Topic 8: Limitations on Liability for Libraries and Archives

At SCCR 27, library and archive organisations have been able to offer interventions on specific topics before the Committee for consideration. In the afternoon of Thursday 1 May, discussions began on Topic 8: Limitations on Liability. Mr. Ronan Deazley delivered a statement on limitations on liability for archivists on behalf of the Scottish Council on Archives:

Thank-youMr Chairman. I represent the Scottish Council on Archives, a not-for-profit organisation providing leadership for the archive sector in Scotland, although I speak today with the support of all the archive and library NGOs present.

This is our first time taking the floor, so let me thank-you for the opportunity to speak, and congratulate you on your re-election.

I am also a Professor of Copyright Law at the University of Glasgow, in Scotland. In that capacity I’ve spent time researching the way copyright both enables and inhibits the core mission of the archive community.

The point I wish to make is very simple: exceptions alone are not sufficient.

Archivists take copyright law very seriously. They are law-abiding people with strong professional ethics.

But they often find the copyright regime complicated, confusing and intimidating, and especially within an international context. Few archivists enjoy the benefit of formal legal training, and archives rarely have the financial resources to pay for specialist legal advice.

And research tells us that archivists worry about copyright.

They worry about whether or not they are acting lawfully; they worry about the threat of litigation; and they worry about the reputational damage – to their institution and to the archive profession in general – that might flow from inadvertent or unintended copyright infringement.

And it is easy to understand why they worry.

Archivists and librarians want to act within the law. And they want to know with certainty that they are in fact acting within the law.

But even tightly-drafted and narrowly-focused exceptions often turn on flexible and situational concepts such as fairness (fair dealing, fair practice) and reasonableness (reasonable inquiry). As such, there often remains an element of doubt in the mind of the archivist about whether reliance on the exception is lawful or not.

And that sliver of doubt often triggers an unwillingness to rely upon and benefit from those lawful exceptions.

That is why exceptions alone are not sufficient.

They must be accompanied by a limitation on liability: a safe harbour that empowers archivists and librarians engaging in non-commercial activities to have confidence in their own good faith interpretation and application of the law; a provision establishing that, when archivists and librarians act in good faith, believing that they have acted in accordance with the law, they will not be held liable for inadvertent or unintended copyright infringement.

Such a provision would enable archivists and librarians to take full advantage of the scope and opportunity which copyright should afford the preservation and digital accessibility of the shared cultural heritage of humankind.

An international instrument on exceptions for libraries and archives that does not make provision for a limitation on liability runs the risk of undermining its own value and worth.

Before concluding, I would like to address the European Union’s open statement as to whether any European member states currently afford librarians and archivists with any form of limitation on liability.

The UK copyright regime does.

It makes clear that a librarian or archivist is entitled to rely upon a signed declaration from a user requesting a copy of material as evidence that the material is being requested for lawful purposes; if the user has made a false declaration, liability for infringement lies with the user and not with the librarian or archivist.

Moreover, there is nothing within the corpus of European copyright doctrine to suggest that all member states could not provide for similar limitations on liability.


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