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• Nigel Stanger

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• Copyright (New Technologies) Amendment Act 2008

• Submissions Received

Date Received: 2003-02-19

Original version: Digital Copyright: Position Paper Submissions: No. 10: Nigel Stanger [90KB PDF]
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Good morning, I am writing to comment on the Position Paper on Digital Technology and the Copyright Act 1994. I am pleased to see that the various proposals in this paper seem to follow a reasonable common-sense approach and balance the rights of copyright owners against the public good. The Ministry has obviously observed the enaction of earlier digital copyright legislation in other countries (such as the USA's Digital Millennium Copyright Act) and has learned from their experiences. It would appear that the proposed policy directions will avoid most of the more egregious applications of digital copyright law that have occurred elsewhere (for example, threatening encryption researchers with prosecution under the DMCA if they publish details of the efficacy of a TPM).

I feel I must, however, comment on paragraphs 169 through 171 on page 39, which discuss digital archiving of works held by libraries and archives. It is stated in paragraph 170 that section 55 of the Copyright Act allows format shifting for digitally _archived_ works. I feel this is too narrow and should probably be extended to _original_ digital works, for the reasons outlined below.

Let me start by examining this statement in paragraph 169: "Digital technology offers significant benefits for the preservation of materials held by libraries and archives, in particular because digital works are less susceptible to degradation."

I am, quite frankly, astounded by this statement. Digital works are generally _much_ more susceptible to degradation, primarily because of the media on which they are stored. For example, the typical life of a CD-R disk burned on a personal computer is between two and thirty years (depending on a host of factors such as media quality and amount of use), and under ideal conditions of constant low temperature, low humidity, low use, etc., it might last up to 100 years. Contrast this with a book printed on high quality acid-free paper, which might typically survive fifty to 500 years, and under ideal conditions over 500 years. Clearly in this case the digital format is inferior. I personally have suffered at least four complete hard disk failures in the last ten years, fortunately without any serious loss of data.

Here are some estimated figures for physical media longevity, obtained from the book "Dark Ages II: When the Digital Data Die" by Bryan Bergeron (Prentice-Hall 2002), table 3-5:

It is clear from these data that the physical longevity of digital media is generally nowhere near as good as "traditional" media. (There are counter examples of course: video stored on DVD will probably have greater physical longevity than that stored on a standard video cassette.)

This of course only considers _physical_ longevity and does not take into account technological obsolescence. In the last twenty-five years computer storage technology has gone from 8 inch floppy disks holding about 100 kilobytes to 19 gigabyte DVDs (a 200,000 times increase in storage capacity, doubling roughly every 18 months). I have in my possession several 8 and 5.25 inch floppy disks from the early 1980's that are only readable on very specific hardware (which I am fortunate to have). In the absence of that hardware these disks are little more than funny-shaped coasters.

On the software side, many different computer operating systems have come and gone over the last twenty years, and with them, many thousands of application programs. What can you do with you fifteen year old WordStar files when the application program that created them no longer exists, and most modern word processing software will not read them? I myself recently had to deal with some word processing files created in the mid-1990's; I was fortunate that a modern version of Microsoft Word could at least read the text of these files, but the images could not be converted and had to be reconstructed manually from paper copies of the documents.

Now let us consider paragraph 170: "This ability to make a copy would also allow format shifting of material, as this is simply making a copy in another format." This refers to the ability to make copies for archival purposes under section 55 of the Act. However, what if the work is in digital form to start with, for example, a bibliographic database or an electronic encyclopaedia? Under section 55, libraries could make an archival copy of the original and then format-shift the copy as necessary. However, this is no use to the library patrons if they are not allowed access to the copy when the original becomes obsolete through technological advances. One could perhaps argue in such cases that that the original has become "lost, damaged or at risk" (paragraph 171), but this does not seem clear to me, as the original is still clearly intact.

One could argue that new versions of the digital work will become available as technology advances. This is not always the case, however. What if the company that produced the work discontinues the product, or worse, no longer exists? In such cases, the ability to format-shift the original work would solve the problem, but I assume that this is currently _not_ permitted under section 55. This is not archiving, but rather preservation of existing works.

I therefore consider it crucial that format shifting of original digital copyrighted material be allowed, but with sensible restrictions such as those already noted for archival material (for example, no updated or alternative version of the work is available). While this will obviously be difficult or impossible for some works (such as software which requires a very specific operating environment), it is extremely important for electronic documents that may be kept for long periods of time. If it is difficult to open documents after only a few years, imagine how difficult it would be after fifty, or a hundred! By then, details of the original file format may have been lost, rendering the document inaccessible and useless. (This is also my primary objection to many current copy-prevention systems --- when a digital work comes out of copyright, will we still be able to read it? That, however, is a different argument and I will not pursue it here.)

The technological landscape is changing continuously as noted earlier. Today's hot technology will be old hat in five years and obsolete in ten, becoming the digital equivalent of a door-stop. An extension of section 55 to allow format shifting of original digital works under specific circumstances seems to me to be the only way to prevent essential digital works from becoming inaccessible.

Yours,

Dr. Nigel Stanger, Lecturer
Department of Information Science
School of Business
University of Otago
PO Box 56
Dunedin

[The opinions expressed in this message are my own, and do not necessarily reflect the opinions or policies of the Department of Information Science, the School of Business or the University of Otago.]