This study focuses on the copyright and related laws of Australia, the Netherlands, the United Kingdom and the United States and the impact of those laws on digital preservation of copyrighted works. It also addresses proposals for legislative reform and efforts to develop non-legislative solutions to the challenges that copyright law presents for digital preservation....
6.1. Summary of Findings...
6.1.2. The four countries surveyed in this report all have exceptions in their copyright and related laws that allow reproduction (and sometimes other activities) in connection with the preservation of protected works. However, many of the exceptions were enacted in an analog era and do not adequately accommodate all of the activities necessary for digital preservation. Some countries have begun the process of changing their laws to create exceptions to allow digital preservation by libraries, archives and other preservation institutions, but applying the preservation exceptions that currently exist to digital preservation is often an uncertain and frustrating exercise....
6.1.6. ...Legal reform is needed to ensure comprehensive preservation of the vast range of copyrighted materials now being made available in digital form....
6.2. Joint Recommendations...
Countries should establish laws and policies to encourage and enable the digital preservation of at risk copyrighted materials. These laws and policies should, at a minimum: ...
5. Allow preservation institutions to undertake preservation activities as necessary and in accordance with international best practices for digital preservation, including (a) Reproduction and retention of such copies as may be necessary for effective digital preservation; (b) The serial transfer of copyrighted works into different formats for preservation in response to technological developments and changing standards, and (c) The communication of works within the preservation institution for administrative activities related to preservation, or between the preservation institution and legally authorized third party preservation repositories as necessary for the purpose of maintaining redundant preservation copies to protect against catastrophic loss....
Comments
The problem in a nutshell is that digital preservation requires copying which is unlawful under most national copyright systems. Copying is necessary e.g. to make deposits in secure repositories, to multiply copies in order to reduce risk (on the LOCKSS principle), and to migrate content to new formats and media to keep it readable as technology changes. Hence, preservation of copyrighted works usually requires copyright reform.
However, there is an important exception: if a copyrighted work is OA in the BBB sense, that is, if it removes permission barriers in addition to price barriers, then the requisite copying is already permitted and legal reforms are unnecessary. In short, as I've long argued (1, 2, 3), OA facilitates digital preservation.
A quick skim and search of the report didn't turn up this point about OA, even though three of the institutions behind the report are strong supporters of OA (JISC, SURF, and the OAK Law project).
Update (7/18/08). I'm happy to say that my third bullet point was hasty. The report does make clear that OA facilitates preservation and makes statutory amendments unnecessary. See pp. 35, 43, 44, and 103. (Thanks to Jessica Coates.)
Posted by
Peter Suber at 7/17/2008 12:45:00 PM.
The open access movement:
Putting peer-reviewed scientific and scholarly literature
on the internet. Making it available free of charge and
free of most copyright and licensing restrictions.
Removing the barriers to serious research.
I recommend the OA tracking project (OATP) as the best way to stay on top of new OA developments. You can read the OATP feed on a blog-like web page or subscribe to it by RSS, email, or Twitter. You can also help build the feed by tagging new developments you encounter.
