Copyright and Preservation of Born-digital Materials: Persistent Challenges and Selected Strategies

Abstract

ABSTRACT This article surveys and analyzes archival literature and legal resources (primarily United States–focused) related to copyright considerations that archivists and other content managers must be aware of to effectively and legally maintain a collection of born-digital materials. These considerations include the centrality of copying to preservation actions, shifting definitions of ownership, unclear distinctions between published and unpublished content, digital rights management laws and technologies, and the layered copyrights that can exist in complex digital objects and their dependencies. Strategies for dealing with these challenges include securing rights ahead of time, adopting legal rationales related to orphan works and fair use, adapting practices from specialized digital preservation subfields, ensuring routine procedures adequately address copyright-related recordkeeping and risk management, and advocating for preservation-enabling copyright reforms. An examination of these issues and strategies in the context of current thinking about copyright suggests that while certain legal exceptions and existing rights frameworks can help to facilitate digital preservation activities, copyright will continue to be a barrier until significant reforms are enacted.