Legal Challenges in the Preservation Lifecycle – How to Address and how to
The TIMBUS project is offering a half-day tutorial at the 10th
International Conference on Preservation of Digital Objects (iPres) 2013,
in Lisbon, Portugal on 2 September 2013.
Legal aspects of digital preservation activities and the legal risks that
motivate digital preservation are often underrepresented in digital
preservation and computer science conferences, tutorials and workshops. But
legal aspects are influencing nearly all preservation activities, and at
the same time provide a strong motivation for preserving digital artefacts.
The TIMBUS project endeavours to enlarge the understanding of the
preservation of business processes and services. One focus of the project
is the research of legal questions
, amongst them:
- Intellectual Property (IP) Rights related to databases, computer
- Data Protection regulations
- Legal obligations for preserving data in various sectors
- IT contracting issues
The legal research questions addressed in TIMBUS apply to digital
preservation in general and introduce the digital preservation community to
this area of research. In this tutorial we want to raise awareness of legal
aspects and want to discuss and illustrate different challenges and
potential solutions for these legal issues.
*Tutorial Level *
*Outline of the contents *
The tutorial will cover the following topics:
*IP-Rights and Digital Preservation*: The first part gives an overview of
legal issues in digital preservation and European Copyright. All relevant
European Copyright regulations are introduced and aspects of copyright and
the related rights of the Information Society Directive (Directive
2001/29/EC) as well as the Computer Program Directive (Directive
2009/24/EC) are explained in detail. We give an overview over the objects
of protection as well as exclusive rights of reproduction and alteration
relevant for digital preservation. We will discuss who is the author of a
computer program and who gains the exploitation rights in the case where a
computer program is developed by employees in order to fulfil their labour
contracts. The exceptions and limitations to the exclusive rights
established in the Information Society Directive and the Computer Program
Directive are explained in detail. We examine whether these exceptions and
limitations apply to the relevant processes for digital preservation.
*IT-Contracting*: In order to develop appropriate rules for the conduct of
parties involved in digital preservation, one should determine the
execution of digital preservation in legal contracts. Of particular
situation of interest is the one in which the user outsources the execution
of the preservation process to an external provider. In that case
comprehensive framework contracts appear necessary. The relevance of ITIL,
ISO/IEC 20000, change request clauses and the specific significance of
Service Level Agreements will be explained. The main focus of the module is
nevertheless the topic of licensing which is of equal importance in the
outsourcing scenario and in the in-house preservation scenario. After a
short introduction to licensing, the clauses of a license contract which
are relevant for the execution of digital preservation will be illustrated.
Special emphasis will be put on Open Source Licenses and their advantages
for digital preservation.
*Holistic Software Escrow*: If organisations buy customized software or use
externally provided services (like SaaS in the Cloud) they are dependent of
the third party’s maintenance and support regarding changes or bug fixes.
These dependencies pose problems, for instance if the developer files for
bankruptcy or fails to maintain the program. Software Escrow offers a
mitigation strategy here by placing a trustable third party between the
developer and customer. All artefacts relevant for the software are
deposited at the escrow agent, who is obliged to hand over the material in
case a stipulated trigger event occurs. Different technical and legal
considerations that have to be taken into account will be the focus of this
module. First we will give an overview of the Software Escrow domain. Then
we will point out different aspects that have to be considered for a
successful escrow. We will also give an overview of the escrow phases
(planning, executing and redeploying) and how to legally and technically
ensure that a developer is allowed to and is able to maintain it once the
material is handed over.
*Legalities Lifecycle Management*: We have started to develop a prototype
tool to facilitate the digital preservation process with regards to legal
considerations. It provides decision support of legal aspects for
preservation and migration of data, documents and software services and
addresses some legal long-term aspect of an archive. The solution for
legalities lifecycle management (LLM) is based on open source technology,
which is tailored to the need for the continuous management of legalities.
The tool supports legal assessment by asking questions sequentially,
similar to the questions a lawyer would ask during the legal consultation.
Having gathered the crucial and legally relevant information from the user,
the LLM tool guides the user step by step in the relevant legal areas and
outlines the situation. This is an easily manageable and timesaving way for
the user to get acquainted with the legal requirements for his specific
tasks. In order to allow for a deeper understanding and the right approach
to the legal matter, the user has the possibility to read the guidelines
which are appended as an annex to the LLM. They provide an overview over
the subject matter and explain the interdependencies between the questions.
In addition and for the purpose of long term digital preservation, the LLM
tool will provide an automatic watch feature that informs about changes in
the legal environment, i.e., about changes in laws or legal directives that
are considered relevant for a specific organization. The outcome of the LLM
tool is a simple and comprehensive report that covers the most relevant
legal areas of the digital preservation domain.
*Intended Audience *
The tutorial is targeted at professionals interested in digital
preservation, who want to start learning about legal challenges in
preserving digital artefacts.
*Expected Learning Outcomes *
The participant will understand:
- Who is the author of a computer program, who is the copyright holder
and what happens if the computer program is developed by various employees
in fulfilment of their employment contract.
- What is the legal difference between data migration and software
- What is an escrow agreement.
- What reasons are there for an escrow contract.
- How can an escrow contract mitigate risks of a third party dependency.
- Which artefacts have to be deposited.
- How to ensure the quality of the deposited material.
- What kinds of framework contracts seem appropriate for digital
preservation if an external provider is involved in the execution of the
- What is the importance of Service Level Agreements.
- What are license contracts and what is their relevance for digital
- Which clauses in a license contract appear relevant for the
permissibility of digital preservation.
- What are the advantages of OSS for digital preservation and what are
the legal characteristics of Open Source Licenses.
- Which legal obligations cause risks, motivating digital preservation.
*Biography of the Presenters *
*Dr. Rihards Gulbis* works as a Legal Adviser on Copyright in the Ministry
of Culture of the Republic of Latvia where he deals with a wide range of
legal issues regarding copyright, such as national copyright policy,
amendments to the Latvian Copyright Law etc. He also provides expertise and
takes part (as a national expert) in the European Union Working Party on
Copyright and the Standing Committee on copyright within the World
Intellectual Property Organisation. His academic and research work in
Latvia and abroad covers IT law encompassing many aspects of intellectual
property law. His doctoral thesis addresses legal protection of computer
programs and he has various scientific publications on this topic and other
copyright issues. Dr. Rihards Gulbis regularly gives lectures and seminars
on copyright in universities and he has run the intellectual property study
course at the BA School of Business and Finance in Riga.
*Dr. Barbara Kolany* (ITM) works as a research associate at the Institute
for Information, Telecommunication and Media Law in Muenster, Germany. She
has studied law in Austria and Spain with emphasis on European and
International law. After obtaining her doctorate in Law she has started
working on the TIMBUS project in April 2011.
*Silviya Yankova *(ITM) is a lawyer and works as a research fellow at the
Institute for Information, Telecommunication and Media Law in Muenster,
Germany. She studied law at the University of Freiburg with emphasis on
European law. She has carried out her legal clerkship in Freiburg and
Offenburg, Germany as well as in Vienna, Austria and specialised in
particular in copyright law.
*Elisabeth Weigl* (SBA) received her master’s degree in “Information &
Knowledge Management” from the Vienna University of Technology, where she
is currently enrolled in a doctoral program in Computer Sciences with a
focus on Digital Preservation. Since February 2012 she is working for
Secure Business Austria where she is conducting research for the TIMBUS and
*Daniel Draws* (SQS) studied Computer Science in Munich. He joined SQS (the
world’s largest company in Software Quality) in 2008 and has been part of
SQS Research since 2011. With a strong interest in the internal quality of
software systems he started his research in digital preservation in the