How Recent Copyright Legislation and TPMs Prevent Digital Preservation — Part 3

Copyright Law, TPMs, and Appraisal

This is the third part in a series of three posts.

The Canadian Council of Archives (CCA) identifies five categories of appraisal criteria. Some of these criteria mix poorly with copyright law and TPMs on the issue of determining what can be acceptable for long term digital preservation.

Criterion 3.3, Intelligibility of information[1], asks whether the contents of a fonds can be read. This may have been conceived with physical fonds in mind but there’s no special requirement limiting it to the tangible. I think it applies equally to intangible, digital content. This criterion for readability exists because archival holdings must be of use to people such as historians, researchers, and increasingly the general public (LAC’s mandate made this explicit). Keeping something that cannot be used (is not intelligible), doesn’t support archival mandates.

A TPM-encumberance that restricts accessibility to people in general, likewise implies generally restricted readability, and is thus generally unintelligible. It only becomes intelligible by exception (when appropriate authorization is provided).

Archivists ought to eliminate for consideration, TPM-encumbered content because it fails criterion 3.3 on a general basis. This may appear extreme, especially if an archive gains the means and rights to unlock the TPM. But as I’ve discussed, those means surely won’t persist in the future and with the anti-circumvention law, no legitimate way exists to ensure such fonds’ ongoing accessibility nor intelligibility.

Such elimination results not because of some inadequacy in the content but because of the contingencies of the copyright law and the TPM’s prohibitive effect. Otherwise, nothing physically, technologically, or intellectually keeps an archivist from acquiring such fonds.

If archivists are not allowed to circumvent TPMs, then widespread use of TPMs among digital records puts archivists at the mercy of those controlling the TPMs. We’ve seen how past archivists—Hilary Jenkinson in particular—took an approach in which records creators essentially selected what would be destined for preservation, while archivists focused on things like creating finding aids.[2] Post-Jenkinson, archivists determine what is appropriate to acquire. In a sense, the combination of TPMs and anti-circumvention law brings professional archivists back to Jenkinson’s days. Only digital content that creators or donors have not encumbered with TPMs, will be appropriate for preservation.

In light of these appraisal criteria, it’s worth considering the ways digital content could get a TPM applied to it. I suggest that a TPM could be applied intentionally or passively by its creator or some intermediary.

In the intentional case, the creator would have been aware of applying the TPM and actively made the choice to do so. For example, a financial auditor might apply a TPM to prevent circulation of a report.

In the passive case, the author might not have had the explicit intention to apply a TPM. For example, suppose an official of the foreign service kept a digital record of her memoirs. After she dies, her husband decides that for confidentiality and safe-keeping, he’d store her memoirs using a proprietary application, which applied a form of TPM. Later, he decides to donate them to LAC with the application enabling their access. LAC’s capacity for preserving these memoirs (entailing back-up and migration) becomes subservient to the application and the vendor that developed it.

LAC (or any archive) would of course have to reflect on its acquisition policy and appraise the materials accordingly. The donation might be a good choice for preservation but the likelihood of becoming inaccessible (hence unintelligible) could make it not worth acquiring.

Conclusion

I’ve shown why archives must be capable of copying their digital holdings to enable long term digital preservation and access strategies. This capability underpins the functioning of TDRs and informs professional archival duties such as appraisal. Yet, disallowing the circumvention of TPMs prohibits archives from copying their digital holdings.

The law gives a nod to the impermanence of businesses and eventual obsolescence of technologies. Whether or not one agrees with the overall copy restrictions in the law, the law recognizes that archives (also libraries, museums, and similar institutions) have a unique position with duties that require a very permissive degree of rights to make copies. It permits archives to ensure the future availability of our cultural heritage by exempting them from some standard copyright rules, but that is not good enough. Bill C-11 persists with the exemption for copying but adds a restriction against the act of circumventing a TPM; an act which is necessary in order to perform the copying. C-11 confounds itself.

The commercial and technological environment that puts TPMs to use, makes present copyright law problematic in its application to long term digital preservation processes. With respect to digital content, archives like LAC have been barred from fulfilling their mandates to be a source of knowledge that anyone may access.

Part three in a series of three posts.


Notes

  1. Canadian Council of Archives “Guidelines for Appraisal Criteria for Non-Institutional Records” in Building a National Acquisition Strategy. Ottawa. Canadian Council of Archives, p. 59.
  2. Ridner, John. From Polders to Postmodernism: A Concise History of Archival Theory. Duluth, Minnesota: Litwin Books, LLC, p.147.

 

Click to see a list of references

References

An Act to amend the Copyright Act. Statutes of Canada. 2012, c 20.
Andre, Pamela Q.C., et al. “Preserving Digital Information Report of the Task Force on Archiving of Digital Information,” The Commission on Preservation and Access and The Research Libraries Group. (1996). http://www.oclc.org/research/activities/digpresstudy.html (30 October 2012).
Bak, Greg and Armstrong, Pam. “Points of convergence: seamless long-term access to digital publications and archival records at library and archives Canada,” Archival Science Volume 8, Issue 4, (2008) pp 279-293, http://link.springer.com/article/10.1007%2Fs10502-009-9091-4?LI=true (30 October 2012).
Beagrie, Neil, et al. “Trusted Digital Repositories: Attributes and Responsibilities,” Research Libraries Group. (2002). http://www.oclc.org/research/activities/trustedrep.html (30 October 2012).
Briefing: Demystifying Technical Protection Measures (TPMs) in the Library.” Association of Research Libraries (ARL). 25 January 2012. http://www.arl.org/pp/ppcopyright/codefairuse/demystifying-tpms.shtml (31 October 2012).
Canadian Council of Archives “Guidelines for Appraisal Criteria for Non-Institutional Records” in Building a National Acquisition Strategy. Ottawa. Canadian Council of Archives, p. 53-61.
Jantz, Ronald and Giarlo, Michael. “Digital Archiving and Preservation: Technologies and Processes for a Trusted Repository.” Journal of Archival Organization 4:1-2 2008: 193-213. http://dx.doi.org/10.1300/J201v04n01_10 (30 October 2012).
Library and Archives of Canada Act. Statutes of Canada. 2004, c 11.
Ridner, John. From Polders to Postmodernism: A Concise History of Archival Theory. Duluth, Minnesota: Litwin Books, LLC, p.143-161.

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