In the short term, the situation would not substantially change for CHIs. They would enjoy a narrow or larger space for preservation depending on the MS in which they carry out their preservation activities. Except in cases where MS may update their implementation of the current EU exception for ‘specific acts of reproduction’ to exploit its full space for preservation purposes, legal uncertainty and barriers to preservation will persist to varying degrees in the long term too.
Furthermore, due to different national laws, legal uncertainty for CHIs wishing to perform preservation of works abroad, for example through shared infrastructure, will remain, therefore hampering the ability to take advantage of economies of scale. Preservation of certain types of electronic content, mainly a number of scientific publications that CHIs access remotely from publisher or other platforms’ servers, or those that they receive on the basis of voluntary deposit agreements, will continue to take place on the basis of authorisations that are included in agreements with a broader scope.
Rightholders could in theory obtain extra revenues in those cases where CHIs, in order to make preservation copies that are not covered by a national exception or the agreements mentioned above, decide to ask for a specific authorisation. Given the negligible economic significance of preservation copying of works that have already been permanently acquired by a CHI, it is unlikely that rightholders would ask, and that CHIs would be ready to pay, significant fees.
There would be no specific impact on the licensing market for access to electronic resources. Rightholders would still be in the position to negotiate the transfer of permanent copies to CHIs as part of licences. Incentives for creators to produce more and diverse content would not change, but some of this content could go lost for lack of preservation in the long term, with a possible negative impact on cultural diversity.
Persisting legal uncertainty and national variations might limit or reduce the rates of works in CHIs that are preserved, with possible negative effects on the ability of society at large to see their heritage preserved as a public good in the long term, and therefore on the development of the arts, science, education and social development more broadly.
No impact on copyright as a property right, as recognised by Article 17(2) of the Charter. No tangible impact on the arts and scientific research, relevant for the freedom of the arts and sciences (Article 13), nor on education, protected under Article 14.
Guidance to MS and peer review mechanism on the implementation of the EU exception on ‘specific acts of reproduction’ for preservation purposes
Individual MS may decide to update their national legislation. This would result in a variably improved environment for CHIs to make preservation copies at national level. On the one hand, this effect could be felt earlier than a legislative option. Given the non-binding nature of this option, it is unlikely that the scope of national exceptions is brought up to speed with the needs of digital preservation in all MS and that discrepancies disappear. As a result, the option would not substantially facilitate preservation acts carried out in MS other than the one in which a given CHI is established. The impact on the environment for preservation, notably in terms of legal certainty would be limited, depending on the decisions of individual MS.
As in the baseline scenario, under this option the preservation of certain works, mainly in the area of scientific publishing or voluntary legal deposit practices, could continue to take place based on authorisations from rightholders as part of broader agreements. A possible larger scope of national preservation exceptions is unlikely to affect such arrangements, as they are also required for the acquisition/delivery of permanent copies to the CHIs in the first place and can also cover access to works (not only their preservation).
Missed revenue opportunities for rightholders due to the possible expansion of the scope of national exceptions under this option are expected to be minimal, given that they would still regard reproductions for preservation purposes only. The possible increase in preservation copies, as a result of a larger space under national exceptions, can have a slight downward impact on the number of copies that CHIs might have purchased on the market with preservation purposes in mind, in those cases where the national exception previously did not allow them to make copies.