records including those in digital form. Statutory and regulatory retention periods apply to many digital records (e.g. for accounting and tax purposes). Although these are often of limited duration, it is notable that requirements for retention of digital records in some sectors (e.g. the pharmaceutical industry, social care and health records), are of increasingly long duration. In such cases long-term preservation strategies will apply as technological change will almost certainly affect access to such records.
Information may be subject to data protection laws and relevant privacy legislation protecting information held on individuals. In the UK, the Information Commissioner's Office oversees adherence to data protection and privacy issues.
Information can also be subject to confidentiality agreements. Privacy and confidentiality concerns may impact on how digital materials can be managed within the repository or by third parties, and made accessible for use. Data protection law also impacts on data movement outside of Europe - an important consideration for organisations investing in server space abroad.
EU rulings on an individual's right to have their personal information removed from Internet search engines in certain circumstances has a significant impact on the practices of organizations working with digital content sourced from the web (Koops, 2011). The obligation to avoid doing harm to individuals when saving their data over long periods of time is reflected in the principle of the right to be forgotten, through the implementation of Article 12 of Direction 95/46/EC in the case law of multiple European nations.
Stakeholders, contract and grant conditions
Some digital materials are the result of substantial financial investment by public funds (e.g. research councils) and/or publishers, and intellectual investment by individual scholars and authors. Each of these stakeholders may have an interest in preservation; the organisation preserving these will need to acquire permissions from them to safeguard and maximise the financial investment or the intellectual and cultural value of the work for future generations. Such interests could be manifested through contract, licence, and grant conditions or through statutory provision such as "moral rights" for the authors.
Investment in deposited materials by the repository
Holders of the material over many decades will almost certainly need to invest resources to generate revised documentation and metadata and generate new forms of the material if access is to be maintained. Additional IPR issues in this new investment need to be anticipated and future re-use of such materials considered. Where a depositor or licensor retains the right to withdraw materials from the archive and significant investment could be anticipated in these materials over time by the holding institution, withdrawal fees to compensate for any investment may be built into deposit agreements (See Negotiating rights).
Rights management
As outlined in Legal issues, it is important that licensing issues, copyright and any other intellectual property rights in digital resources to be preserved, are clearly identified and access conditions agreed with the depositor and/or rights holders. If the legal ownership of these rights is unclear or excessively fragmented it may be impractical to preserve the materials and for users to access them. Rights management should therefore be addressed as part of collection development and accession procedures and be built in to institutional strategies for preservation. The degree of control or scope for negotiation that institutions will have over rights will vary but in most cases institutional strategies in this area will help guide operational procedures. It will also be a crucial component of any preservation metadata (see Metadata and documentation) and access arrangements (see Access).
Negotiating rights
As the volume of digital materials grows and the complexity of rights and number of rights holders in digital media continues to expand, ad hoc negotiation between preservation agencies and depositors and between rights holders themselves becomes more onerous and less efficient. This is particularly problematic for any UK organisations or activities not covered by the new copyright exceptions.
Development of model letters for staff clearing rights, model deposit agreements, and model licences and clauses covering preservation related activities helps to streamline and simplify such negotiations. Institutions should seek assistance from a legal advisor in drafting such models and providing guidance for staff on implementation or permissible variations in negotiations with rights holders.
A number of institutions have developed models which can be adopted or adapted for specific institutions and requirements. The procedures outlined below are a synthesis of current good practice.
Recommended procedures
- Use legal guidance to frame your rights management policy and to develop documents.
- Develop model letters for rights clearance, model deposit agreements, model licences and clauses for preservation activities.
- If you are licensing material from third parties ensure they have addressed future access to subscribed material in the licence and have robust procedures to support this.
- Prepare reasoned arguments and explanations for your preservation activities suitable for external stakeholders such as rights holders who will need to be convinced of the need, and persuaded that their interests will be safeguarded. Remember their awareness of preservation issues may be low.
- Keep detailed records of rights negotiations. Make a schedule clearly identifying a list of materials deposited and covered by the licence. This will ensure that all that is believed to have been sent by the depositor has been received and may form the basis of an acknowledgement of receipt.
- Preserve information about rights and permissions for all your digital materials. Treat licences, schedules, and rights correspondence as key institutional records to be retained in fireproof and secure environments.
Summary of issues for licences and deposit agreements
The following provides a brief checklist and summary of legal issues which may need to be considered in relation to licences for preservation or deposit agreements for digital materials. Requirements will differ between institutions, sectors and countries and the list should be adapted to individual requirements. This list does not constitute legal advice and you must seek legal counsel for your specific circumstances.
IPR and digital preservation
A clause should be drafted to cover the following:
- Permissions needed for content.
- Permissions needed for associated software.
- Permissions needed for copying for the purposes of preservation. (A section which is applicable for material or organisations not covered by the copyright exceptions)
- Permissions needed for future migration of content to new formats for the purposes of preservation. (A section which is applicable for material or organisations not covered by the copyright exceptions)
- Permissions needed for emulation for the purposes of preservation.
- Permissions in respect of copyright protection mechanisms.
Access
- Permissions and conditions in respect of access to the material.
Statutory and contractual issues
- Statutory permissions and legal deposit obligations in respect of digital materials.
- Grant and contractual obligations in respect of digital materials.
- Conditions, rights and appropriate interests of authors, publishers and other funders.
- Confidential information and protection of the confidentiality of individuals and institutions.
- Protecting the integrity and reputation of data creators or other stakeholders.
Investment by the preservation agency
- IPR in any value added by the preservation agency.
- Withdrawal clauses (and associated fees).
Resources
UK legislation is regularly amended. To ensure that you are accessing the latest updates please refer directly to: http://www.legislation.gov.uk/
Exceptions to Copyright: Libraries, Archives and Museums
This guidance leaflet published by the Intellectual Property Office in 2014 sets out the exceptions applicable to libraries, archives and museums. It is relevant to anyone who works in or with libraries,
archives or museums in the UK, or copyright owners whose content is held by such institutions. In covers two significant changes in UK law which affect libraries, archives and museums. The first relates to making copies of works to preserve them for future generations. The second allows greater freedom to copy works for those carrying out non-commercial research and private study.
Intellectual Property Rights for Digital Preservation
http://dx.doi.org/10.7207/twr12-02
This DPC technology watch report was published by Andrew Charlesworth in 2012. The document does not cover recent legislation (such as The Legal Deposit Libraries (Non-Print Works) Regulations 2013 and the 2014 Copyright Exceptions for Libraries, Archives and Museums), but is otherwise a relevant introductory work. The report is aimed primarily at depositors, archivists and researchers/re-users of digital works. Intellectual property law, represented principally by copyright and its related rights, has been by far the most dominant, and often intractable, legal influence on digital preservation. It is essential for those engaging in digital preservation to be able to identify and implement practical and pragmatic strategies for handling legal risks relating to intellectual property rights in the pursuit of preservation and access objectives. (54 pages).
Aligning National Approaches to Digital Preservation
These 2012 Proceedings include two papers on legal issues: Legal Alignment by Adrienne Muir, Dwayne Buttler, and Wilma Mossink (pgs 43-74); and Legal Deposit and Web Archiving by Adrienne Muir (pgs 75-88). The focus of the first paper is on the key issues of legal deposit, copyright exceptions for preservation and access, and multi-partner and cross-border working and rights management; the second paper discusses the challenges of adapting legal deposit a mechanism designed for print publishing to the digital environment. National approaches to key elements of legal deposit framework and the legal issues arising from non-statutory approaches to collecting digital publications for long-term preservation are identified.(342 pages).
Cloud Storage Guidance Appendix Table 3 - Legal Issues
http://www.nationalarchives.gov.uk/documents/CloudStorage-Guidance_March-2015.pdf
Table 3 provided in section 7 as an appendix to the TNA Cloud Storage Guidance published in 2015, lists legal points in greater detail for each of the three key categories:
- Any legal requirements in terms of management, preservation, and access placed upon archives and their parent organisations, by their donors and funders via contracts and agreements or via legislation by Government (e.g. accessibility, availability, information security, retention, audit and compliance, Public Records Act, etc.);
- Those legal obligations relating to third party rights in, or over, the data to be stored (e.g. copyright, data protection); and
- The legal elements of the relationship between an archive and a cloud service provider or providers (e.g. terms of service contracts and service level agreements).
Archives and Copyright: Risk and Reform, CREATe Working Paper No.3
http://www.create.ac.uk/wp-content/uploads/2013/04/CREATe-Working-Paper-No-3-v1-1.pdf
pages 6-18 of this 58 page 2013 paper by R. Deazley and V. Stobo, cover Copyright and the Archive sector within the UK.
E-ARK Legal Issues Report: European Cultural Preservation in a Changing Legislative Landscape
This 2017 report by David Anderson of Brighton University and the E-ARK Project looks at legislation across Europe and its impact on Digital Preservation. The main part of this report covers the requirements of Directive 95/46/EC, which have been implemented by Member States in a variety of legislative instruments since the adoption of the Directive in 1995. These are set alongside the General Data Protection Regulation (GDPR) proposals currently under discussion between the Commission, the Council of Ministers and the European Parliament. As a final form of the text has not been agreed at the time of writing some of the conclusions reached in this report are necessarily tentative in nature.. (130 pages).
Legalities Life Cycle Management
https://www.timbusproject.net/portal/domain-tools/334-lehalities-lifecycle-management-tool/
A tool developed by the TIMBUS project which looks at digital preservation of business processes. The areas covered are IPR, IT contracting, Data Protection and other statutory requirements.
Mass Digitization of Cultural Heritage: Can Copyright Obstacles Be Overcome?
http://livestream.com/unc-sils/iPres-Pamela-Samuelson/videos
Keynote presentation from iPRES 2015 by Pamela Samuelson, professor of Law and Information at the University of California, Berkeley. Samuelson has published extensively on IPR and Cyberlaw. In this presentation she considers the role of "fair use" in approaching the challenge that Copyright pose. Samuelson speaks from a US legal perspective but many considerations are also applicable in the UK context. (2015) 56 minutes
iPresKeynote
References
Charlesworth, A.J., 2012. Intellectual Property Rights for Digital Preservation, DPC Technology Watch Report 12-02. Available: http://dx.doi.org/10.7207/twr12-02
Intellectual Property Office, 2014. Exceptions to Copyright: Libraries, Archives and Museums. Available: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/375956/Libraries_Archives_and_Museums.pdf
Koops, B., 2011. Forgetting Footprints, Shunning Shadows. A Critical Analysis of the "Right To Be Forgotten" In Big Data Practice. SCRIPTed, 8:3, 229-256. Available:http://script-ed.org/wp-content/uploads/2011/12/koops.pdf
Milligan, I., 2015. Web Archive Legal Deposit: A Double-Edged Sword. Available: http://ianmilligan.ca/2015/07/14/web-archive-legal-deposit-a-double-edged-sword/