ThARL Logoe Center for Media & Social Impact has joined a project to help those who preserve, archive and give access to software best employ the copyright doctrine of fair use.

The project, run by The Association of Research Libraries (ARL) benefits from an Alfred P. Sloan Foundation grant, and will result in a Code of Best Practices in Fair Use for Software Preservation. This code will give people and institutions clear guidance on the legality of archiving software, in order to ensure continued access to digital files of all kinds and to offer hands-on understanding of the history of technology. The code will help cultural heritage institutions, collectors, and others save the digital record as well as advance research, discovery, and learning through the use of archived software.

Why bother?

Fair use has become an increasingly vital tool for permitting cultural heritage institutions and their users to make scholarly and pedagogical uses of their collections, while offering due respect for the interests of copyright holders.

Libraries, archives, and museums hold countless software titles that they do not have clear authorization to preserve or make available for access. They also hold scores of electronic files that are inaccessible without appropriate software. Can they let patrons use a version of WordStar to open a 1980s digital file? Can they emulate game software, so patrons can study game design?

Some archivists are not sure whether preserving and providing long-term access to software without permission is legal. Others want to know if they are wasting time, energy, and money seeking unnecessary permissions.

Why a Code?

The Code of Best Practices in Fair Use for Software Preservation will help ensure access to the subjects, products, and tools of scholarship, even as software becomes obsolete. It will express a consensus view among archivists of how fair use—the legal doctrine allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances—applies to core, recurring situations in software preservation.

CMSI’s Patricia Aufderheide joins the project team, which includes Krista Cox and Prue Adler of ARL, Brandon Butler of the University of Virginia Library, Peter Jaszi of American University’s Washington College of Law, and attorney Jonathan Band. Many of the team members helped to develop ARL’s 2012 Code of Best Practices in Fair Use for Academic and Research Libraries and all are authorities on fair use.

The team is conducting research and interviews with software preservation experts and other stakeholders this fall and plans to release a report on this research in winter 2017–2018. The Code of Best Practices in Fair Use for Software Preservation will be published in fall 2018, supported by webinars, workshops, online discussions, and educational materials through spring 2019.