Copyright and Preservation

What is Preservation?

Preservation by cultural heritage institutions - libraries, archives and museums - is aimed at preventing the long term loss or damage of certain, important material, and to ensure its continued availability. The criteria by which material is selected for preservation projects are usually set out in an institutional policy that typically includes works of high cultural or social significance, such as those relating to the language, history and culture of a nation or its people. Preservation practices vary according to the medium, condition, cost and legal status of the material, such as print, audiovisual or digital formats; rare or fragile; in-copyright or in the public domain. Preservation is carried out by skilled professionals using specialist equipment and it is done in accordance with international best practices and standards, sometimes in collaboration with institutions in other countries.

At its most basic, preservation involves three steps, each of which implicates copyright: the making of a copy (whether on paper, film or digital); the making of regular backups and security copies; the ability to make the replacement copy available to users when the original has become damaged, obsolete, lost, or is severely at risk. (In some cases, the original work may be held in storage while the security copy is offered for regular use). Digital media is especially vulnerable to loss: fast changing file formats and technological obsolescence mean that preservation should happen early and often (known as format shifting and preemptive preservation). The process of web archiving ensures that frequently changing websites or websites that disappear (known as “link rot”) are also preserved as an invaluable resource for future scholars and social scientists researching issues such as the impact of the COVID-19 pandemic on society, for example.

Member States at WIPO’s Standing Committee on Copyright and Related Rights (SCCR) have recognized the importance of preserving a nation’s cultural heritage especially when faced with threats posed by natural disasters, war and conflict, fire and floods, and climate change (particularly small island nations). They agree that the copyright laws in many countries, especially in the developing world, do not have adequate preservation exceptions: over a quarter of WIPO member states do not expressly permit preservation at all, even for print formats. As a first step towards addressing the problem, WIPO published a Toolkit on Preservation (2023) to guide lawmakers, librarians and other cultural heritage professionals in crafting more coherent and authoritative legislation for preservation copying. A follow-on toolkit on access to preserved works is planned. 

What is EIFL’s position on Preservation?

EIFL advocates for a mandatory exception for preservation in copyright law.

At national level, EIFL advocates for a strong, effective exception for preservation that allows access to preserved works.

  • The exception should be format neutral, enable preemptive preservation and apply to all types of works, including unpublished works.
  • It should allow the making of as many copies as reasonably required to meet the preservation purpose (some copyright laws prescribe a maximum number of copies, such as three, which doesn’t take into account digital preservation that may require the making of more copies as part of the technological process).

It should also allow access to preserved works (under certain conditions). Works are preserved to be read and used, not to be a dark archive where access and use is prohibited. Access is typically provided to researchers and other users on the same terms as other works in the collection. In the case of material that is fragile, it is designed to protect the original.

At international level, EIFL supports the introduction of global rules at WIPO on preservation that could be enabled by a treaty or other effective international instrument.

  • EIFL supported the development of the WIPO Toolkit on Preservation. Launched in 2024, the Toolkit represents a major step forward in promoting modern preservation exceptions. It provides national legislators and cultural heritage professionals with practical guidance on how to craft an exception that enables preservation of material in library collections using 21st century digital technology. In particular, it affirms that anticipatory preservation is critical to meet the many threats to the collections of cultural heritage institutions, including the fires and floods brought on by climate change and the illicit trafficking of cultural property.
  • Only WIPO can drive the change needed to address the lack of effective preservation exceptions in member states, and only WIPO can resolve the issue of cross-border access to preserved works. The issue is urgent. For example, in 2021, Africa lost a part of its history in a devastating fire at the University of Cape Town: due to copyright restrictions, some items in the library’s collection had no digital backups

 

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