1. http://creativecommons.org/licenses/by-nc-nd/3.0/nl/deed.en WIPO Conference Madrid 30 October 2009 Preservation of web-based materials: the experience of the Netherlands Annemarie Beunen Copyright lawyer National Library of the Netherlands annemarie.beunen@kb.nl

2. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Web archiving: outline of presentation Web sites as cultural heritage Legal issues: Legal deposit legislation Copyright Personal data & privacy Portrait rights, defamation, penal liability Web archive of the National Library of the Netherlands Some suggestions for WIPO

3. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation UNESCO Charter on the Preservation of the Digital Heritage (2003) : Digital Heritage = resources of information and cultural expressions that have been produced, distributed, made accessible and maintained in digital form. Digital heritage is at risk of being lost and its preservation for the benefit of the present and future generations is an urgent issue of worldwide concern. Websites are digital heritage, worthy of preservation. Why? Unique information that can only be found on the internet & which constantly changes as sites are updated. E.g. websites created for special events (elections, murder of Theo van Gogh, etc.). Reactions of the public are very interesting for history researchers!

4. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation UNESCO Charter on the Preservation of the Digital Heritage Article 2: The purpose of preserving the digital heritage is to ensure that it remains accessible to the public. Accordingly, access to digital heritage materials, especially those in the public domain, should be free of unreasonable restrictions. At the same time, sensitive and personal information should be protected from any form of intrusion. Member States may wish to cooperate with relevant organizations and institutions in encouraging a legal and practical environment which will maximize accessibility of the digital heritage. A fair balance between the legitimate rights of creators and other rights holders and the interests of the public to access digital heritage materials should be reaffirmed and promoted, in accordance with international norms and agreements. Art. 2 expresses the need for a fair balance between: 1. the public concern for preserving the digital heritage 2. legal concerns

5. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Legal issues 1.Legal Deposit Legislation amended acts permit website harvesting & restricted access, EU initiatives. 2.Intellectual property rights, especially copyright: all original works enjoy ©, incl many (parts of) websites. 3.Personal data protection & privacy issues 4.Portrait rights, defamation & penal liability & the web archive of the National Library of the Netherlands

6. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation 1. Legal Deposit Legislation Legal Deposit Acts in many countries: national publishers must deposit a copy of all their publications at Nat Library. Amended to include websites in FR, Germany, Denmark, Norway, Canada, Nw Zealand, UK (still underway), Spain? These Acts mostly permit: collecting the national domain harvesting (= downloading of sites) without owners permission sometimes: circumventing technological protection measures offering restricted access (not free online access) Unesco Guidelines for Legal Deposit Legislation (2000): advise to include dynamic online publications registered users should have (limited) access amend copyright legislation to permit harvesting for legal deposit.

7. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation

8. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation European Commission initiatives Recommendation on the digitization & online accessibility of cultural material and digital preservation, 24/08/2006, rec. 14: Web harvesting is a new technique for collecting material from the Internet for preservation purposes. It involves mandated institutions actively collecting material instead of waiting for it to be deposited, thus minimising the administrative burden on producers of digital material, and national legislation should therefore make provision for it. http://ec.europa.eu/information_society/activities/digital_libraries/cultural/comm_recom m/index_en.htm http://ec.europa.eu/information_society/activities/digital_libraries/cultural/comm_recom m/index_en.htm Commission Communication: Europes cultural heritage at the click of a mouse, 11/08/2008: About half of the Member States have implemented legislation that allows web harvesting by selected cultural institutions. http://ec.europa.eu/information_society/activities/digital_libraries/doc/communications/ progress/communication_en.pdf http://ec.europa.eu/information_society/activities/digital_libraries/doc/communications/ progress/communication_en.pdf

9. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Web archiving: the Netherlands & its National Library No Legal Deposit Act, nor web harvesting legislation. (Nevertheless, for paper publications our coverage is nearly 100% on the basis of voluntary deposit agreements with Dutch publishers). Thus, under the Copyright Act: we require permission for harvesting & offering access from website owners & copyright holders of all works on a website (opt in). Exceptions: websites made by governmental authorities websites made public as belonging to the public domain or under a Creative Commons licence. Alternative view: if no technical protection such as robots.txt is applied, website owners agree to archiving. This opt out- approach does not conform to copyright law.

10. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation 2. National Library of the Netherlands & copyright Middle way: we ask broad permission via e-mail for harvesting, long term preservation & online access, giving a reaction term of 14 days. No reaction: implicit licence. If objections arise later, we stop harvesting and disable online access to all the websites versions. We do not harvest websites protected by robots.txt, only after explicit permission. Our experience: most site owners give explicit, enthusiastic permission: of about 1700 websites, only 10 said no. Some reasons for objection: site owner could not give permission for third parties who have copyright in parts of the website. he had to remove (e.g. inaccurate) texts, e.g. after legal claims.

11. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation 3. Personal data protection & privacy issues The European Data Protection Directive (1995) protects the right to privacy. Websites may hold personal data, the use of which also in a web archive must comply with the Data Protection Act. Personal data= any information relating to an identified or identifiable natural person, such as phone numbers, (e-mail) addresses, photos etc. In principle prohibited = processing data on race, ethnic origin, political opinions, religious beliefs, trade-union membership, sex life or health. Compare European Court of Justice, 6 Nov 2003 (Bodil Lindqvist).

12. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Data Protection Directive: safeguard criteria Legitimate purpose: Processing personal data is permitted if necessary for the purposes of the legitimate interests pursued by the library, except where such interests are overridden by the interests for fundamental rights and freedoms of the person involved. Requires balancing the interests of library and person involved. Proportionality: Anonymise personal data if possible. Free online or restricted access (e.g. only onsite in library building, or closed network for registered users). Web archive indexed or not by search engines like Google: searches by personal names without having to visit the librarys site not proportional?

13. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Data Protection Directive Exceptions for historical and journalistic purposes: Data may be stored longer for historical, statistical or scientific use. Processing=permitted for journalistic purposes or artistic or literary expression provided that the right to freedom of expression prevails over the right to privacy. Dutch Data Protection Authority: permitted also for libraries that digital- ly archive e.g. newspapers, if done proportionally (e.g. restricted access). Dutch Press Council 2007: author asked to remove his article from an online newspaper archive for he did not support the content anymore. Council favoured the public interest of reliable, unchangeable archives. Rights of the person involved: Right to access all personal data processed about him/her, Right to demand rectification of incomplete/inaccurate data Right to ask for deletion of personal data. So: library must deal with complaints & assess their validity.

14. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Portrait rights A person recognizably depicted (drawing, photo, painting or film) can oppose to his/her portrait being made public. But he/she must have a reasonable interest to do so: requires a weighing of interests. Defamation Content which damages someones honour/reputation (libel/slander) may be wrongful. Penal liability Websites with discriminating content, child pornography etc. May cause problems for harvest of national domain.

15. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Our web archive: a selection of Dutch websites 2.000 websites which fall within our collection policy: sites of Dutch governmental institutions, scientific institutions, cultural heritage institutions, historical societies. Selected websites are considered to be of long term research value. This selection may be extended, but we are careful with legally sensitive websites, e.g. of extremist political parties. It is not our ambition in the near future to archive the whole.nl domain. Our web archive is not yet online.

16. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation

17. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Legal issues to be expected after going online Copyright issues: Claims of third parties who oppose free online access however, impossible to ask everyones permission, and problem of orphan works. Whether or not to oppose substantial copying from our web archive on the basis of our database right. Privacy complaints concerning personal data. Possible liability based on portrait rights, defamation, penal law (remedy: careful selection of websites). Notice & Take Down procedure like the web archives of the Library of Congress and the UK National Archives.

18. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation UK National Archives web archive: http://www.nationalarchives.gov.uk/legal/takedown-policy.htm http://www.nationalarchives.gov.uk/legal/takedown-policy.htm Material will be taken down temporarily on receipt of a request from a member of the public or a government department. The case will then be considered by a Panel composed of members of staff who provide relevant expertise. The Panel will approve continued withdrawal of the material only if one of the following criteria is met: (…) The material is personal information about someone who is still alive and continued on-line access would be unlawful or unfair to him under the Data Protection Act 1998 or would breach his or his familys right to a private and family life under the Human Rights Act 1998. Making the material available online is an infringement of copyright. The material is defamatory or obscene. Compare the European E-Commerce Directive: limited liability for hosting Internet Service Providers who follow Notice &Take Down (take direct action after a valid complaint).

19. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation A possible role for WIPO? Acknowledgement of the importance of preserving web sites for the future (compare UNESCO Charter). Harmonisation of copyright legislation and legal deposit legislation on digital publications and websites, enabling to: h arvest and preserve them without permission beforehand offer access to them (preferably online) circumvent their technological protection emulate software and hardware so that digital publications and websites can be kept readable limit liability for web archives of National Libraries and other legal deposit institutions, conform to the EU E-Commerce Directive. Harmonisation of copyright exceptions for CHIs (cf WIPO-study by Kenneth Crews).

20. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Other interesting topics for WIPO Orphan works (=right holder is unknown or untraceable): Eur Commission hearing 26 October. Harmonised copyright exception that enables cultural heritage institutions to make non-commercial use of orphans, and extended collective licensing for their large scale digitisation projects (for which a diligent search per work is undoable). Worldwide harmonisation to be preferred over European harmonisation. Google Book Settlement : A form of extended collective licensing (cf Scandinavian Copyright Acts). In practice creates monopoly for G to offer (paid) access to digitised books. Permits only G to make use of orphan works. Objections to worldwide adoption of the European database right: Out-of-copyright material is protected again when collected in a database, diminishing the public domain. Commercial scanning firms that digitise material from CHIs get to enjoy database right in this material. Compare my Ph.D. thesis: https://openaccess.leidenuniv.nl/handle/1887/12038 https://openaccess.leidenuniv.nl/handle/1887/12038

21. Koninklijke Bibliotheek – National Library of the Netherlands Title of the presentation Web archives online Australian Web Archive Pandora - http://pandora.nla.gov.au/http://pandora.nla.gov.au/ Deutscher Bundestag - http://webarchiv.bundestag.de/http://webarchiv.bundestag.de/ Harvard University Library - http://wax.lib.harvard.edu/collections/home.do http://wax.lib.harvard.edu/collections/home.do Icelandic Web Archive - http://vefsafn.is/index.php?page=englishhttp://vefsafn.is/index.php?page=english Internet Archive - http://www.internetarchive.orghttp://www.internetarchive.org Library of Congress Web Archive - http://lcweb2.loc.gov/cocoon/minerva/html/minerva-home.html http://lcweb2.loc.gov/cocoon/minerva/html/minerva-home.html New Zealand Web Archive - http://www.natlib.govt.nz/collections/a-z- of-all-collections/nz-web-archivehttp://www.natlib.govt.nz/collections/a-z- of-all-collections/nz-web-archive Patrimoni Digital de Catalunya (PADICAT) - www.padicat.catwww.padicat.cat Singapore Web Archive - http://www.nlb.gov.sg/http://www.nlb.gov.sg/ The National Archives UK - http://www.nationalarchives.gov.uk/webarchive/ http://www.nationalarchives.gov.uk/webarchive/ UK Web Archive - http://www.webarchive.org.uk/http://www.webarchive.org.uk/ A. Beunen, T. Schiphof, Legal aspects of web archiving from a Dutch perspective, http://www.kb.nl/hrd/dd/dd_projecten/webarchivering/documentatie.html http://www.kb.nl/hrd/dd/dd_projecten/webarchivering/documentatie.html