Legal issues

Websites consist of many different elements. Each one of these elements can be protected by copyright law. They may include original texts, photographs, search engines, design and data banks - which may all have different copyright owners, such as a freelance photographer or journalist, a publisher, a software manufacturer, etc. Quite frequently, website elements are also protected by other intellectual property rights, such as trademark rights, neighbouring rights, portrait rights and database rights.

In order to help the KB develop a strategy to handle these issues, the Centre for Law in the Information Society (Centrum voor Recht in de Informatiemaatschappij; eLaw@Leiden) at Leiden University conducted a study of the legal issues involved in 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 act; 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. These new copies also fall within the Copyright Act, although the Act does make 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 becomes obsolete. Unfortunately, this exception does not apply to databases protected by database rights. As it is quite likely that many websites may be regarded as databases by the law, permission from the rights holder is once again required for migration copies. Providing access to the data is a form of publication, and whether or not the permission of the rights holder is required, depends on the way access is provided.

Copyright becomes a hindrance if large numbers of websites are to be archived. The Netherlands do not have a law for legal deposit, and therefore some form of consent is required from the rights holders. These rights should, however, be balanced against the greater public good of preserving our digital cultural heritage for academic research and the public as a whole.

In order to prevent the KB's web archiving endeavours from getting bogged down by protracted bureaucratic hassles, the KB has adopted a pragmatic way to handle the copyright issues: the opt-out approach.This approach assumes implicit permission for web archiving. Website managers are notified of the KB's intention to harvest the site and granted the opportunity to make objections. If such objections are not made within a specific time span, the KB assumes implicit or tacit permission.

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