Archives & Preservation
Author: Ronan Deazley
Illustration: Davide Bonazzi
Archives are memory institutions. They hold unique documents and records that are vital for helping people connect with and understand their identities, their communities and their cultural heritage. They are also sources of authoritative and trustworthy information about decisions taken by government and other public bodies.
Archivists have a public mission to preserve these records in ways that ensure their authenticity, reliability and integrity. They are also committed to making these records accessible to everyone, while at the same time respecting the rights of individuals, creators, owners and users.
The copyright regime assists the work of archivists in these two basic activities: in preserving unique records and in making those records accessible to users.
Archivists have a responsibility to preserve the unique records and documents held within their archives in the public interest.
Making copies of a document is often necessary to preserve that work for the future, and especially when dealing with digital works created in formats, or stored on media, that are in danger of becoming obsolete. There is an exception in copyright law that allows archivists to make copies of any type of work for preservation purposes.
Importantly, this exception cannot be overridden by contract. This means that any term of a contract seeking to prevent or restrict preservation copying under this exception is unenforceable in law.
However, an archivist is only allowed to make a preservation copy of a work if:
1) The work is held in the permanent collection of the archive
2) It is not reasonably practicable to purchase another copy of the work
The criteria needed for making a preservation copy are explained in more detail below:
1. The work is held in the permanent collection of the archive
The law requires that the work to be copied for preservation purposes must be an item in the permanent collection maintained by the archive.
The term ‘permanent collection’ is not defined in the legislation, but it should probably be understood to include material held by an archive on indefinite or permanent deposit. The exception will not apply to material held by an archive on a temporary basis, for example, as part of a short-term exhibition.
2. It is not reasonably practicable to purchase another copy of the work
In practice, this is a relatively easy criterion for archivists to satisfy. Unlike library collections, which are largely made up of commercially published material, archive collections predominantly consist of unique documents and records produced by government, organisations, families and individuals during their day-to-day activity or business. These documents are rarely created for the purpose of commercial exploitation, often have little or no intrinsic commercial value, and often remain unpublished. The likelihood of being able to purchase another copy of these unique records will be very limited.
Making single copies of unpublished works
While the preservation of our shared cultural and political heritage is an important goal in itself, preserving these unique records without making them accessible to users would seriously limit the value of archive collections. Archivists want to make these records available and accessible to everyone.
There is an exception in copyright law that lets archivists make single copies of unpublished works held in their collection for users. Importantly, there is no restriction on the amount of the work that can be copied for a user under this exception. This means that an archivist can make a copy of the complete work if that is what the user requests.
When this exception was first introduced, archives were required by law to charge the user a specified sum of money for making the copy. Now, however, an archive can choose to charge a fee (or not) at its own discretion. This is an important development. Enabling meaningful access to our shared cultural heritage should not necessarily depend on the ability of the user to pay.
However, an archivist is only allowed to make a copy of an unpublished work for a user if:
1) The copy is supplied in response to a written request containing specific information
2) The work was not published or communicated to the public before it was deposited with the archive
3) The owner has not prohibited making copies of the work
The criteria needed for making a single copy of an unpublished work are explained in more detail below:
1. A written request containing specific information
The law is clear that an archivist can only make a copy in response to a request from a user.
The request has to be in writing, although this includes requests in digital form, for example, by email. The request must, however, contain the following information: details of the material required; the name of the user requesting the material; a statement that the user has not previously been supplied with a copy of that material; and a statement that they require the copy for the purpose of private study or non-commercial research. The user must also agree that they will not supply the copy provided under the exception to any other person.
2. The work was not published or communicated to the public before deposit in the archive
Because of the nature of archive collections, this criterion rarely poses a problem. As noted above, archive collections predominantly consist of unique documents and records that were rarely created for the purpose of commercial exploitation and, as such, they typically remain unpublished at the time of deposit with an archive.
It is worth noting, however, that this criterion only concerns whether work had been published or communicated to the public at the time of deposit. This means that even if a work is published or communicated after deposit with an archive, the exception still applies.
3. The owner has not prohibited making copies of the work
As well as holding records of government and other public bodies, archives often take collections of unique records and documents from individual people, families, businesses and other private organisations. And while archivists want to make those records available and accessible to everyone, they are always careful to make sure they do so while respecting the rights and interests of the creators and owners of those records. If an owner deposits material and asks that the archive does not make copies for users, the archive will always respect that request.
The law on copying works for preservation purposes in the United Kingdom is found in Section 42 of the Copyright Designs and Patents Acts 1988, which you can read here:
The law on making copies of unpublished works for users is found in Section 43 of the Copyright Designs and Patents Acts 1988, which you can read here:
The changes to sections 42 and 43 made by the Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 are available here:
To get a better understanding of the importance of archives, and the work of archivists, you can read the Universal Declaration on Archives which is available here:
Public Domain: Duration
This commentary explains how long copyright lasts and what you need to consider when calculating the copyright term of different types of works.
This guide is aimed at the wide range of staff working in libraries and information services. Copyright exceptions apply equally to all staff working in libraries including library or information assistants.
A work – such as a book, a piece of music, a painting or a film – in which copyright exists, but where the copyright owner is either unknown or cannot be located is referred to as an ‘orphan work’.