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Legal Considerations for the ‘Digital Archive’

This chapter covers digital records, mass digitisation, digital preservation, and format shifting.

Scenario: An archive wishes to expand its collection in a number of ways. For one, it wishes to digitise and make available on the Internet certain records that it already holds, including photographs, manuscripts and diagrams, among other collections. In doing so, the archive must grapple with different paradigms of the legal regimes already encountered in this guidebook. For example, the risk of unwarranted disclosure of personal information is much greater if the information is placed on the internet. Dealing with digital records also creates new legal contingencies under copyright law, given the ease with which digital records can be copied, and the centrality of ‘copying’ digital information to any act of archiving such records.

Archives are increasingly relying upon digital technologies and the internet to carry out the functions of preservation and access to their records and collections. Two particular activities of archives are especially relevant to digital technologies. One, archives might wish to digitise their ‘analog’ collections to facilitate preservation or promote access to particular records (the becoming-digital archive). And secondly, archives or specific archival collections might be composed of digital material from their inception (the born-digital archive). In either case, the function of digital copying and sharing transforms many of the legal rules and principles discussed in the prior chapters, and it is essential to keep in mind the interaction between digital technologies and the law relating to archival practice.

Reproduction is an elemental part of digital technologies. Every act of receiving and communicating information on a digital device or network involves the temporary or permanent creation of copies. These transient reproductions are, in general, considered ‘reproductions’ of works under copyright law. Moreover, the availability of records or copyrighted works as digital artefacts makes them substantially easier to reproduce than ‘analog’ records. This, inevitably, has substantially affected copyright law.

Existing laws and legal exemptions for preservation and other archival work were created with physical records in mind. However, digital records can pose substantially different concerns for preservation. In many cases, the fact that the law does not consider digital records creates some impractical situations. For example, as detailed in Chapter 2, while the law allows the creation of ‘three copies’ of a book for the purpose of preservation, limiting digital preservation to only three copies may not be sufficient for many purposes, taking into consideration the number of times digital information must be copied in the process of digitisation and preservation. The ‘three copy rule’ in digital contexts is therefore anomalous. Similarly, the archival preservation of large volumes of born-digital content (such as archives of social media or of websites), are substantially more challenging in an environment where copyright work requires individual clearance for separate ‘works’ created online. As such, it is necessary to revisit the copyright law applicable to archives in light of new digital technologies.1

In general, archives may digitise and use any records over which they have copyright ownership. In other cases, such as licenses or other scenarios in which there are restrictions over access and use, the archives should carefully consider the terms of the use of the record and whether digitisation and making the work available to the public is permitted by these terms.

Section 52(1)(b) and 52(1)(c) of the Copyright Act exempt the ‘transient and incidental’ reproduction of a digital work in certain scenarios. Section 52(1)(b) is applicable to the ‘technical process of transmitting a work’, and, for example, might apply to incidental copies that are created when a work is incidentally reproduced (for example, when opening a file).

Section 52(1)(c) exempts reproduction for the purpose of providing ‘links, access or integration’ to a work, when there is no reasonable ground to believe that the work being copied is infringing copyright. This exemption usually applies to services that allow for user-generated content on their platforms.

In either case, the reproduction should not create permanent copies and the creation of a copy should be incidental to the activity being performed.

Digital Rights Management (DRM) or Technological Protection Measures (TPM)​

Another important consideration for archives in the context of digital records, is the routine use of Digital Rights Management mechanisms to prevent the copying of certain kinds of digital records. Digital Rights Management (DRM) or Technological Protection Measures (TPM) are software that are part of digital records. They prevent the ‘unauthorised’ reproductions of such records. Section 65B of the Copyright Act makes it a criminal offence to circumvent such TPMs with the intention of infringing copyright. Archives that deal with such records (such as geographically-locked audio-visual content or digital documents in formats that cannot be copied), and seek to use circumvention measures to enable the preservation or archival use of such records, may be affected by this restriction. Archives could argue that the copying was in good faith, without intention to infringe copyright and was directly related to a particular exemption that allows reproduction of the record, which should be clearly documented in its preservation or access policies. However, the lack of specific exemptions for such preservation and access by archives leaves some ambiguity as to the scope of this restriction.

Online Privacy and Data Protection​

The easy sharing and retrievability of personal information in digital archives also challenges established concepts of data protection and privacy in archives. Prior to the digitisation of records, there were practical limits to the kinds of information that could be collected and shared about individuals. Digital data collection and sharing, radically transforms the ability of data to be collected from various sources and shared in different contexts. Most contemporary data protection law and regulation is made keeping in mind digital information, and the challenge it poses to concepts of confidentiality and privacy in records.

The lack of clarity within data protection laws can substantially impact the function of archives. For example, the requirement under the DPDP Bill, 2022, to obtain consent prior to the use of personal information does not specify its applicability to individuals who cannot be located, and is also not clear about the use of personal information after the death of an individual. Although the DPDP Bill allows a regulator to exempt certain provisions of regulatory compliance for ‘archival purposes’, the scope of this provision is unclear, and there is no clarity on how archives might avail of this conditional exemption if the law were to come into force. As such, it is important for archives and other memory institutions to seek greater clarity and assurance, including working with regulators on mechanisms to balance archival practice and the ends of data protection law.

In general, digital reproduction and sharing creates important opportunities for broadening public access to archival records, but also creates new contingencies and ambiguities in relation to the law. In general, archives should have in place mechanisms to respond to the greater risks posed to privacy and copyright in the course of digitisation. This can include implementing clear mechanisms for affected persons to send notice to the archive that some digital material infringes on their rights. These mechanisms should allow for the archive to identify and restrict access to such material where appropriate.

  1. Besek, J.M. et al. (2008). International Study on the Impact of Copyright Law on Digital Preservation. Retrieved from https://www.digitalpreservation.gov/documents/digital_preservation_final_report2008.pdf; Deazley R., and Stobo, V. (2013). Archives and Copyright: Risk and Reform.CREATE UK. Retrieved from https://www.create.ac.uk/publications/archives-and-copyright-risk-and-reform↩