Obligation to maintain the digitized objects records / platforms updates (and avoiding obsolescence)

A - Issue at stake

  • With the growing importance of digitization, museums must also ensure digital preservation, i.e. that digital objects can be located, rendered, used and understood in the future.1 However, this is currently not easy due to the vulnerability of digital media to deterioration and the obsolescence of digital platforms and technologies.2 Failure to address those problems may lead to the loss of all digitized objects.
  • Currently, no international or regional cultural heritage convention directly addresses the preservation of digitized cultural heritage in the context of museums’ mass-digitization activities. However, a few soft-law texts, both at the international3 and European4 levels, mention that digital preservation should be a development priority. The ReACH (Reproduction of Art and Cultural Heritage) initiative also specifically targets this issue.5 Although these soft-law texts and initiatives are not binding on Member States and cultural heritage institutions, they clearly illustrate how preservation of digitized cultural heritage is paramount at the international, regional and national levels and provide ample justification for states to create new legislation to that effect.

B - Clarifications

  • An obligation to preserve digitized cultural heritage should be declared as part of the existing international conventions, to ensure long-term accessibility to digital information for future generations.
  • At the national level, legislators should attach an obligation to maintain up-to-date digital tools and object records to the copyright exception to digitize for conservation purposes.
  • Because technology continually evolves, and because multiple methods may be used to reach the goal of effective preservation, the precise method through which digitized content is to be preserved should not be defined by law. Rather, legislators should impose a general obligation on cultural heritage institutions and/or other parties participating in the digitization process, as the case may be, to maintain or preserve this content. Such an obligation could be drafted along the lines of the obligation to retain fiscal and corporate records that already exist in many countries, but without a set time frame.6 Museums should then create more detailed obligations pertaining to those technical standards through self-regulation.
  • Because states have an important part to play in the preservation of digitized cultural heritage, the maintenance costs should be split between the state and the entity (legal entities, such as museums or foundation or individuals) benefitting from the copyright exception to digitize for conservation purposes.
  • The transfer of digitized content from one digital format to another (to avoid obsolescence) implies some changes to the original digitized file, which in turn raises issues of authenticity. To solve those issues, different models of certification for repositories of digital materials and monitoring of digital preservation processes should be introduced.7