The law vs. librarians

You might think digital documents would be easier to secure and preserve than hard-copy documents. After all, time can turn a book to dust and bleed the color out of film, while the ones and zeros that make up digital documents and images can be preserved in a variety of media.

The downside is that those ones and zeros need to be interpreted by software, and if the software formats change, documents that haven't been converted could be lost forever. And formats are always changing. How many letters, poems and stories exist today only on 4.5-inch floppies that can't be read by any computer sold in the past 10 years?

But according to a recent report by the Library of Congress, there's another threat to the preservation of digital documents. Copyright laws designed for the old days of printed documents are no longer appropriate and, in fact, represent a significant obstacle to preservation.

For example, according to the 'International Study on the Impact of Copyright Law on Digital Preservation,' some countries, including the United States, impose a three-copy limit for replacement and preservation copies. The legality of libraries and archives making copies of publicly available online content is also unclear.

The report recommends a number of changes to U.S. and international copyright laws to help preserve digital works. However, according to at least one expert, new legislation might not be necessary, at least for preservation efforts in the U.S.

Peter Hirtle, intellectual property officer for the Cornell University Library, has written that U.S. courts have used a determination of 'fair use' to protect most such efforts. Unfortunately, 'you can't really know if your use is fair until a court determines if it is fair,' he wrote in an article posted on the Stanford University Libraries Web site (GCN.com/1161).

Still, Hirtle notes that when considering the preservation problems of motion pictures, the Senate concluded that given the great danger of loss, making copies for purposes of archival preservation certainly falls within the scope of fair use. 'We can hope that the courts might accept a similar argument for equally fragile digital information,' he wrote.

Hirtle urged libraries to press on regardless of the law. 'Good preservation practice has often existed in a legal gray area,' he wrote. 'Digital preservation resides in an even murkier legal gray area because of the fundamental need to copy digital information (one of the exclusive rights of the copyright owner) in order to preserve it. In addition, there is greater interest in preserving works that you may not own, particularly Web pages. The lack of legal certainty, however, should not prevent individuals and libraries from undertaking the socially beneficial task of preserving digital information.'

About the Author

Patrick Marshall is a freelance technology writer for GCN.

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