Websites consist of different parts that together form a whole. Each one of these parts can be protected by copyright. They might include original texts, photographs, search engines, design and data banks. These copyrights can also belong to different owners, such as a freelance photographer or journalist, a publisher, a software manufacturer, etc. Frequently, website elements are protected by other intellectual property rights besides the copyright, such as trademark right, neighbouring rights, portrait rights and the database right. In this way websites can constitute an accumulation of rights.
To decide how the KB might cope with this complicated material, the Centre for Law in the Information Society (Centrum voor Recht in de Informatiemaatschappij; eLaw@Leiden) at Leiden University has conducted a study of the legal aspects of web archiving in Dutch law, particularly the copyright and the Personal Data Protection Act. Crawling a website, for instance, is a form of copying, making it an activity that falls under the copyright; the owner’s permission is therefore required. In order to permanently preserve all the crawled copies of a website that were harvested at different moments, it is sometimes necessary to make several new copies in a variety of formats. This brings the copyright into the picture, although the Copyright Act makes an exception for migration copies made for the sake of preservation: a copy may be made of a work to ensure its accessibility if the technology that was used to make it accessible goes out of date. An important disadvantage, however, is that this exception does not apply to databases protected by the database right. It is quite likely that many entire websites functioning in this capacity would be disqualified, so that permission from the party holding the rights for the migration copies would still be necessary. Making material accessible is a form of publication, and whether it can be allowed without the permission of the party holding the rights to the website (or parts of the site) depends on the way it is done.
The copyright becomes a hindrance if large numbers of websites are to be archived, despite the various restrictions included in the Copyright Act. Partly due to the absence of a legal depot framework, a certain degree of prior permission is necessary from the party holding the rights to the website to be archived. Their copyright interests are balanced, however, by the greater public good that is served by web archiving: the preservation of our digital cultural heritage for the good of academic research and the wider public.
To prevent website archiving from getting bogged down in protracted administrative activity, the KB has decided on a more pragmatic way: the opt-out approach. This approach assumes implicit permission for web archiving unless the site holder has taken anti-harvesting measures, such as robots.txt. Website managers are sent a message indicating that, for reasons of national heritage, the KB is interested in harvesting the site in question, archiving it and making it accessible. The managers are also given a deadline for refusing permission. If a refusal is not forthcoming it is regarded as implicit or tacit permission.