Earlier this week, the U.S. Library of Congress issued a report on digital archiving in which it expressed concern about the obstacles created by DRM to the preservation of digital materials. This concern – which the Canadian government addressed in a narrow context for the Library and Archives Canada legal deposit program in 2006 – remains a major issues for archives across the country. Incredibly, Bill C-61 leaves the issue virtually untouched, potentially shutting out archives from preserving Canadian history in digital form. The bill includes a limitation on liability for archives for circumvention (Section 41.19 provides that archives that circumvent without awareness of a legal violation do not face financial damages) and lists archival interests as a potential factor for new exceptions, yet there is nothing to ensure that digital archiving is not locked out due to anti-circumvention legislation.
Other countries have recognized this danger and sought to address it. For example, the Czech Republic's copyright law provides at Article 37 that:
(1) Copyright is not infringed by a library, archive, museum, gallery, school, university and other non-profit school-related and educational establishment:
a) if it makes a reproduction of a work for its own archiving and conservation purposes, and if such a reproduction does not serve any direct or indirect economic or commercial purpose;
That country's anti-circumvention provisions then specify at Article 43(4) that:
Legal protection under Paragraph (1) [the anti-circumvention provision] above shall be without prejudice to the provisions of . . . Article 37 (1) (a) . . . to the extent necessary to benefit from the exception. An author who used technical measures under Paragraph (3) in respect of his work shall make his work available to lawful users to the extent necessary to fulfil the purpose of the stated exploitation of the work.
It is difficult to understand how a government can intentionally introduce legislation that will cause clear harm to the preservation of a country's own digital heritage. Amendments are needed to address the digital archiving issue and the Canadian Council of Archives, thus far publicly silent on the issue, must speak out.