SWD IA on EU copyright modernisation – preservation of cultural heritage

Preservation by cultural heritage institutions (CHIs) faces legal uncertainty in the new technological environment. As in many cases preserving works requires copying them, the societal importance of preservation is reflected in national exceptions to the reproduction right for preservation purposes, which implement an optional EU exception for “specific acts of reproduction” by certain institutional users.

The exception applies to publicly accessible libraries, educational establishments and museums, as well as archives (Article 5(2)c of the InfoSoc Directive). Its implementation in MS covers preservation or similar notions (like ‘conservation’), but can also apply to other or less defined library activities, like ‘internal purposes of the institution’ or ‘administration and organisation’ of the collections. The space allowed for preservation activities under national exceptions is however sometimes narrow, unclear, not adapted or explicit enough to cover preservation in digital environments and of works in digital form. It varies from MS to MS.

This creates legal uncertainty for CHIs and can lead to desirable preservation activities not taking place. CHIs have generally reported problems with this situation. Preservation copying addresses for example the degradation of the original material and the disappearance of the technologies and devices underpinning its readability. Technology allows for ‘digitisation’, i.e. the creation of digital equivalents or so-called ‘surrogates’ of works originally on analogue supports (for example paper), which is also done for preservation purposes.

Furthermore, ‘digital preservation’, i.e. the preservation of works in digital form, both resulting from digitisation and ‘born-digital’ works, raises specific issues. ‘Born-digital works’ are works that were created directly in digital form, as opposed to a conversion from an analogue source. Those works can be subject to quicker degradation than content in analogue form, often with no notice to the human eye, and to quick technological obsolescence. Digital content can then require media migration and ‘format-shifting’, i.e. copying content onto more adequate media or formats. It can also warrant proactive preservation from the day works are acquired into a collection.

Digital preservation is also seen as a continual process, rather than a series of discrete and occasional interventions. More generally, digitisation and digital preservation confront CHIs with complex, open technical questions and can imply considerable costs. CHIs indicate that a number of these challenges cannot be addressed by individual institutions, many of which will not have the resources to undertake digital preservation on their own. The implementation in national laws of the current, optional EU exception applicable to preservation varies and can be limited and/or unclear in scope.

Certain categories of works can also be excluded from the scope of the national exception, like in IT where record and film archives can only reproduce phonograms and videograms. The specific purposes and uses allowed and other applicable conditions also change: the possibility of making digital copies, like in EE, or format shifting, like in NL, is rarely explicitly covered in other MS. This can for example prevent a library from creating a digital equivalent of a sound recording from an analogue support. The number of copies that may be made can be limited to one, like in IT, contrasting with the need of multiple copies that is often inherent to digital preservation.

Where an exception is not applicable, the potential transaction costs implied by the need for CHIs to obtain authorisation from rightholders can be disproportionate: if on the one hand the time and resources required to establish the copyright status of works, find and contact rightholders and obtain their authorisation can be considerable, on the other hand the likelihood that rightholders refuse authorisations or seek remuneration is low as suggested by relevant case studies. The economic value of a possible licence only covering this use is likely to be insignificant, considering the limited economic interest for rightholders of copies that are made for no other purpose than preservation of works that CHIs already have.

The authorisation of rightholders for preservation copying is in some particular cases explicitly foreseen. However, this normally occurs as part of broader licences or agreements that are first and foremost concerned with access to works by CHIs (and its final users) and/or their acquisition of permanent copies (which they can then permanently host, e.g. on their servers, for subsequent preservation). These licences do not have as their primary focus the conditions of preservation, and exist in some specific contexts only, notably in instruments on voluntary deposit of works concluded between certain categories of rightholders and CHIs, and in scientific publishing licences. The latter can alternatively also refer preservation to well-established third-party specialized organisations. Rightholders often referred to these solutions as responding well to the current preservation needs.

Variations in the scope of national preservation exceptions are also an obstacle to cooperation possibilities and efficiency gains that can be achieved in the single market. For example, a frequent practice in digital preservation is to store different digital copies of the same work in a minimum number of separate locations, each requiring dedicated infrastructure. Divergent legal frameworks can be a barrier to the possibility to share such infrastructure among CHIs located in different MS, and therefore have an impact on the broader problem of high technical costs associated to digital preservation.