17 July 2008
WIPO Event Addresses Tensions Of Librarians And Publishers In Digital Archiving
for the full text of this article go to:
http://www.ip-watch.org/weblog/index.php?p=1157
By Kaitlin Mara
Records of human history and creativity - glimpses into the past caught
on papyrus or in carefully preserved books - might themselves become
things of the past without better ways to create permanent record in an
increasingly digitised world, said speakers at a 15 July conference at
the World Intellectual Property Organization.
“One
of the fundamental challenges of the day,” said keynote speaker
Clifford Lynch of the Coalition for Networked Information, is
establishing “a culture that honours stewardship.” He added that “our
intellectual legacy” is “more fragile than in the past” due to both
ease of elimination of copyrighted works - thanks to centralised
databases, rather than dispersed print copies - and difficulty involved
in legal copying.
The event, titled “International Workshop on Digital Preservation and Copyright,”
brought together librarians, lawmakers, publishers and archivists on 15
July to discuss the state of play of copyright law on digital works,
and strategise ways to better preserve digitised culture.
International Study
Co-sponsors
to the WIPO event - the United States Library of Congress National
Digital Information Infrastructure and Preservation Program, the Joint
Information Systems Committee of the United Kingdom, the Australian
Open Access to Knowledge Law Project at Queensland University of
Technology, and the Dutch SURFfoundation - published this month an
extensive “International Study on the Impact of Copyright Law on Digital Preservation,” examining the various applicable laws in the four countries, and issuing recommendations to encourage digital preservation.
Common
themes also were found in the opening panel discussing various
jurisdictions’ ways of dealing with potential conflicts between
preservation and copyright. Applying a “three step test,” which asks if
an action is a special case that will infringe upon neither the normal
interests of the rights holder nor the rights holder’s ability to
exploit the work, before allowing copyright exceptions was common in
many jurisdictions, said Adrienne Muir of Loughborough University in
the United Kingdom.
But it is also widely recognised that current copyright laws are not modern enough to reflect the online world, she added.
Existing
legislation, explained Ben White of the British Library, is “too based
on analogue” publications. For instance, there are laws that allow for
copying of copyright work to replace a lost or damaged part of a
library’s permanent collection. But “what is a permanent collection,”
asked White, “if it is digital?”
Ten recommendations made at
the end of the international study call for measures to save “at risk”
copyright material, including by granting necessary privileges to
public institutions, such as libraries or museums, so that they may
preserve copyrighted material against loss, damage, deterioration, or
technical obsolescence. It is explicitly acknowledged that
“reproduction and retention” of copies of the work, transfer of the
work to different formats to keep pace with technology, and
communication of the work between preservation institutions might be
necessary for effective preservation.
June Besek of Columbia
Law School in the US explained one reason why making copies is
necessary. In US copyright law, copies are allowed for missing, damaged
and hard to replace copyright works. But, she said, in the digital
world damage can occur quickly and without warning. In situations like
these, the old laws do not allow for proactive preservation.
Alejandro
Martín of the Biblioteca del Banco de la República in Colombia
illustrated the need for digital updates to copyright law when he spoke
of the divide between wealthy and poor, urban and rural areas in his
country and the need to be able to transfer information - preferably
digitally - between branches of the national library.
Archivists,
says the international study, should work with rights holders to allow
preservation without harming the interest of content creators. Its
authors add that further research is needed on how to provide access to
copyright content once archived.
Orphans, Access, and Time
Digital
preservation also brings with it additional questions that were not
possible under the old analogue system. Previously, explained Lynch,
the idea of preservation was that individuals at some point would
access the data directly. But now there is a desire to analyse
documents and data - digital uses of archiving that will need different
kinds of regulation.
There also is a problem of choosing what
to preserve. Magdy Nagy from the Bibliotheca Alexandria in Egypt told
of his library’s initial attempt to archive television programs, in
which they found it would take 6 hours to annotate a single hour of
content for later searching. In this case, he said, copyright was less
a difficulty than time.
Howard Besser of New York University
brought up the problem of orphan works, those for which the rights
holder is not known or cannot be found. It is important to answer the
question, he said, of how to deal with such material.
Abbie
Grotke of the US Library of Congress spoke of fair use in internet
harvesting - and how it plays into the kinds of websites that can be
collected. After September 11, 2001 she said, the library started
collecting all the data it could, sending notifications to “info@” and
“webmaster@” addresses. But now they are trying to get permission from
sites they archive, especially creative sites and blogs. Lack of
response to requests of permission is a big problem: some 70 percent of
those emailed do not answer.
And finding the proper addresses
of site owners is time consuming. It took 10,000 work-hours, she said,
to archive the internet coverage of the 2004 election in the United
States.
Access, too, poses important questions. Whereas there
were previously physical barriers to accessing archived material - one
had to get to a library, and be granted permission to access the
archives - digitisation makes ease of access much simpler, and thus
increases the need for clear access regulation.
Several
e-journal archivists spoke about the kinds of ‘trigger events’ that
would lead them to allow libraries access to archived content. These
include the publication ceasing its operation, the e-journal becoming
no longer available, or the catastrophic failure of the libraries
resources (such as a blackout).
But then, user access also is a
question. Electronic journal archives represent the “minutes of
science,” said White, so it is important for researchers to be able to
see them. The leading modern malaria drug, he said by way of example,
was re-discovered when researchers went through a post World War II
archive of Chinese medical journals.
Newspaper archivists said
charging for content is in question. The industry is heading in the
direction of free content, panellists said, but did not know how the
trend would last. Catherine Müller of the Swiss Press said advertising
was becoming the business model, while Anne Louise Schelin, of the
International Federation of Journalists in Denmark, said that libraries
“have always offered something for readers that means a loss of income
for publishers.” Digitisation must satisfy rights holders, but, said
Schelin, there is also a right of open access for users.
Costs
of library archives was further raised as a concern. It is cheaper to
archive immediately, said White, who added that waiting years for
publisher permission to store copies sends prices “through the roof.”
Exceptions and Limitations Needed for Least Developed Countries
But
none of these discussions are directly applicable to least developed
countries, Riaz Tayob of the Third World Network said at the event. No
least developed nations were represented in the WIPO discussion. The
situation is different in these locations, said Tayob, so there must be
special provisions. Free trade agreements causing convergence in
copyright law, or causing LDCs to adopt copyright law as practiced in
more developed nations, are not necessarily beneficial for the poorest
countries. Measures like compulsory licensing, or alternative licensing
- such as the Creative Commons model - for preservation purposes should
be discussed.
Kaitlin Mara may be reached at kmara@ip-watch.ch
