What’s Not Preserved is Lost: Why We Should Care about Article 6 of the Copyright Directive

Today, the chapter of the new Communia guide to the Copyright Directive focusing on preservation is launched. We’re happy to have led in preparing this, working with our partners at Communia.

Preservation may not have seemed like the biggest issue in the Copyright Directive, compared to the other subjects under discussion.

The topic itself can seem to be of minority interest. But it’s important to remember that preservation is not just carried out to make sure that future historians have something to read.

Preservation is a vital first step for any future use of a work, either under an exception if it’s in-copyright, or freely once it gets into the public domain.

Digitisation in particular is a key tool for doing this. It is true that this is not necessarily easy or cheap – there needs to be constant attention to ‘bit rot’ – the loss of access to content because of the obsolescence of formats or supports – and to ensuring that servers are kept safe.

But it does massively strengthen our ability to safeguard, and subsequently use, the documents and works that have shaped our past.

 

A Potential Unrealised?

The work of organisations like Europeana are showing how valuable preserved materials can be for education. The entire digital humanities discipline is based on coming up with new insights on the basis of digitised materials. The potential of historic documents to inform policy and help us understand the progress of climate change is becoming clearer and clearer.

Yet there is unevenness in current preservation rules across Europe. Who can carry out preservation is not the same from one country to the next, nor are the rules about permitted purposes.

A number of countries force libraries to check for commercially available copies before carrying out preservation, and others effectively rule out digitisation by putting limits on the number of copies taken. All but five countries allow contract terms to take away the possibility to take preservation copies.

This all means that currently, the capacity of heritage institutions across Europe to preserve their past is not the same, leaving some countries and cultures at greater risk than others.

Moreover, the inconsistency between countries stands in the way of cooperation across borders, leading to inefficiencies in the use of expensive equipment, and missed opportunities to store documents in distributed networks.

This is what the Article addresses.

 

The Article and its Implementation

Article 6 is a relatively short article, and – fortunately – was already in a good state in the Commission’s original proposal, thanks to engagement from the heritage community.

As underlined in the Commission’s Impact Assessment, there was a clear public interest objective at play, and the arguments for leaving this to the market were weak at best. The challenges faced by institutions working across borders justified the need for international action.

The Article therefore makes it clear that cultural heritage institutions (broadly defined) can take copies for preservation purposes (also relatively broadly defined) of works in their permanent collections.

Properly implemented, it promises to remove many of the rules that have obliged libraries to spend time looking for commercial copies which are not necessarily easy to find, to make it clear that they don’t need to wait until a work is falling apart to preserve it, and can take copies to help with cataloguing, getting insurance, or other actions related to preservation.

In short, it should remove many of the needless legal barriers to preservation which have meant that some institutions are better empowered to safeguard heritage than others.

 

Going Further

Nonetheless, there is more to do. The provisions of the Directive needs to be implemented properly for a start, including the broad definition of heritage institutions and preservation purposes, and provisions on contract override and text and data mining.

A key area for attention will be the way in which those works which can be preserved are defined. The Directive talks about works in the permanent collection, yet at a time when so much of the material made accessible by libraries to users is licenced, and lives on third-party servers, it is important to avoid situations where an ever decreasing share of works can be preserved by libraries.

There are more positive possibilities. The Directive could offer a long overdue possibility for libraries to get the legal certainty necessary for web harvesting – i.e. copying freely accessible content from the internet for preservation purposes.

It could also bring about long-overdue consistency in the possibilities libraries themselves have to copy works for internal purposes.

 

Conclusion

For all that Article 6 should be obvious and uncontroversial, it does mark a useful step. In the light of the European Year of Cultural Heritage in 2018, the exception is of course the least that the EU could have done to support the preservation of the past.

Crucially, it also sets an example for countries elsewhere in the world. While preservation exceptions are relatively common, there are desperately few which allow for digitisation.

This is a crucial point at a time of climate change, when all it may take is one wildfire, flood or storm to wipe out the historical record of a region or country.

We hope to see the model created by the European Union spread throughout the world.

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