"Digital preservation" sounds simple enough; just slap that data onto increasingly cheap and spacious hard drives, keep some offsite backups, and you're good to go, right? Not so fast, says the Library of Congress, and it points a crabbed and bony finger directly at US copyright law—and at DRM.

Libraries labor under most of the same rules that govern the rest of us, with a few key exceptions. For instance, libraries can make three copies of unpublished works in their collections, and copyright holders have to provide the Library of Congress with two deposit copies of all books.

But copyright law also hampers important work being done at places like the Library of Congress, and a major new report on the issue from the Library points out the problems with the current rules. One big issue is the exemption for published works in a library's collection; these can also be copied three times, but only to "replace a work in their collections that is damaged, deteriorating, lost or stolen or whose format has become obsolete." In other words, librarians can't backup or archive such works until destruction is well under way.

In addition, "obsolete" doesn't mean what you or I might mean by the term; the Library notes that LPs still can't be copied into digital archives because record players remain available on the open market and are therefore not "obsolete."

In addition, the three-copy limit makes little sense in an all-digital world. Making three photocopies of a book or magazine to replace a moth-eaten copy is straightforward, but how do you comply with the law when simply serving up the digital files to scholars creates a host of server and cache copies that exceed the limit?

And what can libraries do about the massive amount of material that is "born digital"? Unlike print publishers, web publishers and bloggers operate without any mandatory deposit requirements, and the Library of Congress is overwhelmed by the prospect of trying to archive the web (though its Web Capture project does grab some primary resources for use in its collections and exhibits).

Technological protection measures, better known as "DRM" in the US, are also an issue, thanks to the Digital Millenium Copyright Act (DMCA). That law famously prohibited circumvention of DRM, and it contained no exceptions for libraries and archives that want to preserve digital material. Every three years, the Librarian of Congress gets to craft exemptions to this rule, but the report drily notes that this doesn't solve the problem.

"Even though the Librarian is empowered to create additional exemptions, he cannot affect the ban on trafficking in circumvention devices," says the report. So, although circumvention could become legal for libraries, "the means to take advantage of the exception may not be available."

The 200-page report is remarkably thorough and includes analysis from several other countries on how their own copyright laws pose problems for libraries' digital preservation efforts. Suggestions are of course offered—much the same ones that were offered several months ago by another study group—but we have yet to hear of any momentum on Capitol Hill for this type of DMCA reform. Certainly, nothing on the issue will be done this year.

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