Websites consist of different parts that together form a whole. These different parts may each be protected by their own copyright. This could include things such as original texts, photos, search software, design and databases. These copyrights may also belong to different rights holders, such as a freelance photographer or journalist, a publisher, a software manufacturer and so on. In addition to copyright, other intellectual property rights such as trademark rights, neighbouring rights, portrait rights and database rights often rest on various elements of a website. So there are many legal aspects involved in web archiving.
To determine how the KB can deal with this complex matter, Leiden University’s Centrum voor Recht in de Informatiemaatschappij/Centre for Law in the Information Society (eLaw @ Leiden) conducted research into the legal aspects of web archiving within Dutch law, with particular focus on copyright and the Personal Data Protection Act (WBP). For example, crawling a website is a form of copying and therefore an act covered by copyright, requiring permission from the owner. Creating multiple new copies in various formats is sometimes necessary to permanently preserve all crawler copies of a website harvested at various times. So copyright is back in play but the Copyright Act (Auteurswet) contains an exception for migration copies for conservation purposes. One may make a copy of a work to keep it accessible if the technology by which it can be made accessible becomes obsolete. A major drawback, however, is that this exception does not apply to databases protected by database right. Many websites as a whole probably qualify as such, so permission from rights holders for migration copies is still required. Making it accessible is a form of publication, and whether this is allowed without the permission of the rights holders of the website or parts thereof depends on how it is done.
Copyright is an obstacle if one wants to archive large numbers of websites. Due in part to the lack of a law requiring publishers to deposit their information with the national library, a certain degree of prior permission is required from the rights holders of the website to be archived. However, their copyright interest is offset by the major (general) interest that web archiving serves: the preservation of our digital cultural heritage for the benefit of scientific research and the general public.
To avoid the website archiving process from getting bogged down in lengthy administrative operations, the KB has adopted a more pragmatic approach known as the opt-out approach. This approach assumes implicit consent for web archiving. A notice will be sent to website administrators stating that the KB intends to harvest, archive and make public the site in question for heritage reasons. The notice includes a time limit within which consent can be refused. An absence of refusal will be regarded as implied or tacit consent.