Digitising videos and the “Preservation exception”
By Chris J Holland, on 3 September 2015
This is an enquiry from one of the UCL Libraries: Would the “Preservation exception” contained in Section 42 of the Copyright, Designs and Patents Act 1988 (CDPA) cover the digitising of their extensive collection of historical videos? The videos were originally published in various countries and are not made available for loan.
The answer is that this collection is a good example of material in a superseded format which could be digitised under the terms of the Preservation exception. The main conditions from CDPA Section 42(2) are that the “work” must be:
“(a) included in the part of the collection kept wholly or mainly for the purposes of reference on the institution’s premises,
(b) included in a part of the collection not accessible to the public, or
c) available on loan only to other libraries, archives or museums”
Despite the ambiguities we can assume that it is enough for one of the conditions to be fulfilled and archival video collections will usually tick the box.
There is a further condition that the exception only applies when it is “not reasonably practicable” to fulfill the preservation need by purchasing a digital copy – CDPA Section 42(3).
What can be done subsequently with the digitised copies is also governed by copyright law. The “Dedicated terminals” exception (CDPA Section 42) would permit the digitised videos to be made available within the Library. Following CJEU case law (Ulmer v. Technical University of Darmstadt ) the Dedicated terminals exception might also cover the digitisation itself.