Draft proposal for a directive on copyright in DSM – exception for preservation

A legal, financial, organizational and technical environment that is conducive to the preservation of works and other subject-matter in the digital environment, as well as their digitisation and dissemination by cultural heritage institutions, is depend on a variety of factors.

These factors include ensuring the necessary legal framework conditions for long-term digital preservation in terms of multiple copying and migration of digital cultural material by public institutions for preservation purposes, in full respect of Union and international law on copyright; and the need to actively promote agreements on the large scale digitisation and online availability of out-of-commerce works and to take the necessary measures to provide for the required legal certainty in a national and cross-border context.

Cultural heritage institutions are engaged in the preservation of their collections for future generations. Digital technology offers new ways to preserve the heritage contained in those collections but they also create new challenges. An act of preservation would require a reproduction of a work or other subject-matter in the collection of a cultural heritage institution and consequently the authorisation of the relevant rightsholder. Therefore, it is necessary to adapt the current legal framework by providing a mandatory exception to the right of reproduction in order to allow these acts of preservation.

Different approaches in the Member States for acts of preservation by cultural heritage institutions hamper cross-border cooperation and the sharing of best practice including the means of preservation by cultural heritage institutions in the internal market, preventing an efficient use of resources.

Member States should therefore be required to provide for an exception to permit cultural heritage institutions to reproduce works and other subject-matter permanently in their collections when done for preservation purposes, for example to address technological obsolescence or the degradation of original supports.

Such an exception should allow for the making of copies by the appropriate preservation tool, means or technology, in the requisite number and at any point in the life of a work or other subject-matter to the extent required in order to produce a copy for preservation purposes only.

Different arrangements, based on the implementation of the exception provided for in Directive 2001/29/EC or on licencing agreements covering further uses, are in place in a number of Member States in order to facilitate educational uses of works and other subject-matter. Such arrangements have usually been developed taking account of the needs of educational establishments and different levels of education.

Whereas it is essential to harmonise the scope of the new mandatory exception or limitation in relation to digital uses and cross-border teaching activities, the modalities of implementation may differ from a Member State to another, to the extent they do not hamper the effective application of the exception or limitation or cross-border uses. This should allow Member States to build on the existing arrangements concluded at national level. In particular, Member States could decide to subject the application of the exception or limitation, fully or partially, to the availability of adequate licences, covering the same uses as those allowed under the exception.

This mechanism would, for example, allow giving precedence to licences for materials which are primarily intended for the educational market. In order to avoid such mechanism results in legal uncertainty or administrative burden for educational establishments, Member States adopting this approach should take concrete measures to ensure that licencing schemes allowing digital uses of works or other subject-matter for the purpose of illustration for teaching are easily available and that educational establishments are aware of the existence of such licensing schemes.