Will there continue to be a content preservation function for the copyright laws?

First the bad news—Mrs Kat has reached the retirement age set by her employer and will soon be leaving her long-time position in information sciences. Now for the good news—Mrs Kat will shortly begin formal
retraining (replete with the grant of a diploma and all) to become an archivist, after which she will attend to the archives of her former institutional employer. Truth be told, this Kat is not quite sure what an archivist is meant to be doing, but my impression is that it is something about organizing what the institution knows (mostly) about its past and present so it can preserve those contents for future generations.

Within his personal swirl of trying to better understand the archive function, this Kat received this week a notice from yet another professional periodical to which he subscribes, advising him that the print edition of the journal will be discontinued. As I and my hoary co-generationalists are being reminded almost daily, with respect to journals and newspapers, physical copies are oh-so-yesterday. Unless this Kat augments his Kindle (the better to read the daily newspaper) with a proper tablet, he faces the prospect of having the portability of being able to read a physical journal-- wherever he wants --seriously constrained to the single corner in his home and office where internet connectivity will enable him to download the desired contents. More generally, how should he be viewing the question of what is the ultimate repository for content, when the fate of the relevant digital file may depend on the reliability of digital storage and back-up systems.

The thread that connects Mrs Kat’s foray into the world of archiving and the looming challenge of how this Kat will be accessing content going forward is the obligation of the copyright system to address the issue of the preservation of contents. In past times, preservation of contents, at least in an archival sense, was simply conceived. Whether the great ancient library of Alexandria, here, or the statutory requirement to deposit each new book in the library of Oxford or Cambridge, or at the U.S. Library of Congress, there was a sense that an enlightened society worth its name had to attend to gathering up as much published content as possible into a single place. Sure, there was the risk that the repository and learning contained therein might go up in smoke, as Umberto Eco reminded us in The Name of the Rose, here. But at least there was a supreme value placed on the preservation function. It's not so surprising, therefore, that the preservation function has long been part and parcel of the relevant copyright law. The question is—to whom and how, if at all, will this preservation function be addressed in our headlong dash to fully embrace the digital world?

The problem with the archival content preservation function is that it lacks a constituency.The author, the commercializing entity and the public at large each have a stake in protecting original works and their distribution. There may be differences of view between these stakeholders about how far to push and extend this right, but there is rough agreement about its fundamental contours. Add to that the grafting of Lockean notions of property, here, on to works protected by copyright, and we have a particularly longstanding and vibrant dialogue on the nature of copyright. The deposit of books was a by-product of this process (even pre-Statute of Anne) and, as noted, enjoyed statutory protection of sorts. To that extent, the preservation of contents was part and parcel of copyright law, even if it was not directly connected with individual creation and the enforcement of rights.

But who will address the challenge of content preservation in the face of the disappearance of the paradigm? There is much talk about net neutrality and equal access to the infrastructure backbone (even if the U.S. Court of Appeals for the District of Columbia has thrown a spanner into the legal works, here). But precious few seem to be addressing the preservation function within the framework of copyright laws in the digital age. Maybe content preservation is being removed from the copyright framework in favour of being subsumed within the dialogue over data protection; maybe it is simply not part of the current copyright discussion at all. In either case, from the vantage of this Kat, this is a pity. I would hate to think that Mrs Kat is purring up the wrong tree in her new archival career.