Have you experienced specific problems when trying to use an exception to preserve and archive specific works or other subject matter in your collection?
In some cases, end users/consumers are concerned about the divergent implementation of the preservation exceptions across the EU and consider that more harmonisation of the preservation exception is needed in view of technological developments. Some end users/consumers also suggest broadening the scope of this exception, notably to allow public libraries and other beneficiaries to make the works in their collections available online.
The vast majority of institutional users report that they have experienced problems when trying to use an exception to preserve and archive specific works in their collections. They generally believe that the preservation exception is too narrow. Some point out that the mere preservation of works in their collection is not the sole reason why libraries and other institutions wish to reproduce them.
Other objectives include making these works more easily searchable or available across digital networks, including across research platforms and infrastructures. Some respondents highlight problems in relation to recital 40 of the InfoSoc Directive, according to which this exception should not cover uses made in the context of online delivery of content.
It is also stressed by some respondents that the exception should allow beneficiaries to go beyond the specific acts of reproduction which are currently allowed and that it should allow mass digitisation.
Institutional users also raise issues with ‘born-digital’ content and highlight that the preservation exception does not allow them to produce back-up copies of content (for examples articles) that they subscribe to.
More broadly, institutional users consider that licences are not a sustainable solution for the digital preservation of content in the long run. Licensors, for example publishers, may cease to exist and subscriptions may be stopped and, as a consequence, libraries and other institutions may lose access to content, which would prevent them from fulfilling their role as custodians of cultural heritage.
They also mention some difficulties with the fact that this exception only covers acts carried out without direct or indirect commercial advantage: they consider this requirement too broad and potentially problematic, for example when institutional users cooperate with commercial entities for preservation or other purposes.
It is proposed that the exception’s scope should clearly include format shifting. Some respondents in this category also call for the current exception to be made mandatory and for a clarification that contracts cannot override exceptions. Finally, some respondents suggest that the introduction of a ‘fair use’ approach in EU copyright law would help libraries and cultural institutions to fulfil their role.
They consider in particular that the preservation exception should not be broadened nor made mandatory. Generally speaking, for respondents in this category, legislative changes should only be considered in the presence of a market failure. Audio-visual producers refer to the principles and procedures for the digitisation of film heritage agreed upon in the context of Licences for Europe.
In order to prevent unnecessary harm to commercial markets, a distinction should be made between heritage/deposit libraries, which have a clear preservation mission, and other libraries when defining the beneficiaries of libraries exceptions and the conditions attached to them.
Collective management organisations (CMOs)
Some CMOs report that cultural heritage institutions in certain Member States digitise not only for preservation purposes but also to make digitised content easily accessible (online) to a wider public. Some respondents point out that licences are available to cover both activities (at least in a number of Member States) but report that, in their view, cultural institutions are not always willing to use them and remunerate rightholders for their use of copyright protected content.