1. Copyright and Digital Preservation

2. Overview 1.What is copyright and copyright infringement? 2.Relationship between preservation and copyright 3.Difference between analogue and digital preservation 4.‘Best practice’ in preservation 5.How copyright law deals with preservation copying 6.Current Copyright Act 1968 7.Proposed new exceptions under Copyright Amendment Bill 2006 8.Analysis of whether existing and proposed exceptions accord with best practice preservation copying 9.Practical measures to minimise risk of infringing copyright in undertaking preservation copying.

3. Legal risks to be managed in digital preservation: Ownership of the content – copyright Ownership of the content – copyright Legality of content and using the content Defamation, privacy, breach of confidentiality, content regulation, ICIPs, breach of contract Legality of content and using the content Defamation, privacy, breach of confidentiality, content regulation, ICIPs, breach of contract Duty of care over physical items Duty of care over physical items

4. WHAT IS COPYRIGHT? The exclusive right to copy and otherwise use copyright material (eg literary, dramatic, musical or artistic ‘works’; films, sound recordings and published editions) and to stop other people copying your copyright material. The exclusive right to copy and otherwise use copyright material (eg literary, dramatic, musical or artistic ‘works’; films, sound recordings and published editions) and to stop other people copying your copyright material. “Bundle” of exclusive rights “Bundle” of exclusive rights  reproduce /copy  communicate (eg internet/intranet /publicly accessible collections database)  make an adaptation Copyright infringement: using or authorising the use of Copyright infringement: using or authorising the use of  all or any “substantial part” (an important, essential or distinctive part) of copyright material  in one of the ways exclusively reserved to the copyright owner  without permission / licence of copyright owner

5. Copyright infringement Libraries and cultural institutions and their patrons/users will infringe copyright where they photocopy, digitise, download, or otherwise reproduce or use copyright material from the collection unless:  they own the copyright/IP in information /content in item  the material is no longer protected by copyright (ie, public domain material)  the copying is permitted by an exception in the Copyright Act (eg, one of the library and archive exceptions)  libraries have direct permission/licence of copyright owner

6. PRESERVATION & COPYRIGHT Why make preservation copies? Why make preservation copies?  to provide access  ie, to ensure historically, scientifically and socially valuable material continues to be available for researchers, students, government, academics, life-long learners - i.e., there is a general public benefit. Types of material held in collections covers a range of works protected by copyright: Types of material held in collections covers a range of works protected by copyright:  literary work - manuscripts, articles, books, websites & blogs – literary work and sometimes published edition copyright (for e-publications and online subscriptions) plus protection for  artistic work – images, digital photos, graphics, thumbnail images – artistic works  cinematograph film – VHS, DVS, 35mm film, computer games  sound recordings & musical works – CDs, MP3’s, vinyls

7. Difference between traditional preservation /conservation and digital preservation  Analogue / print based preservation - focus on preserving “artefact” as well as content  Digital preservation - preserving integrity of information /content and retaining the ability of clients to retrieve, display and otherwise use materials in face of constantly changing technology

8. Analogue / print based materials  Tangible artefacts/objects – libraries /institutions acquire and own a discrete information object – object accessioned into and forms part of the collection  Actual artefact vulnerable to physical deterioration  Focus mainly on maintaining the “artefact” in order to preserve the content ……. therefore copyright not always exercised

9. Digital materials Comprised of both tangible (eg, DVDs, CDs-Roms) and intangible artefects (eg, websites, JPEG music files, wav and tiff files [music and images]) Comprised of both tangible (eg, DVDs, CDs-Roms) and intangible artefects (eg, websites, JPEG music files, wav and tiff files [music and images]) Have a relatively short lifespan compared with analogue material as Have a relatively short lifespan compared with analogue material as  fragile & vulnerable to deterioration/decomposition  technological change – media & hardware obsolescence ……..requiring:  Refreshment of digital media by copying it onto new formats  Migration: transfer of data to new storage media and new formats (ie, format shifting) within a short time-frame from original creation  Emulation using contemporary software/hardware technologies to recreate obsolete hardware/software experiences ….therefore digital preservation involves exercise of copyright - reproduction (incl digitisation), adaptation, communication

10. Rights in content and associated software may belong to number different individuals /organisations Rights in content and associated software may belong to number different individuals /organisations Digital info may be protected by technology to prevent unauthorised copying Digital info may be protected by technology to prevent unauthorised copying  TPMs – digital locks, encryption, access controls Many institutions may only have right to access rather than “own” digital objects. Many institutions may only have right to access rather than “own” digital objects. Can be easily compressed - entire item usually copied/reproduced rather than part of item. Can be easily compressed - entire item usually copied/reproduced rather than part of item.

11. What is 'best practice' in preservation? “Best practice” can be assessed by looking at: “Best practice” can be assessed by looking at:  what should be copied? – ie preservation priorities  how the material should be copied? – technical aspects

12. What should be copied? What should be copied?  out of print  fragile or vulnerable  of high research value  rare/unique and/or valuable  Heavily used (ie, prospective/preventative copying)

13. analogue preservation - technical aspects analogue preservation - technical aspects  Copies to faithfully and as accurately as possible reproduce original…no alteration, tampering, restoration  Materials are vulnerable to generational loss  Compression can be a constraint around making high quality copies– solution is to make multiple copies  Often involves making intermediate copies (especially AV material)

14. Digital preservation - technical aspects Digital preservation - technical aspects  Copies to faithfully and as accurately as possible reproduce original…no alteration, tampering, restoration  Data compression fundamental constraint around reproduction of high quality copies  Can be overcome by gradual compression of content via multiple copying

15. Digital preservation 3 stages of compression (3-5 copies ) Stage 1 – digital surrogate / ‘master duplicate’  UNESCO – Guidelines for the Preservation of Digital Heritage  Australian standard for management of essential business info and software BOTH recommend at least 3 digital surrogates be made Stage 2 – working /distribution copy Stage 3 – browsing/acess copy

16. HOW DOES COPYRIGHT LAW TREAT PRESERVATION COPYING?

17. Current preservation exceptions Right to preservation copying limited by Right to preservation copying limited by  type of user – cultural institutions, not general right  format of material – tangible/permanent materials  type of collection item  Pres copying - “ originals” (s 51A(1)(a), ss110B(1)(a) & 110B(2)(a))  Replacement copying - published materials not commercially available where material lost, stolen, damaged, deteriorated (s51A, 110B)  Other material – pres copying requires licence/permission  type of use  Copying and digitisation  Communication / providing access – limited rights

18. Q2. Is the use permitted by a copyright exception? YES NO The current library and archive exceptions allow: 1.Preservation copying {s 51A(1)(a), ss110B(1)(a) and 2(a)} – ‘Originals’ only 2.Replacement copying {s51A, 110B} Published works, sound recordings and films IF: * item lost, stolen, damaged, deteriorated * replacement copy not otherwise commercially available Q3. Are you a Key Cultural Institution? Q1. Does preservation involve copying ? YES NO Proposed “Significant works” exception (ss 51B/110BA) allows: 1 copy (ie, a “single reproduction”) of most collection material (including digitisation) IF * Item not otherwise commercially available (taking into account availability of electronic copy) Proposed flexible dealing (s 200AB(1) & (2)) if: operating / maintaining library - usual services no commercial advantage IF…… three-step test can be met Commercial / for profit use = seek permission / licence from copyright owner. OTHER USES? eg. – multiple copies; communicating single reproduction or multiple copies (eg, online or on dumb terminal); providing copies for access

19. Proposed new exceptions – Copyright Amendment Bill 2006 (CAB) 1.Special exception for Key Cultural Institutions reproducing significant works (ss 51B, 110BA, 112AA) Advantages  Not purpose-specific  Allows a broader range of works to be copied Limitations:  Not relevant to many cultural institutions  Only permits a single reproduction /copy to be made  Does not allow further communication of material  Preservation /other copying cannot take place during the commercial lifetime of the work (incl. taking into account availabilty of electronic copy)

20. 2. Flexible dealing exception for cultural institutions and others – s 200AB(1) Copyright in a ‘work’ or ‘subject matter’; not infringed by a use where: a) the circumstances of the use amount to a special case b) the use is covered by one of the subsections c) the use does not conflict with a normal exploitation of the work/ subject-matter; AND d) the use does not unreasonably prejudice the legitimate interests of the copyright owner (or their licensee)

21. s 200AB(2)  A use is made by or on behalf of a library or archives  The use is for the purpose of maintaining or operating the library or archives (including operating the library or archives to provide a service of a kind usually provided by a library or archives).  The use is not partly for the purpose of the body maintaining a commercial advantage

22. ‘Flexible dealing’ Advantages Advantages  Not purpose-specific  Far more flexible than key cultural institutions / significant works exceptions …….. BUT “three step test” must be met

23. Preservation & the three-step test Is preservation copying ever a normal exploitation of a work? Is preservation copying ever a normal exploitation of a work?  commercial archiving/preservation services limited, usually operated by 3 rd party service providers not publishers / © owners of born digital material. Is there a legitimate interest in controlling when pres takes place, or receiving remuneration from it? Is there a legitimate interest in controlling when pres takes place, or receiving remuneration from it?  Depends on type of material…..no markets for AV pres copying services, given high cost and technical complexity in pres copying AV material compared with documentation/images. Is ‘commercial availability’ relevant? Is ‘commercial availability’ relevant?  Yes…but duplicate masters of digital or analogue materials will not neccessarily compete with the e-commerce market  format /size of preservation materials is considerably larger and of higher resolution and quality than current formats distributed online (eg, MP3 files).

24. Do existing and proposed copyright exceptions accord with best practice in preservation?

25. Priorities for digital preservation copying (per NLA website) Is preservation copying permitted under current Act? Proposed legislative changes and ‘best practice’. Out of Print PARTIALLY Replacement copying allowed if published material not otherwise commercial available and material damaged, deteriorated, lost or stolen Key Cultural Institutions – PARTIALLY - only single reproduction /copy – falls short “best practice” pres copying. Flexible dealing – YES: – allows multiple copying - as material out of print likely to satisfy three-step test as no current market for distribution of copies. Fragile or vulnerable PARTIALLY – original material ie, manuscripts, original artistic works, SRs held as a first record, CFs held as a first film can be copied. Key cultural institutions – PARTIALLY – only allow creation digital master (single reproduction/copy) and not working copies or low res access copies – potentially risk deterioration to digital master through need for repeated access.

26. Priorities for digital preservation copying (per NLA website) Is preservation copying permitted under current Act? Proposed legislative changes and ‘best practice’. Of high research value NO Key cultural institutions PARTIALLY – only single reproduction /copy and subject to commercial availability test (possibility works or electronic copies may be available given work’s high research value). Flexible dealing – LIKELY– as material may still be in print possibility copyright owner could argue that pres copying could compete with current distribution markets or developing markets for archival copying.

27. Priorities for digital preservation copying (per NLA website) Is preservation copying permitted under current Act? Proposed legislative changes and ‘best practice’. Rare/unique and/or valuable YES – preservation copying of ‘original materials’ - manuscripts, original artistic works, first copies of films and first records of SRs. Key cultural institutions – YES – but limited to single copy Flexible dealing LIKELY Heavily used (prospective/ preventative copying) NO – unless: - original material prospective/preventative pres allowed Published material – NO prospective/preventative preservation copying - material must have been damaged, deteriorated, lost or stolen Key cultural institutions PARTIALLY – but limited to single copy and provided copy not commercially available (including electronic copies) Flexible dealings exception LIKELY provided not likely to compete with copyright owner’s current or potential market for pres Copying.

28. Do existing and proposed copyright exceptions accord with technical processes of digital preservation?

29. ProblemStrategy Copying actions Potential Risks Copyright issues Redundant potentially obsolete media Format shift Copy from one type of digital medium to another (eg.wav to MP3 derivative access file) or from analogue to digital form Generational loss Data loss Hardware failure Insufficient time available to migrate from one format to another. Budget – migrating sizeable data collections is expensive Material may be protected by a TPM. Format shifting – YES - significant works - extended dealings exception. Multiple copies – YES - s 200AB provided three-step - s 200AB provided three-stepsatisfied No specific right to create back ups of digital content – but –1 back-up permitted (Key Cultural Institutions exception) – multiple back-ups (extended dealings) New exception in Copyright Regulations for institutions allowing circumvention of TPMs for preservation –related copying. Storage problems Disaster management Create back-ups / replicas Copy from old medium to new medium of same type or to new format

30. ProblemStrategy Copying Actions Potential Risks Copyright Issues Future proofing in light of degradation to digital content and format/hardware obsolescence. Media refreshment Format shift from one format to another. May result in loss of data. Not always possible to make an exact digital replica in face of changing technologies. Changes in functionality. Changes in look and feel. Format shifting – YES: -significant works -extended dealings exception. Multiple copies – extended dealings provided three-stepsatisfied Migration Periodic transfer digital material from one hardware/software configuration to another

31. ProblemStrategy Copying Actions Potential Risks Copyright Issues Hardware/sof tware i.e. technology on which media / materials plays obsolescence Emulate – current or future technological platform (hardware or software) mimics older/obsolete platform. Reverse engineer hardware/ software. Loss of look and feel. Loss of functionality. Time consuming and costly. Far more complex than refreshing. No specific right to emulate/reverse engineer digital content other than reverse engineer computer programs to make interoperable products (s47D) Emulation/reverse engineering likely covered by extended dealings as emulation is part of preservation process (a service usually provided by a library/archive) BUT NOT if owner of original hardware/software is marketing upgraded technologies (emulation may compete with owner’s market and fail 2nd and 3 rd steps of three step test).

32. Practical measures institutions can adopt in lieu of law reform to ensure they can undertake “best practice” preservation  Contractually obtain rights under donation/deposit agreements to preserve digital material accessioned into collections  Negotiate individual or blanket licences with publishers / copyright owners  Advocate for expansion of legal deposit legislation Australia (requiring compulsory deposit of material with libraries /institutions to include electronic and AV material)  Adopt a risk management approach

33. Erin Driscoll Legal Officer Australian Film Commission erin.driscoll@afc.gov.au Chair Copyright in Cultural Institutions (CICI) group http://www.nma.gov.au/about_us/copright_and_reproductions/cici/