Legal Implications of Digital Heritagization

Abstract

Due to the development of information and communication technologies as well as the influence of the Internet, life and work of the contemporary society take increasingly place in virtual form and the approach towards knowledge and heritage fundamentally altered. The remarkable sign of this continuous process is the emergence of Digital Heritage, understood as the accumulation of computer-based, valuable materials, which constitutes a digital reflection of societal developments. Different “heritage institutions” from the public sector, such as archives, libraries, museums, but also private undertakings became involved in the related process of Digital Heritagization encompassing cultural, scientific and administrative resources. The objective aimed for is the preservation of the named resources in order to enable future generations to access the collective memory of our society by means of electronic records. Since the digitization of analogue resources and the utilization of born-digital content presupposes inter alia the reproduction and duplication of the content in question, the field of intellectual property law gains particular interest. Thereby, the discussion on the national and international level is characterized by the heterogeneous and partly restrictive legal framework. The contribution takes this new environment as opportunity to approach the legal framework of civil law as well as common law jurisdictions related to digital heritage from a copyright law perspective, with particular reference to the legal exemptions and fair dealings doctrine. In order to emphasize the high practical impact of the issue at stake, recent judgments of the ECJ, the Swiss Federal Tribunal and the S.D.N.Y. (Google Books Case) assessing the admissibility of the digitalization and related aspects are considered and critically evaluated. On that basis, the future need of legislative measures in order to balance personal proprietary rights and public interests is discussed.