Study: Reform copyright law to save digital works

Libraries, archives and other institutions currently are hampered in preserving digital works by copyright laws geared toward more persistent, physical works.

Although digital works are ubiquitous and easily duplicated, they are also ephemeral and at risk of disappearing unless preservation efforts begin soon after they are created, according to a study by the Library of Congress and three international partners.

The library's National Digital Information Infrastructure and Preservation Program and organizations in Australia, the Netherlands and the United Kingdom called for reform of national and international copyright laws to encourage and enable preservation of such works.

'Traditional works of authorship are increasingly created and disseminated to the public in digital form,' the authors wrote in the study, titled 'International Study on the Impact of Copyright Law on Digital Preservation.'

'There is also a growing trend to convert analog material to digital form so that it can be easily and efficiently stored, transmitted and accessed,' they wrote.

Libraries, archives and other institutions are hampered in preserving those materials by copyright laws that are geared toward more persistent, physical works. The study recommended that laws permit institutions to preserve works according to international best practices, which include making copies for administrative and technical purposes, migrating works to different formats as technology changes, and maintaining backup copies at multiple institutions to protect against catastrophic loss.

In addition to the Library of Congress, the United Kingdom's Joint Information Systems Committee, the Open Access to Knowledge Law Project at Australia's Queensland University of Technology and the SURFfoundation in the Netherlands participated in the study. They reviewed current laws in the four countries and made recommendations for changes.

'New forms of authorship, such as Web sites, blogs and user-generated content of all kinds, are flourishing in the dynamic environment of the Internet,' the report states. 'These new works reflect the world's culture as much as their analog predecessors.'

Yet the technology that encourages the production of such works threatens to shorten their lifespan.

'Digital information is ephemeral: It is easily deleted, written over or corrupted,' the report states. 'Because information technology, such as hardware, software and digital object formats, evolves so rapidly, it can be difficult to access and use digital materials created only a few years ago. Countless born-digital works are created every day, but countless born-digital works are also lost every day as they are removed, replaced, superseded or left, forgotten, in obsolete formats and media. Digitized and born-digital materials are an important part of the world's cultural heritage, but unless active steps are taken to preserve them, they will be lost.'

Recommendations for changes in U.S. law mirror those in a report an independent study group issued in March. The recommendations for improving digital preservation include:

  • Lifting the three-copy limit for replacement and preservation copies, which is not feasible in a digital environment, and using a more flexible standard such as 'a limited number as reasonably necessary.'
  • Allowing qualified libraries and archives to proactively preserve works in their collections that are at risk, provided that they restrict access to the preservation copies.
  • Allowing libraries and archives to copy publicly available online content for their collections and make that content available to on-site users and 'after a reasonable delay to protect the economic interests of rights holders ' to remote users. Copyright holders should be allowed to opt out of those collections except where collection of the content is a matter of fundamental public policy, such as government and political Web sites. Holders also should be protected from excessive crawling of their sites that impairs their ability to function.
  • Allowing libraries and archives to make replacement copies of works that are fragile, even if those works are not yet damaged or deteriorating.
  • Allowing libraries and archives to use outside contractors to assist in authorized preservation and replacement activities, as long as the contractor is providing copies only to the institution.
  • Extending copyright exceptions to museums.
  • Amending the mandatory deposit provisions to allow the Library of Congress to require deposit of the version of digital works most suitable for its needs and make a limited number of copies of deposited works as necessary to preserve them and make them available to users on the library's premises.

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