Ownership and copyright are not simple in the digital preservation world, where migration copies, archival copies, derivative versions, and other states of an object exist, changing over time. (For more on copyright, see Case in Point below.)
Meeting legal requirements for preserving digital objects requires careful, comprehensive, ongoing approaches that avoid risk to the organization or objects, and that enable effective mitigation as concerns arise. Thorough procedures, protocols, and documentation strategies provide the most effective organizational response for legal issues.
0101 Implementing policies in a digital environment is a complex technological problem that requires careful failsafe protections to ensure that exceptions can be handled safely.
$$$$ The resource implications are a product of the level of risk that each institution is willing to assume. At a minimum, each institution is likely to want to determine if the material it is seeking to preserve is in the public domain, or if someone other than the institution owns the copyright. It may want to try to locate the copyright owner and license (perhaps at a cost) those rights needed to preserve a work. Alternatively, it may conclude that preservation activities are authorized by “fair use” – but this normally involves some legal advice and the support of senior administrators (who must agree with the risk assessment inherent in any fair use argument).
At some point in every digital preservation program, information is copied. Copying might occur as part of one of the digital preservation strategies, or it could merely be the process of copying digital information from a storage medium into the RAM of a computer. The exclusive right to copy an item, however, is one of the rights given to an author by copyright law. The author has other exclusive rights, including the rights to:
|>>||prepare derivative works based upon the copyrighted work|
|>>||distribute copies of the copyrighted work to the public|
|>>||perform some copyrighted works publicly|
|>>||display some copyrighted works publicly|
|>>||in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission in the United States|
|>>||control access to a work protected by the use of a technological measure|
Digital preservation strategies may impinge on these rights. Migration, for example, may be a violation of the copyright owner’s right to prepare a derivative work. Making a digital work broadly available may impinge on the copyright owner’s distribution, performance, and display rights. Preserving a password-protected or encrypted file may require violating the copyright owner’s exclusive right to control access.
A note about jurisdiction
The discussion in this section describes American law, but similarly laws are in place in many other countries. Thanks to the Berne Convention for the Protection of Literary and Artistics Works, copyright fundamentals are much the same around the world. Further efforts to standardize and harmonize copyright regulations through treaties and trade agreements are also underway. Although the specific terms and exemptions discussed in this section may not necessarily apply outside of the United States, it is likely that similar legislation is in place or is being considered in each country.
The theoretical legal risk to a digital preservation program is heightened by the fact that almost everything today is copyrighted. There are two primary requirements for copyright protection. First, an item must be an original expression. Both of these terms are important. A work that is not original cannot be copyrighted. A digital copy of a document that is in the public domain, for example, would lack originality (though not skill and effort) if the purpose of the copy is to replicate as accurately as possible the original. As a consequence, the copy would not be copyrighted. Second, only the expression can be copyrighted – not the ideas behind the expression.
The second primary requirement necessary to secure copyright protection is that a work must be fixed in a tangible medium of expression. This includes computer memory, so websites and other works that exist only on the Internet are copyrighted.
No action beyond “fixing” an original work is required to make it copyrighted. Since 1989, there has been no need to include the copyright notice © or any indication of the copyright owner on the work. There is also no need to register the work with the Copyright Office (though the damages available to the copyright owner increase if a work is registered).
Given that almost everything is copyrighted and the copyright owner has extensive exclusive rights, how can digital preservation occur without risking copyright infringement? Fortunately, the copyright law in the US has several exceptions to the exclusive rights of the copyright owner. Three in particular are potentially important in digital preservation.
If the digital file you are interested in saving is a computer program, Section 117 of the United States copyright law can help. This section states that in spite of the copyright owner's exclusive rights, it is permissible for you to make a copy for archival purposes of a copyrighted computer program. A computer program is defined in the law as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." The law allows you to make a copy of a program that you legally own and even adapt it to run on a more modern machine (if you can), but you cannot share the modified program with anyone else. Only the computer program itself is covered; the section does not authorize the reproduction or adaptation of files created with the program.
Section 108 gives libraries and archives the ability to make some copies, including preservation copies, without violating the exclusive rights of the copyright owner. In order to be able to take advantage of the exemptions, certain ground rules must be met. The library or archives must be open to the public; the copying cannot be for “direct or indirect commercial advantage;” and any copies made must carry a notice of copyright.
Assuming that those conditions are met, libraries and archives can engage in limited copying for preservation purposes without fear of infringement. However, certain other requirements apply:
|>>||You must own a copy of the original.|
|>>||The copying must be solely for preservation or security.|
|>>||The original must be “damaged, deteriorating, lost, or stolen,” or the existing format in which the work is stored is obsolete.|
|>>||A reasonable investigation reveals that an unused copy cannot be obtained at a fair price.|
If all of the above apply, then Section 108 allows the library or archives to make three copies of the work. The copies may be digital, but if they are, then access to the digital version must be limited to the premises of the library or archives. The material cannot be made generally available on the Web.
The third exemption libraries and archives can use for their digital preservation programs is Section 107, Fair Use. Fair use is a judicially interpreted doctrine decided on a case-by-case basis. You have no assurance that any specific use is fair until a judge tells you it is fair. And while fair use is supposed to favor reproduction done for the purpose of teaching, scholarship, or research, not all copying done for such purposes is automatically fair.
In determining whether a use is fair, a court must consider no less than four factors. They are:
|>>||the purpose of the use (including whether the use transforms the original into something new or merely replicates the original)|
|>>||the nature of the original material (whether it is primarily creative or factual)|
|>>||the amount of the original duplicated|
|>>||the effect on potential market or value of the original|
Given the social benefit of preservation, it seems likely that the courts would tolerate a preservation program that sought only to preserve digital information but did not seek to distribute it to others.
Any digital preservation program is likely to exist in a gray area of legality. It is important for those charged with digital preservation responsibilities to understand that, while many actions may be acceptable, the area in which they can work with legal certainty (primarily the exceptions afforded by Section 117 and 108) is extremely limited. It is imperative, therefore, that digital preservation programs remain in close contact with their institution’s legal advisors to ensure that they do not place their institution at an unacceptable level of risk.