International Workshop on Database Preservasion
March 23, 2007 - National e-Science Centre, Edinburgh, Scotland, UK.
Legal Risks Awareness
on
Database Preservation
© 2007, Katerina Tsakona – IT/IP Law Attorney, FO.R.T.H. & Visiting Lecturer, University of CreteComputer Science Department, Greece ktsakona@admin.forth.gr & ktsakona@csd.uoc.gr
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Databases’ Preservation & Legal Risks
- Introduction to the Problematic -
-
Why Databases (DTBs)’ Preservation raises legal risks?
1.
In general, various methods of preservation(migration, curation, etc.) involve
to some extent:
„ copying,
„ modification,
„ re-creation,
„ changes in the ‘look and feel’, etc.
of (a) the entire DTB and/or
(b) of some of DTB constituents.
2.
In general, copying, modification, re-creation, changes in the ‘look and
feel’ constitute :
„ acts that can be (legally) permitted only by
„ Law (incl. copyright law, databases law, other) expressly, and/or
„ Right-holder of the protected object/work (the database, its
constituents) under question =>
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Databases’ Preservation & Legal Risks
- Introduction to the Problematic -
-Anyone interested in DTB Preservation & not being the right-owner,
before proceeding so, should pro-actively assess the following :
Preservation of the particular DTB/ DTB element/constituent = legal ?
«
«
= permitted by law ?
«
«
= permitted by (copy)right-owner
Unfortunately,
there is no ‘ready made’ type of ‘legal recipe’ to suit all types
of preservation activities ,
=> welcome to the area of legal complexities
☺
for DTBs Preservation
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Preservation & Data Privacy concerns
Preservation
methods
„
„
„
„
Migration
Emulation
Re-creation
Other?
Preservation effects & Data Privacy Law concerns
If access to & process of ‘personal’ data unavoidably has to
take place
=> permitted act, only if compliant with the ‘eight
principles of good practice’ Data Protection legal
framework
(See EU Directives 95/46/EC & 2002/58/EC)
„
„
If access to & process of ‘sensitive’ data unavoidably has
to take place
=> illegal act, unless exceptionally justified for one of
those purposes exclusively provided by Data Protection
laws
(See EU Directives 95/46/EC & 2002/58/EC)
If access to & process of ‘confidential’ data
unavoidably has to take place
=> permitted act, only if authorised by right-owner
of such data
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Preservation Activities & © law concerns
Preservation
methods
„
„
„
„
„
Migration
Emulation
Re-creation
Other?
„
„
„
„
Preservation effects & © concerns
If mere copying involved,
„ In another format,
„ In another computer language
=> permitted act to make copies (of the original for
personal ‘normal’ use, not commercial) by lawful users
If substantial changes in the ‘look and feel’
=> illegal act - violation of moral rights most likely
If re-creation of software to emulate obsolete hardware
=> new work/derivatives created – new license
required
If reverse engineering/decompilation of computer
program at stake,
=> permitted act, only if justified for interoperability,
research (non commercial) purposes
If circumvention of technological (copyright)
protection measures at stake
=> illegal act, unless justified as necessary for ‘fair
use’, however, ‘fair use’ doctrine becomes more weak
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Permitted acts of Preservation & © law concerns
Copyright law, in general, confers the right-owner of the protected work
with a set of exclusive rights :
„
Economic rights:
- right to copy the work
- right to issue back-up copies of the work
- right to make an adaptation, translation, modification of the work
- right to communicate to the public, lend, perform the work, etc.
and
„
Moral rights:
- right to prevent certain modifications in the ‘look and feel’ ,
etc.
=> Lawful user can proceed in certain of the prev. mentioned
permitted acts for purposes of preservation only if, authorised
by (a)(copyright) law and/or
(b) (copy) right-owner, subject to such license terms &
successive DRMs
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Databases & © facts (see Directive 96/9/EC)
„
Database = protected by
(a) copyright law (life+ 70 years) as a literary work
by reason of selection/arrangement of their contents = author’s own
intellectual creation
(b) sui generis right (15 years, almost perpetually),
by reason of substantial investment in obtaining, presenting, veryfying
contents
„
Database constituents (such as music, photos, software, data etc., if original),
may also be indepedently protected by copyright law, data protection,
confidentiality laws, etc.,
=>
Lawful user can proceed in certain of the prev. mentioned permitted acts
with respect to the entire DTB and/or the DTBs constituent, for purposes of
preservation only if, authorised by (a) Database (copyright) law and/or
(b) Database right-owner(s), subject to such license terms &
successive DRMs
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Databases & © facts
Database
the entire collection itself protected
by © and/or sui generis right
and
„
Databases elements literary/artistic
works of authorship, if ‘original’ =>
protected by ©, data protection,
confidential, etc.
„
=> Too many DBS right-owners to be
contacted to authorise permitted
preservation acts
=> May not succeed in DRM (digital
rights management) negotiations
(lengthy & complex, esp. if all
necessary permits are acquired, except
one…)
Music
©1
Photos
©2
Video
©3
Text
©4
Data
Personal/sensitive/confidential
Software
©5
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Databases’ Preservation & Legal Risks
Therefore :
⇒
DTB. Preservation activities ≠ de facto permitted
⇒
DTB. Preservation activities = permitted on a conditional basis :
- if permitted by database copyright law expressly
- but, not at present, at least at EU level by EC 96/9/EC,
- still, perhaps, in the future by Member States, if harmoniously complying with
2001/29/EC (restrict right-owners rights for the benefit of preservation,
archives)
and/or
- permitted by Database right-owner(s) through :
(a) appropriate licenses / collective licensing
(b)
“
assignment /assignation
(c) successful DRMs (…who shall take such
responsibility ?)
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Conclusions
At present,
-
there are no clear strategies across the EU for long term preservation
Contractual practices imposed by publishers with negative impact on access
and dissemination
(see COM (2007) 56 final, 14/2/2007)
-
there are no uniform or clear legal answers for all DBS Preservation
activities at European and international level
=> potentially may jeopardise the European Single market and its cultural
heritage initiatives, (e.g. the ‘i2010 digital libraries’)
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Suggestions
Be pro-active by means of
Outline the scope of your preservation interests & initiatives
Invest in your awareness of the applicable in your case legislation and
policy trends & initiatives (in order to comply and be pro-active)
Identify through adequate legal research present legal complexities that
potentially impede your preservation activities
Draft your own preferable compliant preservation model and such
(collective or not) licensing model to suit your needs and interests
Closely cooperate & communicate (lobbying) with regulatory bodies &
authorities, cultural institutions, deposit libraries, interested third
parties, consumers’ advocates, at national, EC, international policy and law
making level, by means of advocating your interests, rights, complaints
and your proposed licensing & regulatory framework, and to ensure a coordinated action at least at EC level
☺.
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Thank you !
…Any questions ?
if so please feel free to email me
at ktsakona@admin.forth.gr / ktsakona@csd.uoc.gr