[Pasig-discuss] Legal Challenges in the Digital Preservation Lifecycle. Registration open for tutorial at iPres 2013, 2 Sep 2013

[Angela Dappert]

Legal Challenges in the Preservation Lifecycle – How to Address and how to Solve them! <http://timbusproject.net/events/events/210-legal-challenges-in-the-preservation-lifecycle-how-to-address-and-how-to-solve-them->

The TIMBUS project is offering a half-day tutorial at the 10th International Con ference on Preservation of Digital Objects (iPres) 2013, in Lisbon, Portugal on 2 September 2013. http://ipres2013.ist.utl.pt/index.html

Abstract

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 programs, documents
 *   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

Introductory Level

Duration

Three hours

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 migration.
 *   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 process.
 *   What is the importance of Service Level Agreements.
 *   What are license contracts and what is their relevance for digital preservation.
 *   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 APARSEN projects.

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 TIMBUS project.

________________________________

Dr Angela Dappert
Senior Project Officer
DPC c/o The British Library,
Floor 5, Room 14, 96 Euston Road,
London NW1 2DB

Digital Preservation Coalition<http://www.dpconline.org/>,
Innovation Centre,
York University Science Park,
Heslington, YORK YO10 5DG

Phone: +44 (0) 20 7412 7028
angela at dpconline.org<mailto:angela at dpconline.org>
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