Written evidence submitted by Ronan Deazley, Professor of Commercial Law, University of Glasgow, with Tim Padfield, copyright advisor and author

1. EXECUTIVE SUMMARY

1.1. We endorse the aspiration set out within Archives for the 21st Century (2009)1 that the archive sector within the UK should strive to increase the proportion of archival records that are available online.

1.2. We believe that proposals to reform the intellectual property regime should facilitate the policy aim by assisting cultural institutions to make their archival holdings available online within a simple, straightforward, and easily understood copyright framework. We do not believe that the copyright regime should present unnecessary barriers to making archival collections available online.

1.3. We do not believe it is sufficiently understood that library collections and archival collections are fundamentally different in nature. We believe these differences should be acknowledged and accommodated within the copyright regime.

1.4. We acknowledge that the cost of making archival collections available online typically outstrips the cost of making library collections available online. In particular, both the costs of initial digitisation as well as the costs of clearing rights (if they can be cleared at all with any certainty) are typically larger with respect to archival collections when compared to library collections.

1.5. We consider that the UK’s partial implementation of the EU Copyright Term directive creates particular problems for archival material, since it unnecessarily extends copyright protection for older unpublished literary material, of any date, until 2039. The application of the standard term would deal with millions of orphan works at a stroke.

1.6. We believe that the copyright regime should provide cultural institutions2 with a safe harbour when making their archival collections (but not published library collections) available online. In particular, we argue that this safe harbour should take the form of a limitation on liability rule.

1.7. The limitation on liability rule should provide that the remedy available against cultural institutions and their partners making archival materials available online for non-commercial purposes without the prior authorisation of a copyright owner should be limited to injunctive relief only. Damages or any other form of monetary relief should not be available.

1.8. The operation of this safe harbour provision should not apply if the cultural institution in question has received express notice from the copyright owner – either at the time of deposit or at anytime thereafter – to the effect that the material in question should not be made available online.

2. BACKGROUND

2.1. In 2009 the Labour government set out its strategic vision for the future of the publicly funded archive sector within England and Wales. Archives for the 21st Century recognised the vital role that archives play in linking people with their communities and their heritage, and in contributing to the development of robust local democracy, social policy, education, research, history and culture. At the same time, the general trend from paper to digital record-keeping, the growing technical complexity of record keeping, and the fragility of digital information all present archives with new challenges in preserving authentic information and records in perpetuity. This new digital environment has altered society’s expectations about access to and use of information generally, and archival holdings in particular: people now expect resources to be accessible online as and when it suits them. Two statistics in particular stand out: first, that in 2008-09 over 170 documents were downloaded over the internet for every one document that was requested in the reading rooms of The National Archives; and second, that images of less than one per cent of archival holdings across England and Wales were available online.3

2.2. One of the then government’s key recommendations was to encourage greater online access to digitized archival content: "It is essential that the archives sector is able to respond to this challenge and continues to increase the proportion of records that are accessible online".4 We unreservedly endorse that aspiration. However we do not believe that the recommendations for copyright reform set out within both the Gowers Review and the more recent Hargreaves Review of Intellectual Property are sufficient to enable archives and other cultural institutions to realise the vision set out within Archives for the 21st Century. Worse, we believe that the proposal in the current government’s response to the Hargreaves Review to "widen the exception for library archiving" 5 involves a fundamental misunderstanding of the differing needs and interests of the library and the archive sector within the digital environment. There should be differential treatment of archival collections and library collections under the copyright regime – at least in relation to making collections available online. This response sets out a new approach that would greatly enhance the ability of cultural institutions to provide online access to their archival collections within a simple, straightforward, and easily understood copyright framework.

We endorse the aspiration set out within Archives for the 21st Century (2009) that the archive sector within the UK should strive to increase the proportion of archival records that are available online. The copyright regime should not present unnecessary barriers to this.

3. UNDERSTANDING LIBRARY AND ARCHIVAL COLLECTIONS

3.1. When considering the differences between library and archival collections with respect to mass digitisation initiatives, we take as our starting point the report produced by Nick Poole for the Comité des Sages in November 2010. In it, Poole presents data on the entirety of the collections held in Europe’s libraries, museums, and archives, as well as the estimated costs of digitising these collections across these different sectors.6 The figures are revealing. Poole estimates that Europe’s libraries hold around 130m different titles of which approximately 77m titles eligible for digitisation have not yet been digitised.7 This in turn equates to around 1.93bn individual pages. The estimated cost of digitising this material is calculated as ranging between €0.22 and €0.68 per page.8 Taking the lowest estimate, this would mean that the approximate total cost of digitising all 77m titles would be €4.2bn; the upper estimate produces a figure of €13.1bn. The data concerning archives is limited to material held in national, local and provincial and university archives. It excludes audio visual,9 business, community, church and private archives.10 Nevertheless, Poole calculates that the total number of individual pages of archival material held within Europe comes to around 26.98bn. Of these 17.27bn are eligible for digitisation, of which approximately 10.45bn have not yet been digitised.11 Because of the complexity and fragility of the records held in archival collections, the full economic cost of digitising this material is estimated at €4 per page. And so, the approximate total cost of digitising all 10.45bn pages would be €41.8bn, considerably more than the costs that could be incurred in digitising Europe’s library collections.

3.2. The important thing to appreciate about these figures is that they only concern the estimated costs of initial digitisation. That is, they do not extend to the costs of the long-term preservation and management of these materials, nor do they include the costs of clearing rights for the material to be digitised.12 Staff time and effort will be needed to verify the copyright status of a work (including any related rights), trace the descent of title through the generations, locate and contact the rights owner(s), negotiate terms and conditions of use, and then to document all of this activity.13 And not only do these cumulative transaction costs typically outstrip the actual cost of digitising the material in question, but they present a much heavier burden upon public sector funding with respect to archival collections when compared with library collections.

3.3. First, in terms of the sheer volume of individual items, archives tend to have much larger collections than other cultural institutions, including libraries. In this respect, the statistical analysis carried out by JISC in 2009 indicates that while the average library holds between 100,000 and 500,000 works, the average archive holds between 500,000 and 1m records. Similarly, whereas 29% of libraries hold more than 1m works, the equivalent figure for the archive sector is 43%.14 The volume of orphan works that an institution holds within its collection will also increase the complexity and the cost of clearing rights.15 And, not surprisingly, a greater proportion of archival collections are made up of orphan works, when compared with library collections. For example, of the institutions that provided JISC with an estimate as to the number of orphan works within their collections, the average proportion reported by libraries was 5-10%, whereas for archives it was 21-30%.16

3.4. The fact that archival collections typically contain more orphan works than library collections should not surprise, given the profoundly different nature of archival and library collections. Libraries aggregate, organise, enable access to, and assist users in navigating the world’s accumulated knowledge. In this regard, library collections are primarily concerned with commercially published material. By contrast, archival collections are primarily concerned with the unique records produced by organisations, families, and individuals during their day-to-day activities or business.17 And while these records have extraordinary social, cultural, academic and historic worth, the nature of these records is such that they are rarely created for the purposes of commercial exploitation, and few have commercial value in themselves. Indeed, it is the organic nature of the records selected for inclusion within an archive that makes these records so reliable, authentic, and trustworthy.18

3.5. That archival records often have little or no intrinsic commercial value means that they also typically remain unpublished at the time of deposit with an archive. Indeed, archival collections are naturally prone to the so-called orphan works paradox: that is, the lower the commercial value of a work the less likely it is that the rights owner can be found, which in turn means that the least commercially valuable works generate the highest transaction costs in terms of searching for the owner when attempting to clear rights.19 Similarly, the cost of clearing rights for published material is typically lower than for unpublished material and other grey literature20 given that information about the rights owners of published work is often readily available from collecting societies and commercial publishers.21 By contrast, collecting societies rarely carry information about grey literature or unpublished works as a result of which, even when the works are not orphaned, clearing rights tends to be a more cumbersome and labour intensive process.22

3.6. To summarise, the estimated costs of initial digitisation are much larger for archival collections as opposed to library collections. So too is the cost of clearing rights given: (i) the volume of unique, individual items held within archival collections; (ii) the large proportion of orphan works held within archival collections; and, (iii) the fact that archival collections predominantly consist of unpublished material with very little intrinsic commercial value. For these reasons, we believe that there is a compelling case for treating archival collections differently from library collections under the copyright regime – at least with respect to cultural institutions making copyright-protected material online for non-commercial purposes.

Library collections and archival collections are fundamentally different in nature. These differences should be acknowledged and accommodated within the copyright regime. In particular, the cost of making archival collections available online typically outstrips the cost of making library collections available online. Moreover, both the costs of initial digitisation as well as the costs of clearing rights tend to be considerably larger for archival collections than for library collections.

4. SOLUTIONS: HARMONISATION OF THE TERM OF COPYRIGHT FOR UNPUBLISHED WORKS AND A LIMITATION ON LIABILITY RULE

4.1 The number of orphan archival works could be reduced substantially by the application of the harmonised copyright terms provided for by the EU’s term directive. The standard term of copyright is now the life of the author plus 70 years, but the UK has chosen to retain some earlier provisions for works that once enjoyed perpetual protection. Many of the unpublished works that are the defining feature of archival collections will continue to be protected until 2039. Is it right that unpublished works created in the 16th century should still be protected by copyright? Most such works are orphans, and the standard term would remove copyright from them with minimal impact on their unknown rights owners.

4.2 The implementation of a safe harbour for cultural institutions when making their archival collections available online would be straightforward: it should take the form of a limitation on liability rule. In particular, a statutory provision would provide that the remedies available against cultural institutions digitising and making work available online without the prior authorisation of a copyright owner should be limited to injunctive relief only. Damages or any other form of monetary relief would not be available. This safe harbour provision would be subject to two important exceptions:

(i) If at the time of deposit the copyright owner expressly provides that the material being deposited should not be made available online without their consent, then the safe harbour provision should not apply.

(ii) Second, if after deposit, the institution in question receives an express notice from the copyright owner that the material should not be made available online then the safe harbour provision should not apply. If the institution in question has already made the material available online then, upon receipt of such a notice from the rightsholder, they must take down the material within a reasonable period of time.

The express notice from the copyright owner after deposit should also contain a good faith statement on the part of the copyright owner as to how and why the institution making the archival material available online for non-commercial purposes is damaging the copyright owner’s interests.

4.3 The safe harbour should apply only to unpublished archival material, and so not to conventional published library material. It should apply only to archival material made available online for non-commercial purposes, and it should apply to the activities of partners of cultural institutions that are helping to make the material available.

4.4. These two proposals would remove many of the impenetrable barriers that are restricting the ability of cultural institutions to make archival materials available online. Readier access to the wealth of archival material preserved in cultural institutions aross the UK would encourage research and innovation, to the benefit to the economy and society. Moreover, the application of the standard copyright terms to archival material would have minimal impact on copyright owners while the safe harbour proposal would adequately safeguard copyright owners’ economic interests in what is a largely non-commercial body of copyright-protected materials. There is no economic downside to this initiative and it would help deal with the problem identified by Hargreaves and the Government that ‘valuable intangible assets are simply going to waste.’23 Finally, we should stress that the safe harbour would not extend to subsequent users of material made available online. Where copyright continues to apply, the economic interests of copyright owners would not be compromised in relation to any subsequent commercial use of their material: their prior authorisation would still be required.

The copyright regime should provide a safe harbour to enable cultural institutions to make their archival collections available online. This safe harbour should take the form of a limitation on liability rule. This safe harbour provision should only extend to making archival material available online for non-commercial purposes. The standard copyright terms should apply to archival materials.