It is common knowledge that copying or making derivative works is subject to authorization from the copyright owner. However, is this requirement that univocal when this is done for preservation purposes? Here you can find an outline description of the current regulation related to preservation copies of protected works
Mediator, Business Writer, Trademark and Patent Attorney
Preservation copies of protected works
Cultural heritage needs to be preserved. Probably no one would object to this statement. The devil, however, as usual, is hiding in detail. For example, one of the arguments in the world-famous art dispute over the Parthenon marbles is the preservation of cultural heritage. Following this argumentation, had the Parthenon marbles remained in Athens, they probably would have shared the sad fate of other valuable ancient sculptures destroyed and mutilated over time. Does this substantiate taking the Parthenon marbles from Athens, and keeping them “in custody” in London is a different question still to be decided.
Taking something “in custody” is just one way to preserve cultural heritage (without giving the evaluation of righteousness of such an action). Another way to preserve cultural heritage for the future would be to make preservation copies. However, this way is not without grey areas either. In particular, here one would come in conflict with the rights normally vested in the copyright owner. Namely, copying in copyright law is called reproduction, and this is one of the fundamental rights of the copyright owner. Besides, in the past, preservation usually meant repair or restoration of the actual hard copy showing signs of deterioration. In modern times there is more complexity to this.
First of all, there are born-digital works while this does not necessarily mean that such works are saved in the eternally accessible format on the eternally usable medium. How many computers are still able to read a floppy disc, for instance? Would it be substantiated to convert a file containing copyrighted material stored in a redundant format (or on the old carrier) into a modern and easily accessible one? Who can do that? Does one need an authorization from the copyright owner? Would it be a violation of copyright if done without such an authorization?
Second, also the actual physical works would benefit in many ways from digital preservation. In this case, there are several benefits. The first benefit is the preservation itself, and the second — the ease and accessibility for study and research purposes (which indirectly also adds to the preservation of the actual physical embodiment of a work). This case of digitization essentially is the creation of a derivative work. However, the same as with the right of reproduction, also the right of making derivative works normally belongs to the copyright owner.
Of course, in many countries, there is already some sort of provisions allowing for the preservation copies to be made by the cultural heritage institution*, yet, for example, digitization or the safeguarding of born-digital works is frequently not allowed. Also, digitization of the actual physical works might face certain hurdles. For instance, in 2014 there was a case before the European Court of Justice — C-117/13 Technische Universitat Darmstadt vs. Eugen Ulmer KG (Ulmer case). The issue at stake was the interpretation of Article 5(3)(n) of the InfoSoc Directive (Directive 2001/29/EC). In short, in this case, a library of the Technical University scanned a book, where copyright belonged to Eugen Ulmer, the publisher. The publisher considered this to be a violation of his rights and initiated the legal proceedings. In the Ulmer case, the Court ruled that the Article in question is to be read in conjunction with Article 5(2)(c) of the InfoSoc. This means that the Member States would be allowed to grant publicly accessible libraries the right to digitize the works in their collections. What one needs to take into account is that the mentioned provisions of the InfoSoc are optional in nature and very specific in their wording. This hardly brings much to the cross-border harmonization of the matter. Hence, this and certain other issues were considered when adopting the European Directive 2019/790 as of April 17, 2019 (also known as DSM — Digital Single Market — Directive), which has to be transferred into the national laws of Member States before June 07, 2021.
Among others, the DSM Directive is aimed at opening up the possibilities of digital technologies for research, data analytics, education, and heritage preservation. The DSM Directive addresses the cross-border nature of copyright use characteristic of modern times. In plain words, the market has become increasingly digital and interconnected, which calls also for the copyright issues to get up to speed with that development. One of the significant changes introduced by the DSM Directive in this sense is four (this time) mandatory exceptions. They are exceptions for text and data mining for (1) research, (2) general purposes, and (3) teaching and educational purposes, as well as for (4) preservation of cultural heritage.
Preservation of cultural heritage is addressed in Article 6 of the DSM Directive, while Recitals 25-29 of the said Directive elaborate on the details of its scope and objective.
Article 6 reads as follows:
“Preservation of cultural heritage
Member States shall provide for an exception to the rights provided for in Article 5(a) and Article 7(1) of Directive 96/9/EC, Article 2 of Directive 2001/29/EC, Article 4(1)(a) of Directive 2009/24/EC, and Article 15(1) of this Directive, in order to allow cultural heritage institutions to make copies of any works or other subject-matter that are permanently in their collections, in any format or medium, for purposes of preservation of such works or other subject matter and to the extent necessary for such preservation.”
Therefore, following this Article of the DSM Directive, cultural heritage institutions or the third parties on their behalf can copy works (and other subject matter) in their permanent collections, for free, without seeking permission from the copyright owner, and in the required number of copies for the preservation purposes. This makes it possible to preserve the EU Cultural Heritage through digitization. Furthermore, which is also very important, the mandatory nature of Article 6 provides a foundation for cross-border cooperation between libraries of different Member states. It also enables sharing the means of preservation, the establishment of preservation networks, and relying on third parties for the making of copies, should that be necessary.
To stress, however, that Article 6 deals exclusively with the preservation of cultural heritage. This means that, for example, such internal uses as cataloging or indexing, or any other use related to the management of collection, are excluded from the scope of Article 6. For the copying of works for such uses, the cultural heritage institution would still require the authorization of the copyright owner.
Another aspect excluded from the scope of Article 6 is the preservation of works which the cultural heritage institution has access to, for example, on the third-party platforms (servers). The Article explicitly stresses that the works need to be in the permanent collection of a cultural heritage institution. What is meant by the "permanent collection" is explained in Recital 29 of the DSM Directive.
Recital 29 reads as follows:
“For the purposes of this Directive, works and other subject-matter should be considered to be permanently in the collection of a cultural heritage institution when copies of such works or other subject-matter are owned or permanently held by that institution, for example as a result of a transfer of ownership or a license agreement, legal deposit obligations or permanent custody arrangements.”
In case certain Member states would choose to go beyond the scope of Article 6, that might result in addressing also the above-mentioned issues. However, even in its basic (mandatory) form, the Article 6 of the DSM Directive provides a solid foundation for the cultural heritage institutions to carry out their duties in the new digital era and to act upon their mission of ensuring the preservation and accessibility of works for our and future generations.
*As a side note on the non-EU regulation:
In the US, aside from the Section 108 of the Copyright code, allowing libraries and archives to reproduce copyrighted works under certain conditions, there is also a fair use provision which could be relied upon. Thus, making preservation copies, should it be done for non-commercial purposes, would most likely be considered socially beneficial and, hence, falling within the scope of “fair use”. This, however, would be up to the courts to confirm in each particular case and, furthermore, this provision is not applicable in Europe.