The copyright permissions culture in software preservation and its implications for the cultural record

This report summarizes results from research with the professionals who make up the software preservation community about how their understanding of copyright intersects with their preservation mission. Professionals typically face significant challenges from perceived copyright barriers. They tend to assume that a license or other express permission from a copyright holder is required before embarking on a wide variety of preservation activities, and typically find that such permissions are difficult or impossible to obtain. In the absence of reliable information to guide informed risk assessment, professionals act on the reasonable assumption that high levels of legal risk could be associated with activities that potentially implicate copyright and related doctrines. As a result, they often forego and postpone essential preservation activities, and establish access policies for collection materials that strictly limit scholarship. Preservation professionals have actively explored opportunities for collaboration and resource-sharing, but their prospects are clouded by legal uncertainty. At the same time, professionals are frustrated and deeply concerned that over-conservative approaches are limiting access to software and software-dependent works, imperiling the future of digital memory. The community has so far had little access to information or expert advice about alternatives to seeking permission, and in particular about the fair use doctrine, which allows the use of copyrighted materials without permission from the copyright holder under certain circumstances. Developing a shared understanding among preservation professionals of best practices around employing fair use to achieve their preservation and access mission will facilitate their work.