Preservation of Heritage: Article 6 of the EU-DSM by Renata Petrušić

Renata Petrušić, senior librarian at the Croatian Digital Library Development Centre of the Croatian Institute for Librarianship, National and University Library in Zagreb. Responsible for copyright and licencing issues, access and rights management.

1. Can you explain to us what article 6 of the EU-DSM Directive contains?

Article 6 refers to the preservation of cultural heritage. It contains a mandatory exception that allows cultural heritage institutions to make, in any format or medium, preservation copies of all works that they have permanently in their collections.

Recitals 25-29 of the EU-DSM Directive provide details of the scope and objective of Article 6. They state that, in order to achieve preservation goals, cultural heritage institution are allowed to establish cross-border preservation networks, enabling cross-border cooperation and sharing of means of preservation. Recital 29 provides a broad definition of works that are considered to be permanently in the collection of a cultural heritage institution, including works that are “result of a transfer of ownership or a licence agreement, legal deposit obligations or permanent custody arrangements”. In addition, Article 7 stipulates that contractual provision contrary to the exceptions are unenforceable and that technological protection measures should not prevent the creation of preservation copies.

2. Why is this provision important to libraries?

Ensuring the preservation and accessibility of works from their collections for this and future generations have always been the fundamental mission of libraries. In order to achieve this mission, libraries and other cultural heritage institutions need a clear legal framework adapted to the digital age. It is essential to have legislation that allows libraries to take all necessary steps in order to carry out their duties and fulfil a public purpose.

Given that under copyright law, authors have the exclusive right of reproduction, it is crucial to have an exemption to copyright protection which allows libraries to make preservation copies of works without the need to seek permission from the copyright holder. Such an exemption must apply to all types of works or another subject-matter that libraries own or permanently have in their collections, to all formats and media. It is particularly important to emphasize that technical protection measures and contractual provisions must not affect the possibility of making preservation copies.

Although most European countries already have legal provisions that allow acts of reproduction for preservation incorporated in their national laws, inconsistency in the current legal provisions of  EU Member States brings legal uncertainty to preservation efforts carried out by cultural heritage institutions and their partners. Not all libraries have the technical resources and required expertise to carry out preservation programmes and they in that regard need to rely on external contractors and partners. The new mandatory exception will harmonize this exception across the EU, allowing libraries to cooperate across borders, use preservation networks and work with third parties when making preservation copies.

3. What is the best implementation Libraries could hope for with this article?

The provisions of Article 6 are a welcome addition to European legislation ensuring the improvement and harmonisation of exceptions relating to the preservation of cultural heritage throughout the EU. The adoption of the provisions of Article 6 and the definitions in the Recitals as they are set out in the Directive, would ensure that libraries are allowed to:

make preservation copies of all the works from their collections (by the appropriate preservation tool, means or technology, in any format or medium, in the required number, at any point in the life of a work),

– cooperate cross-border,

– share the means of preservation,

– rely on third parties for the making of copies,

– establish cross-border preservation networks,

– make sure that contractual provisions and technological protection measures do not prevent preservation of works.

However, it is possible to go beyond what is set out in the Directive. Ideally, broader exceptions would include permission to make copies of works for all internal uses in libraries, such as indexing and cataloguing, and other activities necessary for management of collection.

4. What is your government’s position on the issue?

Croatia is one of the first EU Member States to introduce a proposal of the transposition of the EU-DSM Directive into national law. A public consultation on the Draft Proposal on Copyright and Related Rights Act was conducted from April to May 2020. The proposed Bill received more than 730 comments. The government is now in the process of preparing a report on the consultation.

The current Croatian Copyright and Related Rights Act includes an exception benefiting cultural heritage institutions to reproduce copyrighted works from their own copy to any media for the purposes of preservation and safeguarding.

The new proposal of the Croatian Copyright and Related Rights Act implements the provisions of Article 6 as they are prescribed by the Directive. Article 182 of the proposed Croatian Copyright Law closely follows the wording of  Article 6, stating that “cultural heritage institutions […] are authorized, without the approval of the right holder and without payment of remuneration, to reproduce copyrighted works and related rights that are a permanent part of their collections, in any format or on any medium, for the purpose of their preservation and to the extent necessary for that purpose”. The same article also states that contractual provisions that are contrary to this exception are null and void, and defines the types of works that are considered to be part of the collections of cultural heritage institutions (as they are defined in Recital 29 of the Directive).

Importantly, proposed Croatian Law has retained the provisions of the current law that go beyond what is allowed in Article 6 of the Directive. Article 184 of the proposed Croatian Law, which refers to exceptions of the reproduction rights, for benefit of particular institutions, states that cultural heritage institutions “may, without the authorisation of the right holder and without payment of remuneration, reproduce a copyrighted work or another subject-matter […], on any medium, for their special needs that are in accordance with their public purposes, such as the needs of preservation and safeguarding of the materials, technical restoration and reparation of the materials, collection management and other own needs, if not acquiring thereby any direct or indirect commercial benefit”.




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