February 27, 2012
24 February 2012. Washington, DC—The Association of Research Libraries (ARL) has released "A New Day for Website Archiving 2.0," an updated analysis by copyright expert Jonathan Band of the legal arguments available to support website archiving by research libraries.
Many research libraries are interested in collecting webpages as part of their mission to collect and preserve cultural artifacts to support scholarship and teaching, and several important projects are already under way. Most websites contain copyrighted works and may themselves be subject to copyright, so research libraries interested in collecting these materials will need to consider whether and how their projects can be carried out within the law. Asking permission to copy websites is often difficult or impossible, so the doctrine of fair use, which allows copying without permission, will play an essential role in justifying these practices.
Band's analysis focuses on the fair use doctrine and takes account of key developments in the case law, as well as a very helpful memo by the US Patent and Trademark Office, and the recent release of the Code of Best Practices in Fair Use for Academic and Research Libraries. In his original 2006 analysis, Band argued that website archiving by libraries was strongly supported by fair use. The updated analysis concludes that the arguments in support of this practice have only gotten stronger, as practice in this area has gone unchallenged for six years, and the courts continue to endorse a progressive interpretation of fair use.