While the urgency of preserving access to digital information has raised general awareness, legislation is falling behind on providing an appropriate framework. Most countries have not yet adapted their national legislation to include the digital domain in their Copyright law.
The rights of an author over his or her work have to be respected at any time. To clarify this lawfully, it must be discerned between the ownership of a document, and the intellectual property rights of a work. The former refers to the physical object, e.g. the book, whereas the latter concerns its content. The owner of a resource is not automatically allowed to further distribute and republish it. On the other hand, the holder of the intellectual property rights has no control over the physical instance of his work owned by another person. Thus, specifically, an author can not demand the destruction of a book owned by a third person.
When a work is handed to an archive to ensure its long-term preservation, the author loses some control over the document since it, in a way, leaves his or her sphere of influence. Basically, two points have to be clarified between the management of the archive and the holder of the intellectual property rights.
Firstly, they have to agree to whom the document is made available. This is, obviously, more important in the digital, making the identical reproduction of documents possible unlike in print media. However, the copyright owner has the exclusive right to publish the work. For a somewhat finer layering, users could be assigned rights such that specific people are allowed to view and maybe even to print a document, whereas others are not (cf. Section 2.8.4).
As the second important point, the author has to accept the method applied to ensure the long-term preservation of the digital object and what this entails for the work. A Conversion-strategy, for example, involves transferring the document into different formats, thereby corrupting its genuine form.
Recently, the World Intellectual Property Organization (WIPO)7 announced the adaption of the WIPO Copyright Treaty, bringing it in line with the digital age. With this revision the key treaty "opens new horizons for composers, artists, writers and others to use the Internet with confidence to create, distribute and control the use of their works within the digital environment." [WIP01] This ground-breaking settlement will enter into force on March 6th, 2002, with more than 30 countries participating.
Aside intellectual property rights, legal deposit laws must be adapted, which is underlined by the Directors of National Libraries [CDN96]. After all, it is one of the main responsibilities of national libraries to preserve comprehensive collections of the outputs of their nations for future generations. With more and more publications being "born digital", their scope has to be extended. It is a very urgent step to take taking into consideration that valuable cultural heritage vanishes rapidly.
Basically, the legal deposit of electronic publications can be divided in two main areas:
Deposit procedures for physical carriers containing the data to be preserved is essentially quite similar to those for print material. Similarly, digital documents that are actively deposited by the owners of the Copyright at the national legal deposit institution. In both cases ownership of the work is given to the institution and it can be negotiated how the (digital) object is further handled concerning access rights and the permission to apply a specific preservation strategy as discussed previously.
The case is different for on-line publications, since the owner is not necessarily contacted or known in the first place. Generally, it is considered no infringement of a Copyright, if publicly available material is collected and archived. However, it has become practice not to allow access to the material in the archive before it is several month old. Furthermore, when acquiring the data from open-access sources any indication not to collect the documents should be respected. Such an instruction can be given in the form of so-called "robot exclusion files". As it is done for off-line publications, access to certain collection items could be restricted. How limited the permissions are, however, should be defined by legislation. Also, it should be regulated whether the owner of the Copyright is offered the possibility to remove his or her work from the archive. After all, it could turn out to be not clear, who the actual holder of the intellectual property rights is.
A further problematic issue is raised when on-line material is collected. Pornographic material, hate literature, and otherwise offensive material are publicly available in the Internet. Much of this is, in fact, prohibited by national legislations. Yet, this issue is worth considering, after all these materials are part of society. Objectionable they may be, still, they are part of the multi-faceted cultural identity of a nation and, hence, should be preserved.
At this point of time, several countries have extended legal deposit regulations to off-line electronic publications. Among them are Canada, Denmark, Finland, France, Germany, Italy, Japan, Norway, and Austria. As far as on-line works are concerned, however, only few countries such as the Netherlands and Finland have included those in their legislation [CST01].
Another legal issue concerns the application of digital preservation strategies, which might involve infringing the Copyright law or demand the lawful control over proprietary technology. For instance, the method of Technology Preservation could require the interference with the original system environment for maintenance reasons. It could even be necessary to rebuild certain parts of the equipment to retain a running system. Even though Emulation preserves the authenticity of the collection item, it affects Copyright since the saving of proprietary software, hardware specifications, and documentation is required.
These topics, ranging from the adaption of the Copyright, the extension of legal deposit laws, to providing an appropriate legislative framework for the long-term preservation of digital documents - all those topics become increasingly prevalent at an international scale, as the UNESCO General Conference encourages member states "to eventually adapt national legislations and regulations for national deposit so as to ensure the preservation of and the permanent access to digitally produced materials." [UNE01]