Author:

Keywords:

digital archiving, copyright, comparative law, digital rights management, 1801 Law

Abstract:

Existing precedent and commentator opinion reiterates that the purpose of copyright law is not to benefit authors or owners but to benefit the public. The limited monopoly right of copyright granted to authors or owners is a predicate to achieve that goal. The limited monopoly is a necessary and prerequisite incentive. Preservation of and access to the body of knowledge created through the limited monopoly incentive is the ultimate goal of the copyright system. Archives by nature and design play a critical role in the collation and preservation of the creative societal record; its cultural heritage. Applying present copyright law principles to digital collation and preservation processes often thwarts rather than forwards these efforts. Exceptions provided by the copyright law go may alleviate the problem, but do not solve it. Furthermore, the recent adoption of legislative protection for copyright management information and technical measures controlling access to and in some instances use of protected works exacerbates rather than ameliorates the problem. In the digital age, the copyright law becomes an inadequate tool for the preservation of the cultural record or access to that record. Present copyright exceptions may no longer be of any consequence. In the current article two approaches of copyright towards digital archiving and dissemination are examined and compared, namely that of U.S. law and of Belgian law, the latter being an example of implementation of the recent EU directives harmonizing copyright law. The authors demonstrate that copyright systems originating in the same basic policy proposition may result in different outcomes. Recent and pending changes in both U.S. and EU systems offer opportunity for policy-makers to enrich their own processes by understanding the success as well as shortcomings of these comparative outcomes.