Web archiving woes

"Coruscant Law allowed archival fair dealing, so the Jedi archives flourished..."

Read a very interesting article by Wired UK about web archiving. In my experience, one only need utter the word “archive” and audiences the world over will be immediately sent to sleep. Although by now half of my readership will be in the middle of a narcoleptic slumber, I shall plough on.

The state of archive law in the UK is quite clear. The Legal Deposit Libraries Act 2003 creates an obligation for publishers to deposit their works to the British Library and on request to the other designated deposit libraries. This obligation is not extended to all publications, for example, sound recordings and films are explicitly excluded. While the law is clearly geared towards printed publications, there is a bit of a grey area with regards to digital works. For example, s1(4) includes non-print works included as prescribed descriptions. s6 allows the Secretary of State to make the necessary provisions to include non-print works, specifically allowing electronic submission, and the provision of additional software necessary to access the work.

The law creates a very specific fair dealing right with regards to internet works. s10(5) reads:

“Where a work is published on the internet, subsection (6) applies to a copy of the work if—
(a) the work is of a description prescribed by regulations under this subsection,
(b) the publication of the work on the internet, or a person publishing it there, is connected with the United Kingdom in a manner so prescribed, and
(c) the copy was made by a deposit library or person acting on its behalf copying the work from the internet in accordance with any conditions so prescribed.”

This has been included in the Copyiright Designs and Patents Act as s44A, and therefore it must be understood that internet publications are covered as well. The problem of course is that this is very limited, and only a few libraries are included. The other problem of course is that there is little indication of what constitutes an internet publication for the purpose of the Act. Does this include every work connected with the UK? Blast, does it mean I have to start archiving my blog?

As the Wired UK article comments, the state of UK archiving law indicates that there are only a few institutions that have the right to archive under current fair dealing provisions, which means that any other project will require permission from the publisher for publication. Unfortunately, this means that sites like the Wayback Machine are not possible over here. Nonetheless, one big omission from the Wired article is that there is an assumption that only because something is possible under U.S. fair use, it should somehow be allowed under fair dealing. What I mean is that web archive institutions such as the Internet Archive might very well be infringing copyright in the UK, which could open them up for liability. This would therefore be a jurisdiction clash.

The obvious solution to the sorry state of UK archival law is to change the existing fair dealing provisions to include a more open-ended and better defined web archiving right. Why is it the Digital Economy Bill seems to completely ignore this? Why is it new legislation always has to emphasise the negative, instead of giving us some more positive aspects? Instead of enhanced fair dealing with regards to private copying and archives, we get all sorts of nightmarish provisions. The other obvious solution is to have more content under open licences. One of the great advantages of Creative Commons licences is that they permit all sorts of uses of the work that might otherwise necessitate contacting the author. In the case of digital archives, they can copy and store a work under CC licence with no problem whatsoever.

If you have made it this far, go and get a caffeinated beverage of your choice. You’ve earned it.

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