copyright and digital preservation. overview 1.what is copyright and copyright infringement?...
TRANSCRIPT
Copyright and Copyright and Digital Digital
Preservation Preservation
OverviewOverview1.1. What is copyright and copyright infringement?What is copyright and copyright infringement?2.2. Relationship between preservation and copyrightRelationship between preservation and copyright3.3. Difference between analogue and digital preservationDifference between analogue and digital preservation4.4. ‘‘Best practice’ in preservation Best practice’ in preservation 5.5. How copyright law deals with preservation copying How copyright law deals with preservation copying 6.6. Current Copyright Act 1968Current Copyright Act 19687.7. Proposed new exceptions under Copyright Proposed new exceptions under Copyright
Amendment Bill 2006 Amendment Bill 2006 8.8. Analysis of whether existing and proposed exceptions Analysis of whether existing and proposed exceptions
accord with best practice preservation copying accord with best practice preservation copying 9.9. Practical measures to minimise risk of infringing Practical measures to minimise risk of infringing
copyright in undertaking preservation copyingcopyright in undertaking preservation copying. .
Legal risks to be managed Legal risks to be managed in digital preservation:in digital preservation:
Ownership of the contentOwnership of the content – – copyrightcopyright
Legality of content and using the Legality of content and using the content content Defamation, privacy, breach Defamation, privacy, breach of confidentiality, content regulation, of confidentiality, content regulation, ICIPs, breach of contract ICIPs, breach of contract
Duty of care over physical itemsDuty of care over physical items
WHAT IS COPYRIGHT?WHAT IS COPYRIGHT? The exclusive The exclusive right to copy and otherwise use right to copy and otherwise use
copyright material copyright material (eg literary, dramatic, musical or (eg literary, dramatic, musical or artistic ‘works’; films, sound recordings and published artistic ‘works’; films, sound recordings and published editions) editions) and to stop other people copying and to stop other people copying your your copyright material.copyright material.
““Bundle” of exclusive rightsBundle” of exclusive rights reproduce /copyreproduce /copy communicate (eg internet/intranet /publicly accessible communicate (eg internet/intranet /publicly accessible
collections database)collections database) make an adaptationmake an adaptation
Copyright infringement: Copyright infringement: using or authorising the using or authorising the use ofuse of
all or any “substantial part” (an important, essential or all or any “substantial part” (an important, essential or distinctive part) of copyright materialdistinctive part) of copyright material
in one of the ways exclusively reserved to the copyright in one of the ways exclusively reserved to the copyright ownerowner
without permission / licence of copyright ownerwithout permission / licence of copyright owner
Copyright infringementCopyright infringementLibraries and cultural institutions and their Libraries and cultural institutions and their
patrons/userspatrons/userswill infringe copyright where they will infringe copyright where they photocopy, digitise,photocopy, digitise,download, or otherwise reproduce or use copyright download, or otherwise reproduce or use copyright
materialmaterial from fromthe collection unless:the collection unless: they own the copyright/IP in information /content in itemthey own the copyright/IP in information /content in item
the material is no longer protected by copyright (ie, the material is no longer protected by copyright (ie, public domain material)public domain material)
the copying is permitted by an exception in the Copyright the copying is permitted by an exception in the Copyright Act (eg, one of the library and archive exceptions)Act (eg, one of the library and archive exceptions)
libraries have direct permission/licence of copyright ownerlibraries have direct permission/licence of copyright owner
PRESERVATION & PRESERVATION & COPYRIGHT COPYRIGHT
Why make preservation copies?Why make preservation copies? to provide accessto provide access ie, to ensure historically, scientifically and socially valuable ie, to ensure historically, scientifically and socially valuable
material continues to be available for researchers, students, material continues to be available for researchers, students, government, academics, life-long learners - i.e., there is a government, academics, life-long learners - i.e., there is a general general public benefit. public benefit.
Types of material held in collections Types of material held in collections covers a range of works protected by covers a range of works protected by copyright:copyright:
literary workliterary work - manuscripts, articles, books, websites & blogs – - manuscripts, articles, books, websites & blogs – literary work and sometimes published edition copyright (for e-literary work and sometimes published edition copyright (for e-publications and online subscriptions) plus protection for publications and online subscriptions) plus protection for
artistic workartistic work – images, digital photos, graphics, thumbnail – images, digital photos, graphics, thumbnail images – artistic worksimages – artistic works
cinematograph filmcinematograph film – VHS, DVS, 35mm film, computer games – VHS, DVS, 35mm film, computer games sound recordings & musical workssound recordings & musical works – CDs , MP3’s, vinyls – CDs , MP3’s, vinyls
Difference between traditional Difference between traditional preservation /conservation and preservation /conservation and
digital preservationdigital preservation
Analogue / print based preservation - Analogue / print based preservation - focus on preserving “artefact” as well as focus on preserving “artefact” as well as content content
Digital preservationDigital preservation - preserving integrity - preserving integrity of information /content and retaining the of information /content and retaining the ability of clients to retrieve, display and ability of clients to retrieve, display and otherwise use materials in face of constantly otherwise use materials in face of constantly changing technologychanging technology
Analogue / print based materials
Tangible artefacts/objects – Tangible artefacts/objects – libraries libraries /institutions acquire and own a discrete /institutions acquire and own a discrete information object – object accessioned into information object – object accessioned into and forms part of the collectionand forms part of the collection
Actual artefact vulnerable to physical Actual artefact vulnerable to physical deteriorationdeterioration
Focus mainly onFocus mainly on maintaining the maintaining the “artefact” in order to preserve the “artefact” in order to preserve the contentcontent
…………..therefore copyright not always therefore copyright not always exercisedexercised
Digital materials Digital materials Comprised of both tangibleComprised of both tangible (eg, DVDs, CDs-Roms) and (eg, DVDs, CDs-Roms) and
intangible artefectsintangible artefects (eg, websites, JPEG music files, wav and (eg, websites, JPEG music files, wav and tiff files [music and images])tiff files [music and images])
Have a relatively short lifespan compared with analogue Have a relatively short lifespan compared with analogue materialmaterial as as
fragile & vulnerable to fragile & vulnerable to deterioration/decomposition deterioration/decomposition technological changetechnological change – media & hardware obsolescence – media & hardware obsolescence
……..requiring:……..requiring: Refreshment of digital mediaRefreshment of digital media by copying it onto new by copying it onto new
formatsformats MigrationMigration:: transfer of data to new storage media and transfer of data to new storage media and
new formats (ie, format shifting) within a short time-new formats (ie, format shifting) within a short time-frame from original creationframe from original creation
EmulationEmulation using contemporary software/hardware using contemporary software/hardware technologies to recreate obsolete hardware/software technologies to recreate obsolete hardware/software experiencesexperiences
……..therefore digital preservation involves exercise of therefore digital preservation involves exercise of copyright - reproduction (incl digitisation), copyright - reproduction (incl digitisation), adaptation, communicationadaptation, communication
Rights in content and associated software may Rights in content and associated software may belong to number different individuals belong to number different individuals /organisations/organisations
Digital info may be protected by technology to Digital info may be protected by technology to prevent unauthorised copyingprevent unauthorised copying
TPMs – digital locks, encryption, access controlsTPMs – digital locks, encryption, access controls
Many institutions may only have right to access Many institutions may only have right to access rather than “own” digital objects.rather than “own” digital objects.
Can be easily compressed - entire item usually Can be easily compressed - entire item usually copied/reproduced rather than part of item.copied/reproduced rather than part of item.
What is 'best practice' in What is 'best practice' in preservation? preservation?
““Best practice” can be assessed Best practice” can be assessed by looking at:by looking at:
what should be copied? – ie what should be copied? – ie preservation prioritiespreservation priorities
how the material should be how the material should be copied? – technical aspectscopied? – technical aspects
What should be copiedWhat should be copied? ? out of print out of print fragile or vulnerablefragile or vulnerable of high research valueof high research value rare/unique and/or valuablerare/unique and/or valuable Heavily used (ie, Heavily used (ie,
prospective/preventative copying)prospective/preventative copying)
analogue preservation - technical aspectsanalogue preservation - technical aspects
Copies to faithfully and Copies to faithfully and as accurately as as accurately as possible reproduce original…possible reproduce original…no alteration, no alteration, tampering, restorationtampering, restoration
Materials are vulnerable to Materials are vulnerable to generational lossgenerational loss
Compression can be a constraintCompression can be a constraint around around making high quality copies– solution is to make making high quality copies– solution is to make multiple copies multiple copies
Often involves making Often involves making intermediate copiesintermediate copies (especially AV material)(especially AV material)
Digital preservation - technical aspectsDigital preservation - technical aspects
Copies to faithfully and Copies to faithfully and as accurately as as accurately as possible reproduce original…possible reproduce original…no alteration, no alteration, tampering, restorationtampering, restoration
Data compressionData compression fundamental constraint fundamental constraint around reproduction of high quality copiesaround reproduction of high quality copies
Can be Can be overcome byovercome by gradual compression of gradual compression of content via content via multiple copyingmultiple copying
Digital preservation Digital preservation 3 stages of compression (3-5 3 stages of compression (3-5
copiescopies))
Stage 1 – Stage 1 – digital surrogate / ‘master digital surrogate / ‘master duplicate’duplicate’
UNESCO – UNESCO – Guidelines for the Preservation of Digital Guidelines for the Preservation of Digital Heritage Heritage
Australian standard for management of essential Australian standard for management of essential business info and softwarebusiness info and software
BOTH recommend at least 3 digital surrogates be madeBOTH recommend at least 3 digital surrogates be made
Stage 2 – working /distribution copyStage 2 – working /distribution copy
Stage 3 – browsing/acess copyStage 3 – browsing/acess copy
HOW DOES COPYRIGHT LAW HOW DOES COPYRIGHT LAW TREAT PRESERVATION TREAT PRESERVATION
COPYING?COPYING?
Current preservation Current preservation exceptionsexceptions
Right to preservation copying limited byRight to preservation copying limited by type of usertype of user – – cultural institutions, not general rightcultural institutions, not general right format of materialformat of material – tangible/permanent materials – tangible/permanent materials type of collection itemtype of collection item
Pres copyingPres copying - “ - “originals” (originals” (s 51A(1)(a), s 51A(1)(a), ss110B(1)(a) & ss110B(1)(a) & 110B(2)(a)) 110B(2)(a))
Replacement copyingReplacement copying - - published materials not published materials not commercially available where material lost, stolen, damaged, commercially available where material lost, stolen, damaged, deteriorated (s51A, 110B)deteriorated (s51A, 110B)
Other materialOther material – – pres copying requires licence/permissionpres copying requires licence/permission type of usetype of use
Copying and digitisationCopying and digitisation Communication / providing accessCommunication / providing access – limited rights – limited rights
Q2. Is the use permitted by a copyright exception?
YES NO
The current library and archive exceptions allow:
1. Preservation copying {s 51A(1)(a), ss110B(1)(a) and 2(a)} – ‘Originals’ only
2. Replacement copying {s51A, 110B}
Published works, sound recordings and films IF:
* item lost, stolen, damaged, deteriorated
* replacement copy not otherwise commercially available
Q3. Are you a Key Cultural Institution?
Q1. Does preservation involve copying ?
YESNO
Proposed “Significant works” exception (ss 51B/110BA) allows:
1 copy (ie, a “single reproduction”) of most collection material (including digitisation) IF
* Item not otherwise commercially available (taking into account availability of electronic copy)
Proposed flexible dealing (s 200AB(1) & (2)) if:
•operating / maintaining library - usual services• no commercial advantage IF……three-step test can be met
Commercial / for profit use = seek permission / licence from copyright owner.
OTHER USES? eg. – multiple copies; communicating single reproduction or multiple copies (eg, online or on dumb terminal); providing copies for access
Proposed new exceptions – Proposed new exceptions – Copyright Amendment Bill Copyright Amendment Bill
20062006 (CAB) (CAB)1.1.Special exception for Key Cultural Special exception for Key Cultural
Institutions reproducing significant works Institutions reproducing significant works (ss (ss 51B, 110BA, 112AA)51B, 110BA, 112AA)
AdvantagesAdvantages Not purpose-specificNot purpose-specific Allows a broader range of works to be copiedAllows a broader range of works to be copied
LimitationsLimitations:: Not relevant to many cultural institutions Not relevant to many cultural institutions Only permits a single reproduction /copy to be madeOnly permits a single reproduction /copy to be made Does not allow further communication of materialDoes not allow further communication of material Preservation /other copying cannot take place Preservation /other copying cannot take place
during the commercial lifetime of the workduring the commercial lifetime of the work (incl. (incl. taking into account availabilty of electronic copy)taking into account availabilty of electronic copy)
2.2. Flexible dealing exception for cultural institutions Flexible dealing exception for cultural institutions and others – s 200ABand others – s 200AB(1)(1)
Copyright in a ‘work’ or ‘subject matter’; not infringed byCopyright in a ‘work’ or ‘subject matter’; not infringed bya a use use where:where:a)a) the circumstances of the use amount to a the circumstances of the use amount to a special casespecial case
b)b) the use is covered by one of the the use is covered by one of the subsectionssubsections
c)c) the use does not conflict with the use does not conflict with a normal exploitationa normal exploitation of the work/ subject-matter; ANDof the work/ subject-matter; AND
d)d) the use does not unreasonably prejudice the use does not unreasonably prejudice the the legitimate interestslegitimate interests of the copyright owner (or their of the copyright owner (or their licensee)licensee)
s 200AB(2)s 200AB(2) A use is made by or on behalf of a library or A use is made by or on behalf of a library or
archivesarchives
The use is for the purpose The use is for the purpose of maintaining of maintaining or operating the library or archivesor operating the library or archives (including operating the library or archives (including operating the library or archives to provide a service to provide a service of a kind usually of a kind usually providedprovided by a library or archives). by a library or archives).
The use is not partly for the purpose of the The use is not partly for the purpose of the body maintaining a body maintaining a commercial advantage commercial advantage
‘‘Flexible dealing’Flexible dealing’
Advantages Advantages Not purpose-specificNot purpose-specific Far more flexible than key Far more flexible than key
cultural institutions / significant cultural institutions / significant works exceptionsworks exceptions
…………....BUT “three step test” must be BUT “three step test” must be metmet
Preservation & the three-Preservation & the three-step teststep test Is preservation copying ever a normal Is preservation copying ever a normal
exploitation of a work?exploitation of a work? commercial archiving/preservation services limited, usually commercial archiving/preservation services limited, usually
operated by 3operated by 3rdrd party service providers not publishers / © owners party service providers not publishers / © owners of born digital material. of born digital material.
Is there a legitimate interest in controlling when pres Is there a legitimate interest in controlling when pres takes place, or receiving remuneration from it?takes place, or receiving remuneration from it?
Depends on type of material…..no markets for AV pres copying Depends on type of material…..no markets for AV pres copying services, given high cost and technical complexity in pres copying services, given high cost and technical complexity in pres copying AV material compared with documentation/images.AV material compared with documentation/images.
Is ‘commercial availability’ relevant?Is ‘commercial availability’ relevant? Yes…but duplicate masters of digital or analogue materials will Yes…but duplicate masters of digital or analogue materials will
not neccessarily compete with the e-commerce market not neccessarily compete with the e-commerce market format /size of preservation materials is considerably larger and format /size of preservation materials is considerably larger and
of higher resolution and quality than current formats distributed of higher resolution and quality than current formats distributed online (eg, MP3 files).online (eg, MP3 files).
Do existing and proposed Do existing and proposed copyright exceptions accord copyright exceptions accord
with best practice in with best practice in preservation? preservation?
Priorities Priorities for digital for digital preservatiopreservation copying n copying (per NLA (per NLA website)website)
Is preservation Is preservation copying copying permitted permitted under current under current Act?Act?
Proposed legislative Proposed legislative changes and ‘best changes and ‘best practice’.practice’.
Out of PrintOut of Print PARTIALLYPARTIALLYReplacement copying allowed if published material not otherwise commercial available and material damaged, deteriorated, lost or stolen
Key Cultural InstitutionsKey Cultural Institutions – –
PARTIALLYPARTIALLY - only single - only single reproduction /copyreproduction /copy
– – falls short “best practice” pres falls short “best practice” pres copying.copying.
Flexible dealingFlexible dealing – – YESYES::
– – allows multiple copying - as allows multiple copying - as materialmaterial
out of print likely to satisfy out of print likely to satisfy three-step testthree-step test
as no current market for as no current market for distribution ofdistribution of
copies.copies.
Fragile or Fragile or vulnerablevulnerable
PARTIALLYPARTIALLY – – original material original material ie, manuscripts, ie, manuscripts, original artistic original artistic works, SRs held as works, SRs held as a first record, CFs a first record, CFs held as a first film held as a first film can be copied.can be copied.
Key cultural institutions – PARTIALLY – only allow creation digital master (single reproduction/copy) and not working copies or low res access copies – potentially risk deterioration to digital master through need for repeated access.
Priorities Priorities for digital for digital preservatiopreservation copying n copying (per NLA (per NLA website)website)
Is Is preservatipreservation on copying copying permitted permitted under under current current Act?Act?
Proposed legislative changes Proposed legislative changes and ‘best practice’.and ‘best practice’.
Of high Of high research research valuevalue
NONO Key cultural institutionsKey cultural institutions
PARTIALLY PARTIALLY – only single – only single reproduction /copyreproduction /copy
and subject to commercial availability and subject to commercial availability testtest
(possibility works or electronic copies (possibility works or electronic copies may bemay be
available given work’s high research available given work’s high research value).value).
Flexible dealingFlexible dealing – LIKELY – LIKELY– as – as material maymaterial may
still be in print possibility copyright still be in print possibility copyright owner couldowner could
argue that pres copying could argue that pres copying could compete withcompete with
current distribution markets or current distribution markets or developingdeveloping
markets for archival copying. markets for archival copying.
Priorities for Priorities for digital digital preservation preservation copying (per copying (per NLA website)NLA website)
Is preservation Is preservation copying copying permitted under permitted under current Act?current Act?
Proposed legislative Proposed legislative changes and ‘best changes and ‘best practice’.practice’.
Rare/unique Rare/unique and/or valuableand/or valuable
YESYES – preservation – preservation copying of ‘original copying of ‘original materials’ - materials’ - manuscripts, original manuscripts, original artistic works, first artistic works, first copies of films and copies of films and first records of SRs.first records of SRs.
Key cultural institutionsKey cultural institutions – –
YESYES – but limited to single – but limited to single
copycopy
Flexible dealing Flexible dealing LIKELYLIKELY
Heavily used Heavily used (prospective/ (prospective/ preventative preventative copying)copying)
NO NO – unless:– unless:-original material original material
prospective/prospective/preventativepreventative
pres allowed pres allowed
Published material Published material – NO– NO
prospective/prospective/preventativepreventative
preservation copyingpreservation copying
- material must have - material must have beenbeen
damaged, damaged, deteriorated, lostdeteriorated, lost
or stolenor stolen
Key cultural institutions Key cultural institutions
PARTIALLYPARTIALLY – but limited to – but limited to singlesingle
copy and provided copy notcopy and provided copy not
commercially available commercially available (including(including
electronic copies)electronic copies)
Flexible dealings exceptionFlexible dealings exception
LIKELYLIKELY provided not likely to provided not likely to
compete with copyright compete with copyright owner’sowner’s
current or potential market for current or potential market for prespres
Copying. Copying.
Do existing and proposed Do existing and proposed copyright exceptions accord copyright exceptions accord with technical processes of with technical processes of
digital preservation? digital preservation?
ProblemProblem StrategyStrategy Copying Copying actionsactions
Potential Potential RisksRisks
Copyright issuesCopyright issues
Redundant Redundant potentially potentially obsolete obsolete mediamedia
Format shiftFormat shift Copy from Copy from one type of one type of digital digital medium to medium to another another (eg .wav to (eg .wav to MP3 MP3 derivative derivative access file) access file) or from or from analogue to analogue to digital formdigital form
Generational Generational lossloss
Data lossData loss
Hardware Hardware failurefailure
Insufficient Insufficient time available time available to migrate to migrate from one from one format to format to another.another.
Budget – Budget – migrating migrating sizeable data sizeable data collections is collections is expensiveexpensive
Material may Material may be protected be protected by a TPM.by a TPM.
Format shifting – YES Format shifting – YES
- significant works - significant works
- extended dealings - extended dealings exception.exception.
Multiple copies – YESMultiple copies – YES
- s 200AB provided - s 200AB provided three-stepthree-step
satisfiedsatisfied
No specific right to No specific right to create create backback
upsups of digital content – of digital content – but but –1–1
back-upback-up permitted (Key permitted (Key
Cultural Institutions Cultural Institutions exception)exception)
– – multiple back-upsmultiple back-ups (extended(extended
dealings)dealings)
New exceptionNew exception in in CopyrightCopyright
Regulations for Regulations for institutionsinstitutions
allowing allowing circumvention circumvention ofof
TPMsTPMs for preservation for preservation
––related copying. related copying.
Storage Storage problemsproblems
Disaster Disaster managememanagementnt
Create back-Create back-ups / replicasups / replicas
Copy from Copy from old medium old medium to new to new medium of medium of same type or same type or to new to new formatformat
ProblemProblem StrategStrategyy
Copying Copying ActionsActions
Potential Potential RisksRisks
Copyright Copyright IssuesIssues
Future Future proofing in proofing in light of light of degradation degradation to digital to digital content and content and format/hardwformat/hardware are obsolescence.obsolescence.
Media Media refreshmrefreshmentent
Format shift from Format shift from one format to one format to another.another.
May result in May result in loss of data.loss of data.
Not always Not always possible to possible to make an make an exact digital exact digital replica in face replica in face of changing of changing technologies.technologies.
Changes in Changes in functionality.functionality.
Changes in Changes in look and feel.look and feel.
Format Format shifting – shifting – YES:YES:
-significant -significant works works
-extended -extended dealingsdealings
exception.exception.
Multiple Multiple copiescopies
– – extendedextended
dealings dealings providedprovided
three-stepthree-step
satisfiedsatisfied
MigratioMigrationn
Periodic transfer Periodic transfer digital material digital material from one from one hardware/softwarhardware/software configuration to e configuration to anotheranother
ProblemProblem StrategyStrategy Copying Copying ActionsActions
Potential Potential RisksRisks
Copyright IssuesCopyright Issues
Hardware/Hardware/software software i.e. i.e. technology technology on which on which media / media / materials materials plays plays obsolescenobsolescencece
Emulate – Emulate – current or current or future future technologictechnological platform al platform (hardware (hardware or or software) software) mimics mimics older/obsololder/obsolete ete platform.platform.
Reverse Reverse engineer engineer hardwarehardware//
software.software.
Loss of look Loss of look and feel.and feel.
Loss of Loss of functionality.functionality.
Time Time consuming consuming and costly.and costly.
Far more Far more complex than complex than refreshing.refreshing.
No specific right to No specific right to emulate/reverseemulate/reverse
engineer digital content engineer digital content other thanother than
reverse engineer computer reverse engineer computer programsprograms
to make interoperable to make interoperable productsproducts
(s47D) (s47D)
Emulation/reverse Emulation/reverse engineeringengineering
likely covered by likely covered by extendedextended
dealingsdealings as emulation is as emulation is part ofpart of
preservation process (a preservation process (a service usuallyservice usually
provided by a provided by a library/archive) library/archive)
BUT NOT if owner of BUT NOT if owner of originaloriginal
hardware/software is hardware/software is marketingmarketing
upgraded technologiesupgraded technologies
(emulation may compete (emulation may compete withwith
owner’s market and fail 2nd owner’s market and fail 2nd and 3and 3rdrd
steps of three step test).steps of three step test).
Practical measures institutions Practical measures institutions can adopt in lieu of law reform can adopt in lieu of law reform to ensure they can undertake to ensure they can undertake “best practice” preservation“best practice” preservation
Contractually obtain rights under Contractually obtain rights under donation/deposit agreements to preserve donation/deposit agreements to preserve digital material accessioned into collections digital material accessioned into collections
Negotiate individual or blanket licences Negotiate individual or blanket licences with publishers / copyright ownerswith publishers / copyright owners
Advocate for expansion of legal deposit Advocate for expansion of legal deposit legislation Australia (requiring compulsory legislation Australia (requiring compulsory deposit of material with libraries deposit of material with libraries /institutions to include electronic and AV /institutions to include electronic and AV material)material)
Adopt a risk management approachAdopt a risk management approach
Erin DriscollErin Driscoll
Legal OfficerLegal OfficerAustralian Film CommissionAustralian Film Commission
[email protected]@afc.gov.au
ChairChairCopyright in Cultural Institutions (CICI) group Copyright in Cultural Institutions (CICI) group
http://www.nma.gov.au/about_us/copright_and_reproductionshttp://www.nma.gov.au/about_us/copright_and_reproductions/cici//cici/