Diesen Beitrag in Deutsch lesen
Study – Paul Keller
Current EU law gives Member States the option to introduce an exception allowing for ‘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’.
In line with this, many countries do clearly include preservation copying among their exceptions to copyright (see a full list at CopyrightExceptions.eu), either explicitly in the form of a preservation exception, or as part of a broader exception for libraries and other cultural heritage institutions, similar to the text of EU law. However, it is still common for there to be implicit or explicit limits on the way in which copies are made, the formats of the original or new version, and on the number of copies made. These all serve to restrict the possibility to use digitisation – i.e. the creation of digital copies and their appropriate storage – to achieve the mission of cultural heritage institutions. A further complication linked to digitisation is the fact that the equipment necessary for this is often expensive, and given levels of use, it does not necessarily make sense for each cultural heritage institution to have its own. In response, it is common to form partnerships or networks – including across borders – which allow for a more effective use of public money, as well as a better outcome (i.e. more works preserved for the future). Similarly, once a copy is made, it may also make sense to store copies in servers across a number of countries in order to minimise the risk of permanent loss.
However, any cross-border applications of exceptions and limitations have, in the past, been hampered by inconsistency between laws, and uncertainty as to their legality in general. The new mandatory preservation exception introduced by the DSM Directive addresses this issue.
Article 6 of the Directive requires Member States to introduce an exception to copyright and related rights in their national laws in order to allow cultural heritage institutions (CHIs) to make reproductions of works that they have in their collections for preservation purposes.
This not only represents a step forwards in terms of the strength of the exception (rather than Member States being given the option of introducing an exception, this is now mandatory), but also ensures that libraries, archives and museums should not face any unnecessary restrictions on how they carry out this copying. Moreover, it makes it clear that it is legal to work across borders in order to carry out preservation, for example through networks or the sharing of equipment.
In the implementation process, it will nonetheless be necessary to ensure that cultural heritage institutions face minimal restrictions on the type of works that can be copied or by technical protection measures applied to the works that need to be preserved.
During the legislative proceedings that led to the Directive, cultural heritage institutions had argued that the scope of the exception should be expanded to allow cultural heritage institutions to make reproductions for any internal uses related to their public mission. While the final text of the Directive does not reflect this desire Member States should keep in mind that there are many legitimate reasons other than preservation (such as for administration, cataloguing, bibliography or for insurance purposes) for CHIs to make reproductions. Member States should therefore explore possibilities to go beyond the narrow focus on preservation (see the section on Article 25 below).
In general the new exception represents a step forward for cultural heritage institution. There are however some related issues that can impact the usefulness of the exception:
Rapid TPM removal
The Preservation exception is covered by Article 7, which rules both that the terms of contracts, and technological protection measures should not prevent copying for preservation purposes.
Article 7 specifies that Member States must not give legal protection to Technological Protection Measures (TPMs) that would prevent cultural heritage institutions from exercising their rights to make reproductions under this exception. TPMs are a reality that cultural heritage institutions increasingly have to deal with and which they will encounter when making preservation copies under the exception. Unfortunately the Directive provides little clarity about the process to be followed in order to remove these.
The Directive underlines that rightholders should, first of all, be given the possibility to remove technological protection measures that prevent enjoyment of the exception. This could be problematic if it leads to long delays for cultural heritage institutions looking to carry out preservation work, with a need to apply for voluntary changes each time a TPM is encountered. It will be important to ensure that such a process is quick and simple in order to ensure that cultural heritage institutions do not face unreasonable delays. To achieve this goal, Member States should stipulate that TPMs have to be removed by the rightholders within 72 hours after a request (See also the separate section on Article 7 below).
Expansive list of works in permanent collection
One of the most important conditions of the exception is that it applies only to “works or other subject matter permanently in the collections of a cultural heritage institution”. Recital 29 clarifies that this should be understood to include situations when works or other subject matter is ‘owned or permanently held’, for example because the cultural heritage institution owns the work outright, has signed a licence agreement, has permanent custody, or holds the work under legal deposit rules. Cultural heritage institutions have identified two areas where there is some uncertainty: (1) Works that are licensed but stored on third party servers to which the institution gets access under the terms of the license. And (2) works that are held on the basis of long term loan agreements. In both cases Member States should clarify that such works are included in the scope of the Directive.
Open list of purposes
The new exception permits copying, regardless of the format or the medium of reproduction, and with the appropriate tool, means or technology, with the only rule being that any reproduction should only take place to the extent necessary for the purpose of preservation. The Recitals note digitisation as a particular example of this of preservation. During the legislative process cultural heritage institutions had argued that the exception should be expanded to cover any internal uses related to the institutions public interest mission. In this light, Member States should adopt an expansive definition of preservation to include other relevant activities such as cataloguing and bibliography. This could be based on the rationale that any type of reproduction associated with the survival of work should be permitted.
Article 25 of the new DSM Directive further allows Member States to adopt or maintain in force broader provisions which are compatible with the exceptions which are covered in the Database and InfoSoc Directives. The room provided by this provision should be used by Member States to enable other reproductions for internal and to enable web harvesting by cultural heritage institutions (see the section on Article 25 for more detail)
The new exception established by Article 6 of the Directive has been one of the least controversial elements of the proposed Directive. The language of the Article is straightforward and provides clear benefits to cultural heritage institutions and the uses authorised by the exception do not have the potential to cause any significant harm to rightholders. It is therefore unlikely that the implementation of this Article will result substantial discussions. By taking into account the issues identified above national lawmakers can maximise the benefits to cultural heritage institutions and their users.