Mandatory harmonised exception for preservation purposes by cultural heritage institutions
Impacts on legal certainty for preservation of cultural heritage: This option would be effective for CHIs as all of them (including for example museums and film heritage institutions in all EU MS) would be in the position to carry out preservation reproductions of works in their permanent collections with legal certainty and with digital technologies.
This option would in practice cover preservation in digital environments, extend the range of beneficiaries in those MS where the current national exception excludes certain types of CHIs, and the range of works in those national cases where some categories are not currently contemplated. The option would also eliminate the potential transaction costs related to clearing rights for preservation copies.
Whereas a solid estimation of the increase of the preservation rates of works held by CHIs is not possible, the effect of this option can be expected to be substantial as it removes the key copyright obstacle to preservation activities. As in the previous options, preservation copying of certain works (part of scientific publishing, works covered by voluntary deposit arrangements) could still be contemplated as part of agreements with rightholders.
While this option implies the introduction of a new harmonised exception, the impact in terms of missed revenue is likely to be minimal for the same reasons as per Option 1, as this exception would only apply to works that CHIs already have in their permanent collections and have no bearing on the acquisition of permanent copies into a collection. Rightholders could lose some revenue from replacement copies that could have been bought on the market in the absence of an exception, but that effect is expected to be negligible. Works enjoying a longer life thanks to preservation has a potential positive effect on the revenues of rightholders in terms of possible future uses of the works and therefore licensing revenue.
The introduction of an EU-level compulsory exception to the reproduction right for preservation purposes would have a marginal impact on copyright as property right, as recognised by Article 17(2) of the Charter, as it would only apply to authorisations for preservation copies by CHIs. By supporting more preservation of works and their longer term availability, it can also have a positive impact on the arts and scientific research, relevant for the freedom of the arts and sciences (Article 13), and on education, protected under Article 14.
Option 2 is the preferred option is as it would provide the best environment and the largest space for preservation, including in digital environments, for CHIs while not generating particular compliance costs, or affecting the interests of rightholders to any meaningful extent. This option would reduce costs for CHIs related to legal uncertainty, and for both CHIs and rightholders in terms of potential transaction costs related to requests for authorisations and their handling, to a larger extent than Option 1.
Option 2 will require an adaptation of national legal frameworks to different degrees, depending on the level of clarity and the scope of the current national exceptions applicable to preservation by CHIs. National preservation exceptions will have to be clear about the possibility for CHIs to make copies in any format and support (i.e. allow for format and media-shifting) and be adapted if and when restrictions to the use of digital methods to conduct preservation can be hampered by their current formulation.