Introduction

Digital preservation activity in the European Union takes place within a complicated and often contradictory legislative landscape. Over and above national law stands the European Community (EC) framework – which, although meant to be incorporated into member state legislation, is not uniformly or completely implemented across the whole of the EU. Finally, certain non-EU legislation, as well as international understandings and treaty obligations such as the Paris Convention for the Protection of Industrial Property (1883), and the Berne Convention for the Protection of Literary and Artistic Works (1886), all play their part in determining the precise legal status of preservation actions. During the first year of the KEEP1 project two legal studies were commissioned to explore the impact of European law on the project's proposed programme of work. The purpose of the present document is to articulate, as far as is possible, the main conclusions of the KEEP legal studies in layman's terms. Naturally, this involves some diminution of legal rigour, in consequence of which the present document should not be regarded as legally definitive.

The KEEP project

The KEEP project was the first EC-funded project to concern itself primarily with an emulation-based approach to digital preservation. From the outset it was recognized that there was some potential for the project to encounter unique legal issues. Emulation involves the creation of software that permits one hardware platform (computer) to ‘mimic’ the behaviour of an entirely different hardware platform. In a preservation context this has enormous potential, as it offers the possibility of running software originally designed for a now-obsolete computer on the latest hardware, although there are, of course, considerable technical challenges which need to be addressed before this potential can be achieved. There are also obvious copyright issues which need to be considered when writing or using software that attempts to reproduce exactly the behavioural characteristics of third-party code.

An emulation-based approach to preservation has the advantage of avoiding any need to make alterations to preserved files in order to make them accessible on modern machines. In this respect emulation is very different in character from ‘migration’-based preservation techniques that ‘convert’ old file formats into forms which run on new platforms.