Will there continue to be a content preservation function for the copyright laws?

First the bad news—Mrs Kat has reached the retirement age set by her employer and will soon be leaving her long-time position in information sciences. Now for the good news—Mrs Kat will shortly begin formal
retraining (replete with the grant of a diploma and all) to become an archivist, after which she will attend to the archives of her former institutional employer. Truth be told, this Kat is not quite sure what an archivist is meant to be doing, but my impression is that it is something about organizing what the institution knows (mostly) about its past and present so it can preserve those contents for future generations.

Within his personal swirl of trying to better understand the archive function, this Kat received this week a notice from yet another professional periodical to which he subscribes, advising him that the print edition of the journal will be discontinued. As I and my hoary co-generationalists are being reminded almost daily, with respect to journals and newspapers, physical copies are oh-so-yesterday. Unless this Kat augments his Kindle (the better to read the daily newspaper) with a proper tablet, he faces the prospect of having the portability of being able to read a physical journal-- wherever he wants --seriously constrained to the single corner in his home and office where internet connectivity will enable him to download the desired contents. More generally, how should he be viewing the question of what is the ultimate repository for content, when the fate of the relevant digital file may depend on the reliability of digital storage and back-up systems.

The thread that connects Mrs Kat’s foray into the world of archiving and the looming challenge of how this Kat will be accessing content going forward is the obligation of the copyright system to address the issue of the preservation of contents. In past times, preservation of contents, at least in an archival sense, was simply conceived. Whether the great ancient library of Alexandria, here, or the statutory requirement to deposit each new book in the library of Oxford or Cambridge, or at the U.S. Library of Congress, there was a sense that an enlightened society worth its name had to attend to gathering up as much published content as possible into a single place. Sure, there was the risk that the repository and learning contained therein might go up in smoke, as Umberto Eco reminded us in The Name of the Rose, here. But at least there was a supreme value placed on the preservation function. It's not so surprising, therefore, that the preservation function has long been part and parcel of the relevant copyright law. The question is—to whom and how, if at all, will this preservation function be addressed in our headlong dash to fully embrace the digital world?

The problem with the archival content preservation function is that it lacks a constituency.The author, the commercializing entity and the public at large each have a stake in protecting original works and their distribution. There may be differences of view between these stakeholders about how far to push and extend this right, but there is rough agreement about its fundamental contours. Add to that the grafting of Lockean notions of property, here, on to works protected by copyright, and we have a particularly longstanding and vibrant dialogue on the nature of copyright. The deposit of books was a by-product of this process (even pre-Statute of Anne) and, as noted, enjoyed statutory protection of sorts. To that extent, the preservation of contents was part and parcel of copyright law, even if it was not directly connected with individual creation and the enforcement of rights.

But who will address the challenge of content preservation in the face of the disappearance of the paradigm? There is much talk about net neutrality and equal access to the infrastructure backbone (even if the U.S. Court of Appeals for the District of Columbia has thrown a spanner into the legal works, here). But precious few seem to be addressing the preservation function within the framework of copyright laws in the digital age. Maybe content preservation is being removed from the copyright framework in favour of being subsumed within the dialogue over data protection; maybe it is simply not part of the current copyright discussion at all. In either case, from the vantage of this Kat, this is a pity. I would hate to think that Mrs Kat is purring up the wrong tree in her new archival career.
Will there continue to be a content preservation function for the copyright laws? Will there continue to be a content preservation function for the copyright laws? Reviewed by Neil Wilkof on Friday, January 17, 2014 Rating: 5


  1. I am pleased to be able to report that the nation's librarians have been addressing the issue of deposit of electronic publications.

    "From 6 April 2013, legal deposit covers e-books, e-journals and other types of electronic publication, plus other material that is made available to the public in the UK on handheld media such as CD-ROMs and microfilm, on the web (including websites) and by download from a website. However the Act and Regulations do not apply to intranets, emails, restricted personal data, cinema films and recorded music publications, although the Regulations do cover music, sound and video contained within other publications" - British Library website:

    A minor slap on the wrist for the IPKat (or at least his headline writer), who should have consulted the better half, who would almost certainly have advised him that legal deposit is governed by the Legal Deposit Libraries Act 2003 and not (any longer) by copyright law.

    The deposit of electronic material is particularly governed by the Legal Deposit Libraries (Non-Print Works) Regulations 2013 made under the 2003 act. A discussion of how the Regulations are to be implemented can be found at:

    Web pages are also being archived by the British Library.

    Before the implementation of the Regulations, there were voluntary deposit schemes.

  2. Additionally, although legal deposit was mandated by copyright acts, it has never been a requirement for copyright to exist in a work under UK law.

  3. Thank you to the two comments so far. I feel I should perhaps point out that the IPKat is not a UK-only blog, and that the poster of this item does not practise in the UK. It should not therefore be expected that it be written from the point of view of UK legislation.

  4. From a US perspective, the concept of "obligation of the copyright system to address the issue of the preservation of contents" is borne by the Library of Congress. In order to meet that goal, the aforementioned 'mandatory' submission of works (even in digital form) was proscribed.

    A rather sizable caveat exists though (and I am not completely certain as I can afford no citation), the actual submission of such a copy of work may violate the establishment of a copyright under international agreements - much like the former requirement of actually using the copyright symbol and year of copyright was considered merely a 'procedural' mechanism.

    Good luck to the Kat in the new venture!

  5. I recently retired as a practising archivist who specialised for most of his career in copyright and who has published several editions of a guide to copyright for archivists. I was therefore pleased to read an article on copyright that even refers to archives, but dismayed, as is all too usual, to see the IPKat confusing libraries and archives. They are quite different things. In elementary terms, a library tends to contain published works, an archive tends to contain unique unpublished works that have been accumulated as a by-product of the working of an organisation or individual. There are of course many unpublished works in libraries and published works in archives, but the fundamental difference is clear. Archives are therefore wholly unconcerned with legal deposit.

    Preservation of archival materials is a fundamental activity of archivists. In many countries, including the UK, preservation activities are supported by the copyright law, which permits the making of preservation copies. In the case of the UK, the relevant preservation exception is, all being well, to be amended so as to cover explicitly the needs of digital archival materials. Moreover, the Standing Committee on Copyright and Related Rights of WIPO is working on a possible treaty that would contain an article laying down minimum requirements for library and archival preservation exceptions to copyright.

  6. erratum

    "the actual submission of such a copy"

    should read

    "the requirement in order to obtain a right of the actual submission of such a copy"

  7. Congratulations to Mrs. Kat for (belatedly) taking up the best job in the world, that of being an archivist. Archivists acquire/accession, appraise, organize, preserve, and make accessible material of enduring value.

    I would disagree that copyright deposit in the US was driven by content preservation concerns. Much of the material that is sent to the copyright office is never added to the Library of Congress collections (thought that material that is added is preserved).

    As for digital books and journals, library-stipulated initiatives such as PORTICO and LOCKSS/CLOCKSS are seeking to ensure that digital content is preserved for the future. A bigger problem is material that is never purchased and over whose market libraries have little influence. One particular problem is music that only can be acquired via iTunes. Born-digital archives also present a preservation problem due to copyright, as Andrew Charlesworth has reported.


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