WIPO Event Addresses Tensions Of Librarians And Publishers In Digital Archiving

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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

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