A layman’s guide to the KEEP legal studies

Overall Digital preservation activity in the European Union takes places within a complicated and often contradictory legislative landscape. Of most immediate concern to preservationists is the national legislation under which they operate day to day. Different nation states have their own laws and the understanding of key terms that prevails in one country often does not conform to that which holds elsewhere. Over and above national law, stands the European Community framework – which, although meant to be incorporated into member state legislation, is not uniformly or completely implemented across the whole of the EU. Here again there is some disagreement over the interpretation of key terms. Finally, there is non-EU legislation, and international treaties and obligations such as the Paris Convention for the Protection of Industrial Property (1883), and the Berne Convention for the Protection of Literary and Artistic Works (1886), to consider. The KEEP legal studies threw up two important issues: making copies of digital materials (media transfer) and making these copies available to users. Libraries and archives have no general right of reproduction but may reproduce (or transfer) digital material only in certain specified cases. The exemptions which libraries enjoy are sufficient to permit at least some of the activities necessary for preservation. However the inconsistency between national and Community laws and the lack of clarity on key terms (eg., multimedia works) give rise to confusion at the margins. There is a tendency for national legislation to be both more permissive than Community law, and for it to provide a greater degree of detailed governance. Unfortunately this leads both to inconsistency between member states, and to national regulation which is, in certain key areas, almost certainly incompatible with Community law. Complex though the legal landscape is, a number of consistent and clear messages have emerged from the investigations carried out both into EC law and the three national jurisdictions. On-line Dissemination of Digital Material In line with the general approach to the knowledge economy libraries and others increasingly try to bring information to users rather than requiring users to come to information. It is clear that the current legislative framework on copyright and digital material does not support this approach. Legal Deposit Status Community law provides no specific exceptions in respect of Legal Deposit. Consequently, national legislation which grants special exemptions to legal depositories permitting them to engage in preservation activities not open to others is almost certainly at odds with EC law. Multimedia works No definition of ‘multimedia works’ exists either in Community law or in the national jurisdictions examined. There is, however, general agreement on taking a distributive, approach in which each component part of a multimedia work: audio, graphics, software, database, etc., is considered separately. Since multimedia works are not, in general, made available on computer platforms in such a way that individual elements can be removed from the whole, this means that, in practice, multimedia works enjoy, as a whole, the strongest protection under law that is available for any of their constituent parts. This has a significant impact on the preservation of multimedia works. Libraries (andothers) are placed under a responsibility to perform a detailed assessment for each individual multimedia work they intend to preserve (or transfer from one storage medium to another) to establish the level of legal protection it enjoys. Given the scale on which national legal depositories are required to operate, such an individual assessment is impractical. This places libraries in a difficult position. Technological Measures of Protection (TMP) Many works are made available in a form to which technical measures have been applied to prevent or restrict the use that may be made of them. This might take the form of a simple password protection scheme or may involve considerable technical sophistication. The Information Society Directive (2001/29/EC) recognises the “need to provide for harmonised legal protection against circumvention of effective technological measures and against provision of devices and products or services to this effect” . It stipulates that “Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.”2 However it also permits Member States to be given the option of “providing for certain exceptions or limitations for cases such as educational and scientific purposes, for the benefit of public institutions such as libraries and archives”. Our investigation has shown that the potential for exemptions is quite limited and does not extend to permitting the creation or use of tools by individuals to bypass TMP:  In Germany, circumvention of TMP is illegal. Tools designed to circumvent TMP may be destroyed.  In France, circumvention of TMP is a criminal act in general and it is not possible to bypass TMP on Multimedia works.  In the Netherlands, legal scope does exist to bypass TMP, but in practice TMP has prevailed over the available ‘exceptions’. It should be noted that even in the limited situations where TMP may legitimately be circumvented, subsequent use of the transferred or copied material is extremely limited. Observations on the Community framework A number of obstacles in the way of transferring ‘multimedia works’ from their original medium (floppy disk etc.,) to a new medium or onto the KEEP emulation platform: Reproduction Rights: Information Society Directive The Information Society Directive (also known as the Copyright Directive) provides just one limitation to copyright protection:  Temporary acts of reproduction which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: o a transmission in a network between third parties by an intermediary, or o a lawful use of a work or other subject-matter to be made, and which have no independent economic significance The directive permits Member States to make four exceptions or limitations to the right of reproduction which are of direct relevance to KEEP: in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage (Art. 5, 2(c) );  incidental inclusion of a work or other subject-matter in other material (Art. 5, 3(i) );  use in connection with the demonstration or repair of equipment (Art. 5, 3(l) );  use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections (Art. 5, 3(n) ); It should be noted:  that Member States have no power to introduce new limitations not already included in the Directive. This has the unwelcome effect that Member States have no independent ability to keep their legislative frameworks up to date with unforeseen technological developments  no clear guidance is given on issues such as "format-shifting" (particularly important for migration-based approaches to preservation) or the number of copies that can be made  with respect to electronic dissemination of materials to users, recital 40 of the Directive states that the exception for libraries should not cover "uses made in the context of online delivery of protected works or other subject matter". The KEEP legal study concluded that media transfer should primarily be assessed under the Computer Programs Directive and the Database Directive. Reproduction Rights: Computer Programs Directive The Computer Programs Directive gives the rights holder the exclusive right to authorize:  the permanent or temporary reproduction of a computer program by any means and in any form, in part or in whole; in so far as loading, displaying, running, transmission or storage of the computer program necessitate such reproduction  the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, without prejudice to the rights of the person who alters the program  any form of distribution to the public, including the rental, of the original computer program or of copies thereof None of the exceptions set out in the Directive expressly serves the purpose of the stakeholders in the KEEP project and the Directive does not provide for an related to legal deposit requirements or for scientific, study or education purposes that would be similar or close to those set out by Article 5.2 (c) and 5.3 (n) of the Information Society Directive. As a result, reproduction of computer programs carried out by institutions like libraries and museums even when authorized under national laws, is in conflict with the Directive. Reproduction Rights: Databases Directive The Databases Directive of 11th March 1996 does however allow to provide limitations of rights in the following cases:  in the case of reproduction for private purposes of a non-electronic database  where there is use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved where there is use for the purposes of public security of for the purposes of an administrative or judicial procedure It is reasonable to assume that a significant portion of databases that are in the scope of the KEEP project, whether made available on a standalone basis or embedded in a multimedia device, will be protected by copyright. None of the copyright related exceptions or sui generis rights offered by the Directive are relevant for KEEP. Consequently, the reproduction of a database for purposes originally contemplated in the KEEP project fails to comply with the provisions of the Directive. Overall Conclusions Community law does not provide a legal framework appropriate to the project in terms of reproduction rights:  None of the exceptions set out at the EC level serves fully the original purposes of the KEEP project.  EC Law does not provide for legal deposit requirements  EC Law does not provide for scientific, study or education purposes across the full range required for KEEP  Reproduction of computer programs and databases even when carried out by memory organisations and authorized under national laws, is in conflict with EC Law