Australia's documentary heritage includes a wide variety of published and unpublished material protected by copyright. In order to preserve much of this material, it is often necessary to copy it. To avoid infringing copyright, one can comply with special conditions under the Copyright Act, copy only material which is in the public domain, or track down the copyright owner and seek permission or pay a fee. Each of these avenues is considered and problems noted. Some suggestions for reform are also made.
Australia's history and heritage is documented in an increasing number of disparate formats. These include published and unpublished works; handwritten, typewritten, and printed works on paper; documentary photographs and works of art on paper, bark and other media; musical scores on paper, and sound recordings on magnetic tapes and compact discs; moving pictures captured on film and videotape; scientific, educational, cultural and artistic works 'published' on the Internet; and more. Nationally significant collections of documents are held not only in national repositories, but also by State, regional, local and community organisations.
The extent of the 'distributed national collection' has yet to be determined, but it is clear that it is vast, growing and in many cases vulnerable. National strategies and coordinated action to preserve this rich and valuable collection are essential to surmount the obstacles of limited time, and of inadequate financial, human and training resources. Often the most viable strategy is to copy, or reformat, collections. It would be unfair to say that the Copyright Act, 1968 - http://austlii.law.uts.edu.au/au/legis/cth/consol_act/ca1968133/ does not recognise the need for preservation copying and reformatting, however it does so in a very limited way, providing further obstacles to preservation.
Ultimately, the aim of documentary preservation is to ensure continued public access to information, wherever possible through preventive action. Legal deposit legislation subsumed under section 201 of the Copyright Act 1968 does contribute to ensuring access and preservation of certain categories of published works in Australia. If the Act required printed materials, especially government publications, to be deposited on permanent paper complying with international standards, and if the Act extended to ever more prevalent electronic publications it would better serve the preservation needs of Australian documentary materials.
Other measures under the Act serve to limit access to published and unpublished materials through applying tests of fair dealing. The rationale is that by protecting authors' commercial interests, the author has a financial incentive to continue to write and to contribute to learning. While this logic is reasonable, it is difficult to envisage how this incentive can be effective for fifty years after an author's death. In this situation, there appears to be no particular concern for the preservation of learning, but rather a bald concern for commercial interests. It is also difficult to accept in many cases where authors create works under public funding.
There are a number of ways to avoid infringement of the Copyright Act when dealing with the preservation copying of older and 'new' technologies. They include:
With each of these options, however, there are serious difficulties for preservation management. Some of these are explored in this article.
The Copyright Act affords libraries special privileges to copy certain unpublished materials, to copy for preservation or replacement purposes, to reformat to microfilm, and in restricted instances to make backup copies of electronic material. Wodetzki has outlined in detail these privileges and their requisite conditions [1]. Most fall short of supporting best practice in preservation, which ideally is analogous to preventive medicine. Some require the documentary 'patient' to show significant damage or deterioration before preservation copying is permitted. What is preserved then is a surrogate of a damaged original, which will undoubtedly become more damaged through the copying process itself. In this paper, each of the special library privileges for collection maintenance will be reviewed and their shortcomings noted. Some recommendations for amendments to copyright laws will also be made.
Provisions for copying unpublished materials under the Copyright Act are not intended to address preservation needs of these materials, but rather the need for researchers, students and potential legitimate publishers to access old unpublished materials. Different copyright periods in the vicinity of fifty to one hundred years apply to unpublished works, sound recordings and films. For materials of this age, the making of a copy for access can represent a fortuitous preservation benefit, especially if the copy is made on a stable medium, for example on permanent paper. It would certainly be a boon if the Copyright Act were to specify stable media and preservation best practices where copying privileges are afforded. Where the Act falls short of best practice in preservation is that after these long periods of time (fifty to one hundred years), some materials may have deteriorated to the point that reformatting physically endangers the original and the resultant copy is of reduced quality. This is of particular concern for film and sound recordings. These materials would be better served under the copyright allowances for preservation.
A considerable proportion of the world's documentary heritage disappears through natural causes: many of the materials which are used in the creation of documents are inherently unstable. Acidified paper, common since the mid-nineteenth century, crumbles to dust; acidic inks eat through paper so that the words literally fall off the page; films fade and the magnetised particles which record information on magnetic tapes drop off. These are but a few examples and in all cases, the storage conditions and amount of use will affect the rate of deterioration. While all materials deteriorate, in examples like those cited, deterioration is noticeable well within fifty years after creation. By the time the deterioration is evident, the quality of the information has degenerated and may in parts be lost so that a copy is unlikely to be totally satisfactory.
In many cases of published and unpublished materials it is already too late to make useful preservation copies. Consider the example of a letterpress book, also commonly referred to as a pressletter book. These volumes were commonly used to record copies of correspondence prior to the advent of carbon paper, photostats and photocopiers. The volumes usually contained an index of lined writing paper and 500 or so pages of thin translucent paper, commonly termed onion paper.
The letter would be written on whatever writing paper was available, often using iron-gall ink. While the ink was wet, the letter would be inserted between two of the thin pages in the book and pressed. Some of the ink would transfer onto the back of the page, and because the paper was translucent, the copied image could be read through the paper.
With the combination of acidic iron-gall ink and thin acidic paper the writing often eats through the page and crumbles away. The pages become so fragile that attempts to turn the pages often cause them to shatter. If left until these show signs of deterioration, the act of copying them will often destroy the original material, or cause so much damage that it can never be used: it is too late to get a copy of reasonable quality. In addition, as deterioration advances, the cost of conservation and repair and the limits on what can be done increase.
It is preferable to copy the material before it deteriorates. The materials prone to accelerated deterioration are known, so they could be identified for copying on receipt. Effective preservation requires: the original (which will deteriorate even more rapidly if used) to be put away so that it lasts as long as possible; the production of a master copy to be preserved for posterity; and the production of working copies for day-to-day use.
In fact, the Copyright Act does allow a library or archives to make preservation copies of a limited range of original documentary materials: unpublished manuscripts, artistic works, first-generation sound recordings, first-generation films. These rare original cultural materials can be copied under two conditions. First a copy can be made, preferably on a stable medium, and stored in an appropriately controlled environment to provide insurance against the loss or deterioration of the original, that is for 'preservation' purposes. Second (as described above) a copy of these rare materials can be made for use specifically by researchers to reduce handling of the rare originals, that is for 'access' purposes. It appears that these research copies cannot be removed from the premises, but under fair dealing provisions researchers are able to further copy a proportion of the research copy for research or study purposes (see sections 51 - http://austlii.law.uts.edu.au/au/legis/cth/consol_acts/ca1968133/s51.html and 110A - http://austlii.law.uts.edu.au/au/legis/cth/consol_acts/ca1968133/s110a.html). What is not clear is whether it is permissible to make one copy for 'preservation' and one copy for 'access', or if a choice between these two needs must be made so that only one copy in total is produced. One 'preservation' copy is of no use if access is not improved. Indeed, preservation professionals in the library sector find it impossible to disassociate the concepts of preservation and access. The co-relationship between the two concepts is reflected in preservation microfilming best practice where at least three copies must be made (see below).
The restriction that legally produced access copies be used only on the premises of the owner of the original does not seem to pose many problems for preservation, but there are cases where problems may arise. Imagine, for example, that a small regional historical society donated a fragile and nationally significant documentary 'treasure' to its State Library. Some time later the society would like to display the item in an exhibition providing access to local heritage materials for the local community. The original is too fragile to travel, but a copy made for access cannot leave the premises of the State Library without violating the Copyright Act. In this case, it is difficult to imagine how the Act is protecting any public or private interests.
It appears that the Act allows any medium to be used for producing the preservation or access copies of materials in this category, that is original unpublished works, including preservation photocopying, digital capture and microfilming. Nevertheless, these provisions do not entirely meet the needs of preservation reformatting best practice. In the case of preservation microfilming, as forecast, it is considered standard practice to produce three generations of film: a first-generation preservation master that should never be handled except under the most extraordinary circumstances and that is ideally stored off site, a second-generation printing master from which access copies can be produced as they need replacing, and the third-generation service film for use by researchers. Hence, to achieve good preservation microfilming practice in dealing with the range of materials identified under the Act's preservation copying provisions, at least one illegal copy must be made. Obviously it is desirable that the Act be modified to remove this anomaly (there are further serious problems when it comes to microfilming published materials, and these are covered below). While there seems to be little scope for preservation best practices of this type to undermine any commercial interests, such practices greatly enhance prospects for learned research.
Copying for Replacement Purposes
Libraries and archives are permitted under the Copyright Act to produce replacement copies of published works and recordings in their collections that have been stolen or lost, or that are damaged or deteriorating. In the first case, if a replacement copy of a missing item cannot be purchased at an ordinary commercial price, a copy of the missing item may be borrowed from another depository to facilitate reproduction of a single replacement copy. In the latter case of damaged or deteriorating collection items that cannot be repurchased a replacement copy is also permitted under the Act, and it appears that there are no requirements for disposing of the damaged or deteriorating material once copied. As Wodetzki recently pointed out:
The fact that deteriorating material in published form can be copied to another format whilst at the same time retaining the original may provide some comfort to those involved with newspaper preservation projects. Rather than relying on the 'medium-shifting' provisions which require destruction of the original, it could be argued that after a number of years newspapers deteriorate and become brittle, thereby allowing a replacement copy to be made pursuant to section 51A(1)(b) - http://austlii.law.uts.edu.au/au/legis/cth/consol_acts/ca1968133/s51a.html. Under this approach, the original newspaper could be preserved as a 'museum piece' and the replacement copy could be made available to users of the library or archives. It would, of course, be necessary to make declarations that the newspapers copied were not commercially available, before making any such copies, but this is unlikely to be a problem for old newspapers [2].
While these provisions permitting the production of replacement copies of lost, stolen, damaged or deteriorating material are welcome under the Act, they again pose barriers for preservation best practice. There appears to be no restriction on the medium used to produce replacement copies, nor a clear restriction on the number of replacement copies that can be made, but given there are clear limitations in the Act restricting microform copies to one (see below), in the case of microfilming the Act is again at odds with preservation best practice. The question of how much damage or deterioration qualifies an out-of-print publication for replacement copying is also moot, and as stated previously, professional conservators naturally would find their professional integrity challenged if they advocated a 'wait until it's sick' approach to their documentary patients. Nevertheless, in the case of published materials, the Act is most accommodating when it comes to copying lost, stolen, deteriorating or damaged items.
Reformatting to Microfilm
Outside the provisions for copying for preservation (as conceived in the Act) or replacement purposes, it is permissible under the Copyright Act for an archives or a library to make a single microform copy of a 'work' held in its collection. This provision has almost no applicability since it requires the Draconian measure of destroying the original item no matter what its condition at the time of filming. As noted earlier, a single microfilm copy has almost no value as a preservation strategy, especially if the original has been destroyed. To reiterate, there are circumstances where copyright law needs to recognise the anathema that the unnecessary destruction of original materials represents for all repositories of Australia's cultural heritage. The National Plan for Australian Newspapers (NPLAN) is an initiative of the State Libraries which seeks to microfilm all Australian newspapers and to preserve original copies in their State of origin.
Ideally a newspaper is microfilmed within a year or so of issue and the original is stored under conditions that aim to minimise the rate of deterioration. Technically this contravenes current copyright regulations, which requires the original to be destroyed. In many cases the State Libraries are filming newspapers acquired under legal deposit legislation. Newspapers and other publications received under legal deposit cannot be disposed of. To avoid infringement of the Copyright Act, a second copy of the newspapers on the State Library's microfilming program would have to be acquired for filming and disposed of afterwards. In most cases this would involve payment, adding considerably to the cost to the taxpayer of these programs. To suggest that a preservation strategy such as NPLAN threatens the commercial interests of newspaper proprietors and journalists is ridiculous.
The problem seems to relate to the understanding of why the copy is being made. It is not to replace the original but to preserve the information content. In legal cases and in scholarly research, it is common to sight the original, even if a copy exists. Copies can be tampered with so they cannot be regarded as a true record.
The situation is immeasurably worse for published audiovisual material as it is not possible to make any copy prior to damage or deterioration, even if converting from an obsolete to a modern format [3].
Making Electronic Backup Copies
Modern formats including electronic and digital information and multimedia are particularly unstable. Unlike other formats, the major risk to electronic and magnetic media is not deterioration of the materials themselves. Rather, it is the pace of technological change and development that poses a risk. It has been said that within five years or less, 'hardware and software systems can change so radically as to render these recording objects totally unreadable because of physical and logistical incompatibilities' [4]. Five years might be optimistic. Unfortunately, despite the high risk of loss, there is no general right to back up material held in digital or electronic form. According to Wodetzki the only exceptions are the preservation provisions previously mentioned, which allow a copy to be made to preserve an item against loss or deterioration, and a limited amount of backup copying for computer programs [5]. In the latter case, any person who has purchased a legal copy of a computer program may make a copy to be used in the event that the original is lost, destroyed or rendered unusable. This seems to imply that unless the original is unusable, the backup copy is to be stored in a safe place and not to be used.
There are seemingly endless questions regarding copyright in a digital publishing environment, and they concern distribution, fair use, definition and preservation issues. Very careful consideration of these questions is required if any sensible strategy for protecting intellectual property and the national heritage are to be achieved. Getting bogged down in debates about whether a screen display constitutes a copy is as profitable as debating whether the opening of a book could give rise to an infringement of copyright laws.
It is heartening that the National Information Infrastructure (NII) Intellectual Property Working Group has advocated in its recently released White Paper that library exemptions in the US Copyright Act 1976 should specifically authorise the production of two archival digital copies and a service digital copy for the purpose of preservation. This appears to apply to copying of digital and non-digital originals.
The duration of copyright is usually for a fixed period which depends on the nature of the material, and often persists for several decades after the death of an author. Table 1 summarises the fixed periods for certain categories of material.
It should be noted that the periods vary according not only to the type of material, but also to events such as publication or the death of the author. Material which is old enough to have lost copyright can be freely copied without legal impediments, but there can be complications. Because the duration of protection is linked to the date of publication, it can happen that an unpublished work never really goes out of copyright: if the author of a work cannot be identified, then the date of death, on which copyright protection may depend, cannot be established [7].
Table 1. Duration of Copyright [6]
Section Subject matter Period
s33 Literary, dramatic, musical Life of the author plus
(2) or artistic works (other than 50 years
photographs)
s33 Literary, dramatic or musical 50 years after the first
(3) works which are unpublished, of these events to
have not been broadcast or occur; otherwise
performed in public and indefinite
records of which have not
been offered for sale to the
public at the time of the
author's death
s33 Engravings which are 50 years after first
(5) unpublished at the time of publication; otherwise
the author's death indefinite
s33 Photographs taken on or after 50 years after first
(6) 1 May 1969 publication; otherwise
indefinite
s212 Photographs taken before 1 50 years after
May 1969 expiration of calendar
year in which it was
taken
s93 Sound recordings made on or 50 years after first
after 1 May 1969 publication; indefinite
s220 if unpublished
(3) Sound recordings made before 50 years after making
1 May 1969
s94 Cinematograph films 50 years after first
publication; indefinite
if unpublished
s95 Television and sound 50 years after making of
broadcasts broadcast
s80 Works of joint authorship The same periods as
provided under s33,
except that references
in that section to the
author of a work are to
be read as references to
the author who died last
s34 Anonymous and pseudonymous 50 years after first
works publication
Intuitively it might appear that older documentary materials warrant a higher preservation priority by virtue of their age and perhaps rarity. However, there is a roughly inverse relation between the longevity of media and their recency [8]. Although there are serious concerns about the preservation needs of paper-based materials, the situation is potentially graver for those in magnetic and electronic formats. In other words, the works that require more immediate attention may be those that are least likely to have lost copyright. Given the Commonwealth Government's cultural policy of promoting multimedia to create Australian cultural products, the number of these works is burgeoning.
Determining whether copyright in a work has expired is not always straightforward. For example, a printed volume written by one author might contain photographs or illustrations by another author. Presumably the two authors will die at different times meaning that the textual and graphic components of a work might be protected for different periods. This becomes more complicated again for works with several or many contributors. Consider newspapers and magazines, where copyright in the works contained therein is divided between the author of the work and the proprietor/publisher of the serial. The proprietor owns copyright in cases where re-publication in newspapers, magazines or by broadcasting is sought. In all other cases the author or photographer owns copyright. Hence in the cases of copying for preservation, access, and replacement authors hold copyright. This is nothing short of a nightmare when it comes to reproducing newspapers and magazines in which material continues to be under authors' and photographers' copyright. There are serious implications for nationally coordinated efforts to preserve Australia's heritage as recorded in newspapers such as NPLAN. Quite aside from the need to determine the copyright status of the material is the likely impossibility of being able to contact all relevant copyright holders for all material contained in every issue of all Australian newspapers ever produced and being produced. Of course, one simply needs to wait until the original item begins to deteriorate and cannot be replaced through commercial channels to become exempt from this exercise! Ideally a revised Copyright Act will recognise the desirability of proactive preservation plans such as NPLAN and accommodate them accordingly.
Similarly, it could become an impossible tangle in the hypermedia environment of the World Wide Web http://www.w3.org/pub/WWW/ if hypertext-linked documents are defined as part of the source document and are protected by copyright. However, if fifty years are allowed to elapse after the death of hypermedia authors before something is done about preserving their work, there will be little to do. The work will no doubt already be lost forever - partly due to obsolescence of the hardware or software necessary to access the work, perhaps due to deterioration of the storage medium, or to a range of other unanticipated possibilities.
The inadequacies of the present Copyright Act regarding authors' rights and public access rights in an electronic environment, and with respect to the preservation needs of Australia's electronic cultural heritage are well recognised. As one of its terms of reference the Copyright Law Review Committee will consider the impact of technological developments on the ways works are created or used in new products. It is not clear, however, if it will consider the special preservation requirements engendered by new information transmission technologies, specifically the need to regularly 'refresh' electronic media to maintain compatibility with new technological developments.
The preservation of electronic works through regular refreshing can be viewed as serving authors' rights as well as public access rights. Few authors, whether publishing for profit or not, would be pleased for their electronically published works to become obsolete after a very few years. Yet this is inevitable if refreshing is left even until an author's death, let alone fifty years after it. In some cases, waiting five birthdays might be too long. We risk becoming what Paul Sturges has termed the 'amnesiac society' - a society that has lost the data that constitutes its memory [9].
It is often suggested that we can surmount all obstacles to preservation copying of copyright material by seeking permission to copy the endangered materials. Wherever possible this is done. As stated in previous sections, however, the task is not always straightforward, especially in the case of multiple contributors to a particular item, such as a newspaper. Copyright holders may be so numerous that even the best-resourced institutions will abandon the task as an overwhelming one. Copyright holders can be difficult to identify and difficult to locate. One author might not grant permission, while all others do, and so on.
In the interests of preservation, exemptions in the case of multiple contributors to newspapers and magazines would favour preservation of our journalistic heritage. In the case of identifying and locating authors, the Act would be more 'preservation friendly' if it permitted preservation copying where it can be demonstrated that sufficient but unsuccessful attempts had been made to identify and locate copyright holders for the purpose of seeking their permission to make preservation copies of their work. In fact it would be even more straightforward for the Act to recognise that preservation of Australian cultural heritage material is desirable and to exempt all preservation copying done in accordance with preservation best practice (endorsed by preservation and conservation professional bodies) and for which there is no demonstrable financial gain to the copying institution.
The resources available for preservation activity in Australia are already seriously constrained. In the face of an accelerating need for preservation activity there is unlikely to be any scope for institutions to be able to pay for copyright privileges to make preservation copies. It is subversive to suggest that the creators and publishers of Australia's documentary heritage should contribute to the costs of preservation rather than extract payment for it?
The present Copyright Act can accommodate limited preservation activities, but is far from conducive to best practices. A new Act should reflect the fact that preservation of cultural heritage material is in the best public interest, and that preservation best practice serves this public interest. It should then be a simple matter for relevant institutions to adopt the best possible strategies and media to make such bona fide copies as are required to guarantee preservation and access for the foreseeable future.
Jamie Wodetzki, 'Copyright: Decaying Law for Decayed Documents.' Preservation Microfilming: Does it Have a Future?, ed by Katy Bellingham, Leora Kirwan and Susan Shortridge (Canberra: National Library of Australia, 1995), pp 137-148.