D-Lib Magazine
March 2004

Volume 10 Number 3

ISSN 1082-9873

The Right to Preserve

The Rights Issues of Digital Preservation

Catherine Ayre
Loughborough University
<C.I.Ayre@lboro.ac.uk>

Adrienne Muir
Loughborough University
<A.Muir@lboro.ac.uk>

1. Introduction

The Copyright and Licensing for Digital Preservation (CLDP) project, which was funded by the Arts and Humanities Research Board, ran from September 2002 to March 2004. The project's aim was to investigate whether and how copyright legislation and licensed access to digital content affect the ability of libraries to provide long-term access to that content, and to suggest solutions for any problems identified. The objectives of the project were to:

• Assess whether the provisions of UK copyright legislation meet the digital preservation needs of the UK library community
• Identify if and how copyright legislation in other countries addresses this issue
• Investigate to what extent licensed access to digital material in libraries takes account of preservation needs, and identify examples of best practice in the UK and from the literature
• Investigate if and how publishers and other information providers are planning to achieve the provision of long-term access to digital material for libraries, including how access to third party information and software is being dealt with
• Make recommendations for amendments to UK legislation if appropriate
• Develop model licences for long-term access if appropriate
• Make recommendations on how legislators, information providers and libraries can work together to ensure long-term access to digital information

A literature review was carried out to investigate the rights issues of digital preservation methods, and provisions that are being made or could be made to resolve these issues. Questionnaire surveys were used to obtain an overview of stakeholder activities, plans and perceptions in connection with digital preservation. Separate questionnaires were sent to 1,000 libraries and 600 publishers in the UK, and 168 libraries (16.8%) and 82 publishers (13.7%) responded. Twenty semi-structured face-to-face interviews were held with librarians, publishers, legal experts, digital preservation experts and representatives of reproduction rights organisations to explore their views on the issues in greater depth. An invitation-only seminar was held to disseminate the interim results and to enable different stakeholders to discuss possible solutions to the issues identified by the research.

The CLDP Project has taken an international view of preservation and licensing. While it has mainly looked at the rights issues for preservation in the UK, the project has also investigated preservation clauses in copyright laws and publisher licences from other countries. This article looks at the general issues identified, from an international perspective.

2. Rights implications of digital preservation methods

The technical preservation strategies currently being developed have been discussed in detail elsewhere. These methods include migration (Waters & Garrett 1996, Feeney 1999, Wheatley 2001; Mellor, Wheatley & Sergeant 2002), emulation (Granger 2000; Rothenberg 1999, 2000, 2002) and the Universal Virtual Computer approach (Lorie 2001; Thibodeau 2002). To confirm what the potential rights implications of these methods would be, interviews were held with people involved in digital preservation research or practice.

All the digital preservation methods currently being developed and used will potentially require some sort of copying, as Table 1 illustrates.

Table 1: "Copying" requirements of digital preservation methods

One of the objectives of the CLDP Project was to determine whether existing copyright law, in the UK and elsewhere, allows libraries to copy digital publications to preserve them. Copyright law restricts the uses that may be made of copyright materials; for example, the Copyright, Designs and Patents Act 1988 (CDPA) (Great Britain 1988) includes various restricted acts including copying and adapting works. Database laws may prohibit the extraction and re-utilisation of all or a substantial part of the content of a database without the consent of the rights holder. Digital preservation methods will involve copying or possibly adapting digital materials, and these activities are usually restricted by copyright law. Another potential issue is that preservation agencies will need detailed information about file format specifications in order to migrate digital information or produce emulators. Since this information is itself copyright and potentially commercially sensitive, rights owners may be unwilling to allow preservation agencies to access and store this information. The preservation experts interviewed explained that it is by no means clear that the types of copying described in Table 1 will be allowed by law. Currently, there is no relevant case law, and preservation experts are anxious not to become test cases.

If preservation actions result in substantial changes to digital material, then moral rights may possibly be infringed. These moral rights include the right to be acknowledged as author or creator of a work, and the right not to have a work subjected to "derogatory" treatment.

Table 2 Rights issues of digital preservation methods

The following main rights issues were identified:

• Preservation agencies may need to copy publications repeatedly over time.

• Publishers may protect their publications with technological measures to prevent them from being copied. These measures are protected by copyright law in EU member states (European Parliament and Council of the European Communities 2001, s. 47-49).

• It may be difficult for publishers to grant libraries permission to preserve materials that have multiple rights holders. These rights holders may include other publishers, authors and artists, and the makers of third party software.

• If the "look and feel" or functionality of a publication changes as a result of preservation copying, authors and creators may feel that their moral rights have been infringed. A legal expert interviewed advised that such complaints would only be upheld if it could be proved that any changes made were derogatory and "impugned the reputation of the creator". It is unlikely that courts would accept claims for changes arising from preservation activities.

• With re-creation, it may be difficult to prove that preservation copies of publications are just copies, not completely new versions. Rights holders might argue that preservation agencies are adapting and re-publishing their copyright materials.

All these rights issues will need to be resolved if libraries are to be able to preserve their digital collections without fear of legal action.

3. Provision for preservation copying in existing laws and licences

Some countries' copyright laws contain exceptions that allow, in limited circumstances, libraries to copy materials from their collections for preservation purposes. The project investigated the copyright laws of twenty-five countries around the world to determine whether they contain relevant clauses. Some of the laws studied did not contain any relevant clauses. The following were the most relevant clauses found:

• The CDPA 1998 allows prescribed libraries and archives to copy materials to preserve or replace them (Great Britain 1988, Section 42). This clause applies to "any item" held by the library, so it does not exclude digital materials. However, items copied must be part of the library's "permanent collection", and legal experts interviewed felt it would be difficult to argue that materials libraries access remotely are part of their permanent collections. This is because libraries do not physically own copies of these materials and their subscriptions could end at some point in the future. The law also states that libraries may only make preservation copies of works "where it is not reasonably practicable to purchase a copy of the item", which may mean that libraries can only preserve digital publications when they are no longer on sale. Since they may already be inaccessible by this time, it may then be too late for preservation copying to take place.

• The US Digital Millennium Copyright Act (DMCA) (United States 1998, Title IV) allows non-profit libraries and archives to make up to three digital copies of materials they hold for the purposes of preservation, and to copy works into new formats. However, this is allowed only once the original format has become obsolete. Besek (2003) has explored the implications of the DMCA for digital preservation.

• The Canadian Copyright Act (Canada 1997) allows libraries to make preservation copies of their works in alternative formats. Again, this can only be done "if the original is currently in an obsolete format or the technology required to use the original is unavailable".

• Australia's copyright law (Australia 1968, s51A) allows libraries to make and communicate copies of copyright works that have been damaged or have deteriorated. This clause does not mention the format of either the original or the copy. However, digital copies clearly can be made, since the law states that copies may be "[made] available online to be accessed through the use of a computer terminal installed within the premises of the library or archives".

• In New Zealand, a recent Cabinet Paper (Tizard 2003) outlines proposed changes to the Copyright Act (Consolidation) 1994 (New Zealand 1994). This is intended to clarify confusion about how the existing, "technology-neutral" archiving exception applies in the digital environment. It recommends that the relevant clause, Section 55, be clarified to enable libraries to preserve works "by digital means"; "format shifting" will be allowed.

• The database laws in European Union Member States that have implemented the recent European Directive on the legal protection of databases (European Parliament and Council of the European Communities 1996) allow lawful users of a database to do anything "which is necessary for the purposes of access to the contents of the databases and normal use of the contents by the lawful user" (Article 6). One interviewee thought it might therefore be considered to be lawful for a user to copy a database to preserve it—if this were necessary to ensure that it could continue to be used. Again, however, copying a database in order to preserve it could probably only be done if the database already was, or was about to become, obsolete.

It would seem that none of the countries whose copyright laws were surveyed currently allow libraries to undertake all the copying that will be necessary for them to preserve their digital collections. Existing preservation exceptions have limited value because they do not permit any action to be taken until publications are already obsolete.

4. Solutions to the rights issues

4.1 Responsibility for digital preservation

Before the rights issues of digital preservation can be resolved, we first need to determine who will actually be taking responsibility for preservation. This is because the rights issues will differ depending on who is doing the preserving. For example, publishers may already own the necessary rights to preserve their material, but libraries will not own these rights and are likely to need to obtain permission to preserve. A substantial proportion of respondents to our library survey said they are taking or are planning to take responsibility for digital preservation. This does not mean that they will actually be carrying out preservation actions: while libraries have traditionally preserved their collections themselves, the difficulty and the resource issues of digital preservation may mean that few libraries will continue to do so. Hedstrom and Montgomery (1998) have also investigated this issue in Research Libraries Group member institutions. While there was no consensus among project participants about who should be responsible for undertaking digital preservation, the most frequently selected option was legal deposit libraries. However, project participants thought that other libraries and publishers would need to, and should, have some involvement in preservation.

4.2 Legal deposit

It seems likely that legal deposit libraries will bear the major responsibility for digital preservation. In the UK, the Legal Deposit Libraries Act 2003 (Great Britain 2003) is enabling legislation, which will be implemented over time by a series of further Regulations. UK legal deposit law should, over time, be extended to cover digital publications. Unusually, this law also includes provisions to allow legal deposit libraries to carry out activities necessary to acquire, preserve and make accessible digital publications. Other countries are increasingly extending their legislation. Initially, new laws tended to cover only tangible digital publications (for example, magnetic tape, diskettes and optical discs) or so-called "static" online publications. Legislation in some countries (for example, Norway) theoretically extends to all digital publications, but in practice, only certain types are collected or are collected on a limited basis. Other countries are currently taking a hybrid approach: legislation covers some types of material, with voluntary arrangements for other types. Australia is currently taking this approach. Sweden has legal deposit for physical format material, but is experimenting with collecting online, especially Internet, material. In the Netherlands all deposits of print and non-print material, including digital material, are carried out on a voluntary basis. Some countries, such as Sweden and France have enacted additional laws to address the needs of copying to depositories; others, such as Norway, are investigating those legal issues.

4.3 Other solutions to the rights issues of digital preservation

Legal deposit of digital material will not necessarily meet all preservation needs. Legal deposit arrangements apply to materials published in the country in question only, and do not apply retrospectively. Users may need access to material published in other countries, and other types of library may wish to preserve digital material. In the UK, further legislative changes would be needed to enable other libraries to undertake digital preservation. Our questionnaire respondents generally supported the suggestion that other libraries should be given permission to undertake preservation copying. However, interviewees were largely opposed to trying to change the law in the UK, since they felt that it would be too difficult and time-consuming. Interviewees thought that licensing solutions for the rights issues of digital preservation would be better than legal solutions, for both libraries and publishers, since libraries might be able to negotiate more generous agreements, and publishers would be able to retain more control over what is done with their materials. This is the situation in the UK; however, it is not clear whether stakeholder views would be different in other countries.

Our respondents thought that individual licensing was not an ideal solution to the rights issues of digital preservation, mainly since interviewees perceived it to be too time consuming. Collective licences giving permission for digital preservation were felt to be preferable: interviewees generally believed that collective licences would be more flexible than legal solutions, although they warned that it would be difficult to develop an agreement acceptable to all stakeholders. However, we found no evidence of relevant schemes in existence anywhere. It is not clear who would take responsibility for such schemes, although our seminar delegates felt that existing reproduction rights organisations would be well placed to do this in the UK. More than one interviewee suggested that hybrid licensing might be the best solution. This would contain some core clauses, but would also allow for some optional clauses—for example, defining the conditions under which access could be given to preserved publications.

The project explored various other options for resolving the rights issues of digital preservation. Rights metadata was thought to have a potential role to play, since it could contain information about what copying is allowed and also record changes made. Questionnaire respondents thought that metadata would be useful and were, in theory, willing to supply it. However, few publishers and authors currently do this, partly because metadata is expensive to implement and there is no compelling business case for it. Digital rights management systems may also help to record rights information and to control the use made of digital publications. However, these systems are little used at present and were said to need further development to make them more user-friendly.

5. Rights issues specific to licensed digital content

There are additional rights issues involved in preserving digital publications that libraries access remotely. If libraries do not physically own a particular publication, they may be unable to take any action to preserve it and may have to rely on the publisher to do so. Libraries have several concerns about the preservation of this type of material:

• Whether licence agreements include access to back files, that is, to materials published before the start of their subscription and materials published earlier in their subscription period.

• Whether libraries continue to have any access to materials if they cancel their subscription.

• Whether digital materials will continue to be available if publishers merge or cease operation entirely.

• In the latter two cases, how publishers will provide libraries with continuing access to their materials.

The CLDP Project investigated current provision for the preservation of remotely accessed digital content through the questionnaire surveys, and through a survey of licences available on publisher websites. At present, publishers' licences, at least in the form publicly accessible on their websites, often do not contain any relevant clauses, or contain only inadequate clauses. Some library participants also commented that they have not yet tested whether publishers are able to honour the commitments they have made in licence agreements. The JISC/NESLI model licence (NESLI 2002, 2.2.2) and the Liblicense Standard License (Liblicense 2001, XIII) contain clauses that address the preservation of electronic journals. These clauses define the materials to which libraries will have perpetual access, and the clauses state how this access will be provided. However, project participants indicated that there are many publishers who will not use model licences, and that some publishers who do use them omit clauses about preservation.

One way to ensure that remotely accessed digital content is preserved is for publishers to deposit their materials with trusted repositories. Seminar delegates suggested that publishers, ideally, should deposit their materials with third parties upon publication, with agreements about preservation that could not be overwritten should the publisher merge with or be taken over by another publishing company. Elsevier Science is one of a few publishers that have already made this type of arrangement with repositories. In 2001 Elsevier was involved with Yale University Library in creating a digital archive to ensure long-term preservation of and access to its electronic journals (Office of Public Affairs at Yale 2001). More recently, Elsevier has come to agreement with the Koninklijke Bibliotheek (KB) in the Netherlands in which KB will preserve Elsevier's publications and will also provide access to them. KB will only be able to provide access to walk-in users until the Elsevier publications are no longer available commercially, but KB will provide an interim service if there are long-term difficulties with Elsevier's servers (National Library of the Netherlands and Elsevier Science make digital preservation history 2002). Our CLDP project discussions did not address what constitutes a "trusted" repository. However, the Research Libraries Group has been involved in work in this area (Research Libraries Group 2002, 2003).

6. Conclusions

The Copyright and Licensing for Digital Preservation (CLDP) project has gone some way towards clarifying what the rights issues of digital preservation are likely to be and has recommended ways in which these issues can be resolved. However, it is clear that many additional issues still need to be clarified and resolved if we are to be able to preserve digital publications adequately. Stakeholders in each country need to decide who will be taking responsibility for preservation, then to define and solve the rights issues for that particular group. Discussion between the various stakeholders will be necessary for this to happen.

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DOI: 10.1045/march2004-ayre