Copyright and Copyright and Digital Digital

Preservation Preservation

OverviewOverview1.1. What is copyright and copyright infringement?What is copyright and copyright infringement?2.2. Relationship between preservation and copyrightRelationship between preservation and copyright3.3. Difference between analogue and digital preservationDifference between analogue and digital preservation4.4. ‘‘Best practice’ in preservation Best practice’ in preservation 5.5. How copyright law deals with preservation copying How copyright law deals with preservation copying 6.6. Current Copyright Act 1968Current Copyright Act 19687.7. Proposed new exceptions under Copyright Proposed new exceptions under Copyright

Amendment Bill 2006 Amendment Bill 2006 8.8. Analysis of whether existing and proposed exceptions Analysis of whether existing and proposed exceptions

accord with best practice preservation copying accord with best practice preservation copying 9.9. Practical measures to minimise risk of infringing Practical measures to minimise risk of infringing

copyright in undertaking preservation copyingcopyright in undertaking preservation copying. .

Legal risks to be managed Legal risks to be managed in digital preservation:in digital preservation:

Ownership of the contentOwnership of the content – – copyrightcopyright

Legality of content and using the Legality of content and using the content content Defamation, privacy, breach Defamation, privacy, breach of confidentiality, content regulation, of confidentiality, content regulation, ICIPs, breach of contract ICIPs, breach of contract

Duty of care over physical itemsDuty of care over physical items

WHAT IS COPYRIGHT?WHAT IS COPYRIGHT? The exclusive The exclusive right to copy and otherwise use right to copy and otherwise use

copyright material copyright material (eg literary, dramatic, musical or (eg literary, dramatic, musical or artistic ‘works’; films, sound recordings and published artistic ‘works’; films, sound recordings and published editions) editions) and to stop other people copying and to stop other people copying your your copyright material.copyright material.

““Bundle” of exclusive rightsBundle” of exclusive rights reproduce /copyreproduce /copy communicate (eg internet/intranet /publicly accessible communicate (eg internet/intranet /publicly accessible

collections database)collections database) make an adaptationmake an adaptation

Copyright infringement: Copyright infringement: using or authorising the using or authorising the use ofuse of

all or any “substantial part” (an important, essential or all or any “substantial part” (an important, essential or distinctive part) of copyright materialdistinctive part) of copyright material

in one of the ways exclusively reserved to the copyright in one of the ways exclusively reserved to the copyright ownerowner

without permission / licence of copyright ownerwithout permission / licence of copyright owner

Copyright infringementCopyright infringementLibraries and cultural institutions and their Libraries and cultural institutions and their

patrons/userspatrons/userswill infringe copyright where they will infringe copyright where they photocopy, digitise,photocopy, digitise,download, or otherwise reproduce or use copyright download, or otherwise reproduce or use copyright

materialmaterial from fromthe collection unless:the collection unless: they own the copyright/IP in information /content in itemthey own the copyright/IP in information /content in item

the material is no longer protected by copyright (ie, the material is no longer protected by copyright (ie, public domain material)public domain material)

the copying is permitted by an exception in the Copyright the copying is permitted by an exception in the Copyright Act (eg, one of the library and archive exceptions)Act (eg, one of the library and archive exceptions)

libraries have direct permission/licence of copyright ownerlibraries have direct permission/licence of copyright owner

PRESERVATION & PRESERVATION & COPYRIGHT COPYRIGHT

Why make preservation copies?Why make preservation copies? to provide accessto provide access ie, to ensure historically, scientifically and socially valuable ie, to ensure historically, scientifically and socially valuable

material continues to be available for researchers, students, material continues to be available for researchers, students, government, academics, life-long learners - i.e., there is a government, academics, life-long learners - i.e., there is a general general public benefit. public benefit.

Types of material held in collections Types of material held in collections covers a range of works protected by covers a range of works protected by copyright:copyright:

literary workliterary work - manuscripts, articles, books, websites & blogs – - manuscripts, articles, books, websites & blogs – literary work and sometimes published edition copyright (for e-literary work and sometimes published edition copyright (for e-publications and online subscriptions) plus protection for publications and online subscriptions) plus protection for

artistic workartistic work – images, digital photos, graphics, thumbnail – images, digital photos, graphics, thumbnail images – artistic worksimages – artistic works

cinematograph filmcinematograph film – VHS, DVS, 35mm film, computer games – VHS, DVS, 35mm film, computer games sound recordings & musical workssound recordings & musical works – CDs , MP3’s, vinyls – CDs , MP3’s, vinyls

Difference between traditional Difference between traditional preservation /conservation and preservation /conservation and

digital preservationdigital preservation

Analogue / print based preservation - Analogue / print based preservation - focus on preserving “artefact” as well as focus on preserving “artefact” as well as content content

Digital preservationDigital preservation - preserving integrity - preserving integrity of information /content and retaining the of information /content and retaining the ability of clients to retrieve, display and ability of clients to retrieve, display and otherwise use materials in face of constantly otherwise use materials in face of constantly changing technologychanging technology

Analogue / print based materials

Tangible artefacts/objects – Tangible artefacts/objects – libraries libraries /institutions acquire and own a discrete /institutions acquire and own a discrete information object – object accessioned into information object – object accessioned into and forms part of the collectionand forms part of the collection

Actual artefact vulnerable to physical Actual artefact vulnerable to physical deteriorationdeterioration

Focus mainly onFocus mainly on maintaining the maintaining the “artefact” in order to preserve the “artefact” in order to preserve the contentcontent

…………..therefore copyright not always therefore copyright not always exercisedexercised

Digital materials Digital materials Comprised of both tangibleComprised of both tangible (eg, DVDs, CDs-Roms) and (eg, DVDs, CDs-Roms) and

intangible artefectsintangible artefects (eg, websites, JPEG music files, wav and (eg, websites, JPEG music files, wav and tiff files [music and images])tiff files [music and images])

Have a relatively short lifespan compared with analogue Have a relatively short lifespan compared with analogue materialmaterial as as

fragile & vulnerable to fragile & vulnerable to deterioration/decomposition deterioration/decomposition technological changetechnological change – media & hardware obsolescence – media & hardware obsolescence

……..requiring:……..requiring: Refreshment of digital mediaRefreshment of digital media by copying it onto new by copying it onto new

formatsformats MigrationMigration:: transfer of data to new storage media and transfer of data to new storage media and

new formats (ie, format shifting) within a short time-new formats (ie, format shifting) within a short time-frame from original creationframe from original creation

EmulationEmulation using contemporary software/hardware using contemporary software/hardware technologies to recreate obsolete hardware/software technologies to recreate obsolete hardware/software experiencesexperiences

……..therefore digital preservation involves exercise of therefore digital preservation involves exercise of copyright - reproduction (incl digitisation), copyright - reproduction (incl digitisation), adaptation, communicationadaptation, communication

Rights in content and associated software may Rights in content and associated software may belong to number different individuals belong to number different individuals /organisations/organisations

Digital info may be protected by technology to Digital info may be protected by technology to prevent unauthorised copyingprevent unauthorised copying

TPMs – digital locks, encryption, access controlsTPMs – digital locks, encryption, access controls

Many institutions may only have right to access Many institutions may only have right to access rather than “own” digital objects.rather than “own” digital objects.

Can be easily compressed - entire item usually Can be easily compressed - entire item usually copied/reproduced rather than part of item.copied/reproduced rather than part of item.

What is 'best practice' in What is 'best practice' in preservation? preservation?

““Best practice” can be assessed Best practice” can be assessed by looking at:by looking at:

what should be copied? – ie what should be copied? – ie preservation prioritiespreservation priorities

how the material should be how the material should be copied? – technical aspectscopied? – technical aspects

What should be copiedWhat should be copied? ? out of print out of print fragile or vulnerablefragile or vulnerable of high research valueof high research value rare/unique and/or valuablerare/unique and/or valuable Heavily used (ie, Heavily used (ie,

prospective/preventative copying)prospective/preventative copying)

analogue preservation - technical aspectsanalogue preservation - technical aspects

Copies to faithfully and Copies to faithfully and as accurately as as accurately as possible reproduce original…possible reproduce original…no alteration, no alteration, tampering, restorationtampering, restoration

Materials are vulnerable to Materials are vulnerable to generational lossgenerational loss

Compression can be a constraintCompression can be a constraint around around making high quality copies– solution is to make making high quality copies– solution is to make multiple copies multiple copies

Often involves making Often involves making intermediate copiesintermediate copies (especially AV material)(especially AV material)

Digital preservation - technical aspectsDigital preservation - technical aspects

Copies to faithfully and Copies to faithfully and as accurately as as accurately as possible reproduce original…possible reproduce original…no alteration, no alteration, tampering, restorationtampering, restoration

Data compressionData compression fundamental constraint fundamental constraint around reproduction of high quality copiesaround reproduction of high quality copies

Can be Can be overcome byovercome by gradual compression of gradual compression of content via content via multiple copyingmultiple copying

Digital preservation Digital preservation 3 stages of compression (3-5 3 stages of compression (3-5

copiescopies))

Stage 1 – Stage 1 – digital surrogate / ‘master digital surrogate / ‘master duplicate’duplicate’

UNESCO – UNESCO – Guidelines for the Preservation of Digital Guidelines for the Preservation of Digital Heritage Heritage

Australian standard for management of essential Australian standard for management of essential business info and softwarebusiness info and software

BOTH recommend at least 3 digital surrogates be madeBOTH recommend at least 3 digital surrogates be made

Stage 2 – working /distribution copyStage 2 – working /distribution copy

Stage 3 – browsing/acess copyStage 3 – browsing/acess copy

HOW DOES COPYRIGHT LAW HOW DOES COPYRIGHT LAW TREAT PRESERVATION TREAT PRESERVATION

COPYING?COPYING?

Current preservation Current preservation exceptionsexceptions

Right to preservation copying limited byRight to preservation copying limited by type of usertype of user – – cultural institutions, not general rightcultural institutions, not general right format of materialformat of material – tangible/permanent materials – tangible/permanent materials type of collection itemtype of collection item

Pres copyingPres copying - “ - “originals” (originals” (s 51A(1)(a), s 51A(1)(a), ss110B(1)(a) & ss110B(1)(a) & 110B(2)(a)) 110B(2)(a))

Replacement copyingReplacement copying - - published materials not published materials not commercially available where material lost, stolen, damaged, commercially available where material lost, stolen, damaged, deteriorated (s51A, 110B)deteriorated (s51A, 110B)

Other materialOther material – – pres copying requires licence/permissionpres copying requires licence/permission type of usetype of use

Copying and digitisationCopying and digitisation Communication / providing accessCommunication / providing access – limited rights – limited rights

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 ?

YESNO

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

Proposed new exceptions – Proposed new exceptions – Copyright Amendment Bill Copyright Amendment Bill

20062006 (CAB) (CAB)1.1.Special exception for Key Cultural Special exception for Key Cultural

Institutions reproducing significant works Institutions reproducing significant works (ss (ss 51B, 110BA, 112AA)51B, 110BA, 112AA)

AdvantagesAdvantages Not purpose-specificNot purpose-specific Allows a broader range of works to be copiedAllows a broader range of works to be copied

LimitationsLimitations:: Not relevant to many cultural institutions Not relevant to many cultural institutions Only permits a single reproduction /copy to be madeOnly permits a single reproduction /copy to be made Does not allow further communication of materialDoes not allow further communication of material Preservation /other copying cannot take place Preservation /other copying cannot take place

during the commercial lifetime of the workduring the commercial lifetime of the work (incl. (incl. taking into account availabilty of electronic copy)taking into account availabilty of electronic copy)

2.2. Flexible dealing exception for cultural institutions Flexible dealing exception for cultural institutions and others – s 200ABand others – s 200AB(1)(1)

Copyright in a ‘work’ or ‘subject matter’; not infringed byCopyright in a ‘work’ or ‘subject matter’; not infringed bya a use use where:where:a)a) the circumstances of the use amount to a the circumstances of the use amount to a special casespecial case

b)b) the use is covered by one of the the use is covered by one of the subsectionssubsections

c)c) the use does not conflict with the use does not conflict with a normal exploitationa normal exploitation of the work/ subject-matter; ANDof the work/ subject-matter; AND

d)d) the use does not unreasonably prejudice the use does not unreasonably prejudice the the legitimate interestslegitimate interests of the copyright owner (or their of the copyright owner (or their licensee)licensee)

s 200AB(2)s 200AB(2) A use is made by or on behalf of a library or A use is made by or on behalf of a library or

archivesarchives

The use is for the purpose The use is for the purpose of maintaining of maintaining or operating the library or archivesor operating the library or archives (including operating the library or archives (including operating the library or archives to provide a service to provide a service of a kind usually of a kind usually providedprovided by a library or archives). by a library or archives).

The use is not partly for the purpose of the The use is not partly for the purpose of the body maintaining a body maintaining a commercial advantage commercial advantage

‘‘Flexible dealing’Flexible dealing’

Advantages Advantages Not purpose-specificNot purpose-specific Far more flexible than key Far more flexible than key

cultural institutions / significant cultural institutions / significant works exceptionsworks exceptions

…………....BUT “three step test” must be BUT “three step test” must be metmet

Preservation & the three-Preservation & the three-step teststep test Is preservation copying ever a normal Is preservation copying ever a normal

exploitation of a work?exploitation of a work? commercial archiving/preservation services limited, usually commercial archiving/preservation services limited, usually

operated by 3operated by 3rdrd party service providers not publishers / © owners party service providers not publishers / © owners of born digital material. of born digital material.

Is there a legitimate interest in controlling when pres Is there a legitimate interest in controlling when pres takes place, or receiving remuneration from it?takes place, or receiving remuneration from it?

Depends on type of material…..no markets for AV pres copying Depends on type of material…..no markets for AV pres copying services, given high cost and technical complexity in pres copying services, given high cost and technical complexity in pres copying AV material compared with documentation/images.AV material compared with documentation/images.

Is ‘commercial availability’ relevant?Is ‘commercial availability’ relevant? Yes…but duplicate masters of digital or analogue materials will Yes…but duplicate masters of digital or analogue materials will

not neccessarily compete with the e-commerce market not neccessarily compete with the e-commerce market format /size of preservation materials is considerably larger and format /size of preservation materials is considerably larger and

of higher resolution and quality than current formats distributed of higher resolution and quality than current formats distributed online (eg, MP3 files).online (eg, MP3 files).

Do existing and proposed Do existing and proposed copyright exceptions accord copyright exceptions accord

with best practice in with best practice in preservation? preservation?

Priorities Priorities for digital for digital preservatiopreservation copying n copying (per NLA (per NLA website)website)

Is preservation Is preservation copying copying permitted permitted under current under current Act?Act?

Proposed legislative Proposed legislative changes and ‘best changes and ‘best practice’.practice’.

Out of PrintOut of Print PARTIALLYPARTIALLYReplacement copying allowed if published material not otherwise commercial available and material damaged, deteriorated, lost or stolen

Key Cultural InstitutionsKey Cultural Institutions – –

PARTIALLYPARTIALLY - only single - only single reproduction /copyreproduction /copy

– – falls short “best practice” pres falls short “best practice” pres copying.copying.

Flexible dealingFlexible dealing – – YESYES::

– – allows multiple copying - as allows multiple copying - as materialmaterial

out of print likely to satisfy out of print likely to satisfy three-step testthree-step test

as no current market for as no current market for distribution ofdistribution of

copies.copies.

Fragile or Fragile or vulnerablevulnerable

PARTIALLYPARTIALLY – – original material original material ie, manuscripts, ie, manuscripts, original artistic original artistic works, SRs held as works, SRs held as a first record, CFs a first record, CFs held as a first film held as a first film can be copied.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.

Priorities Priorities for digital for digital preservatiopreservation copying n copying (per NLA (per NLA website)website)

Is Is preservatipreservation on copying copying permitted permitted under under current current Act?Act?

Proposed legislative changes Proposed legislative changes and ‘best practice’.and ‘best practice’.

Of high Of high research research valuevalue

NONO Key cultural institutionsKey cultural institutions

PARTIALLY PARTIALLY – only single – only single reproduction /copyreproduction /copy

and subject to commercial availability and subject to commercial availability testtest

(possibility works or electronic copies (possibility works or electronic copies may bemay be

available given work’s high research available given work’s high research value).value).

Flexible dealingFlexible dealing – LIKELY – LIKELY– as – as material maymaterial may

still be in print possibility copyright still be in print possibility copyright owner couldowner could

argue that pres copying could argue that pres copying could compete withcompete with

current distribution markets or current distribution markets or developingdeveloping

markets for archival copying. markets for archival copying.

Priorities for Priorities for digital digital preservation preservation copying (per copying (per NLA website)NLA website)

Is preservation Is preservation copying copying permitted under permitted under current Act?current Act?

Proposed legislative Proposed legislative changes and ‘best changes and ‘best practice’.practice’.

Rare/unique Rare/unique and/or valuableand/or valuable

YESYES – preservation – preservation copying of ‘original copying of ‘original materials’ - materials’ - manuscripts, original manuscripts, original artistic works, first artistic works, first copies of films and copies of films and first records of SRs.first records of SRs.

Key cultural institutionsKey cultural institutions – –

YESYES – but limited to single – but limited to single

copycopy

Flexible dealing Flexible dealing LIKELYLIKELY

Heavily used Heavily used (prospective/ (prospective/ preventative preventative copying)copying)

NO NO – unless:– unless:-original material original material

prospective/prospective/preventativepreventative

pres allowed pres allowed

Published material Published material – NO– NO

prospective/prospective/preventativepreventative

preservation copyingpreservation copying

- material must have - material must have beenbeen

damaged, damaged, deteriorated, lostdeteriorated, lost

or stolenor stolen

Key cultural institutions Key cultural institutions

PARTIALLYPARTIALLY – but limited to – but limited to singlesingle

copy and provided copy notcopy and provided copy not

commercially available commercially available (including(including

electronic copies)electronic copies)

Flexible dealings exceptionFlexible dealings exception

LIKELYLIKELY provided not likely to provided not likely to

compete with copyright compete with copyright owner’sowner’s

current or potential market for current or potential market for prespres

Copying. Copying.

Do existing and proposed Do existing and proposed copyright exceptions accord copyright exceptions accord with technical processes of with technical processes of

digital preservation? digital preservation?

ProblemProblem StrategyStrategy Copying Copying actionsactions

Potential Potential RisksRisks

Copyright issuesCopyright issues

Redundant Redundant potentially potentially obsolete obsolete mediamedia

Format shiftFormat shift Copy from Copy from one type of one type of digital digital medium to medium to another another (eg .wav to (eg .wav to MP3 MP3 derivative derivative access file) access file) or from or from analogue to analogue to digital formdigital form

Generational Generational lossloss

Data lossData loss

Hardware Hardware failurefailure

Insufficient Insufficient time available time available to migrate to migrate from one from one format to format to another.another.

Budget – Budget – migrating migrating sizeable data sizeable data collections is collections is expensiveexpensive

Material may Material may be protected be protected by a TPM.by a TPM.

Format shifting – YES Format shifting – YES

- significant works - significant works

- extended dealings - extended dealings exception.exception.

Multiple copies – YESMultiple copies – YES

- s 200AB provided - s 200AB provided three-stepthree-step

satisfiedsatisfied

No specific right to No specific right to create create backback

upsups of digital content – of digital content – but but –1–1

back-upback-up permitted (Key permitted (Key

Cultural Institutions Cultural Institutions exception)exception)

– – multiple back-upsmultiple back-ups (extended(extended

dealings)dealings)

New exceptionNew exception in in CopyrightCopyright

Regulations for Regulations for institutionsinstitutions

allowing allowing circumvention circumvention ofof

TPMsTPMs for preservation for preservation

––related copying. related copying.

Storage Storage problemsproblems

Disaster Disaster managememanagementnt

Create back-Create back-ups / replicasups / replicas

Copy from Copy from old medium old medium to new to new medium of medium of same type or same type or to new to new formatformat

ProblemProblem StrategStrategyy

Copying Copying ActionsActions

Potential Potential RisksRisks

Copyright Copyright IssuesIssues

Future Future proofing in proofing in light of light of degradation degradation to digital to digital content and content and format/hardwformat/hardware are obsolescence.obsolescence.

Media Media refreshmrefreshmentent

Format shift from Format shift from one format to one format to another.another.

May result in May result in loss of data.loss of data.

Not always Not always possible to possible to make an make an exact digital exact digital replica in face replica in face of changing of changing technologies.technologies.

Changes in Changes in functionality.functionality.

Changes in Changes in look and feel.look and feel.

Format Format shifting – shifting – YES:YES:

-significant -significant works works

-extended -extended dealingsdealings

exception.exception.

Multiple Multiple copiescopies

– – extendedextended

dealings dealings providedprovided

three-stepthree-step

satisfiedsatisfied

MigratioMigrationn

Periodic transfer Periodic transfer digital material digital material from one from one hardware/softwarhardware/software configuration to e configuration to anotheranother

ProblemProblem StrategyStrategy Copying Copying ActionsActions

Potential Potential RisksRisks

Copyright IssuesCopyright Issues

Hardware/Hardware/software software i.e. i.e. technology technology on which on which media / media / materials materials plays plays obsolescenobsolescencece

Emulate – Emulate – current or current or future future technologictechnological platform al platform (hardware (hardware or or software) software) mimics mimics older/obsololder/obsolete ete platform.platform.

Reverse Reverse engineer engineer hardwarehardware//

software.software.

Loss of look Loss of look and feel.and feel.

Loss of Loss of functionality.functionality.

Time Time consuming consuming and costly.and costly.

Far more Far more complex than complex than refreshing.refreshing.

No specific right to No specific right to emulate/reverseemulate/reverse

engineer digital content engineer digital content other thanother than

reverse engineer computer reverse engineer computer programsprograms

to make interoperable to make interoperable productsproducts

(s47D) (s47D)

Emulation/reverse Emulation/reverse engineeringengineering

likely covered by likely covered by extendedextended

dealingsdealings as emulation is as emulation is part ofpart of

preservation process (a preservation process (a service usuallyservice usually

provided by a provided by a library/archive) library/archive)

BUT NOT if owner of BUT NOT if owner of originaloriginal

hardware/software is hardware/software is marketingmarketing

upgraded technologiesupgraded technologies

(emulation may compete (emulation may compete withwith

owner’s market and fail 2nd owner’s market and fail 2nd and 3and 3rdrd

steps of three step test).steps of three step test).

Practical measures institutions Practical measures institutions can adopt in lieu of law reform can adopt in lieu of law reform to ensure they can undertake to ensure they can undertake “best practice” preservation“best practice” preservation

Contractually obtain rights under Contractually obtain rights under donation/deposit agreements to preserve donation/deposit agreements to preserve digital material accessioned into collections digital material accessioned into collections

Negotiate individual or blanket licences Negotiate individual or blanket licences with publishers / copyright ownerswith publishers / copyright owners

Advocate for expansion of legal deposit Advocate for expansion of legal deposit legislation Australia (requiring compulsory legislation Australia (requiring compulsory deposit of material with libraries deposit of material with libraries /institutions to include electronic and AV /institutions to include electronic and AV material)material)

Adopt a risk management approachAdopt a risk management approach

Erin DriscollErin Driscoll

Legal OfficerLegal OfficerAustralian Film CommissionAustralian Film Commission

erin.driscoll@afc.gov.auerin.driscoll@afc.gov.au

ChairChairCopyright in Cultural Institutions (CICI) group Copyright in Cultural Institutions (CICI) group

http://www.nma.gov.au/about_us/copright_and_reproductionshttp://www.nma.gov.au/about_us/copright_and_reproductions/cici//cici/