Legal issues relating to the archiving of Internet resources in the UK, EU, US and Australia

Since its origins as a researcher's tool at CERN in the early 1990s, the World Wide Web has developed into an immense international complex of hyperlinked information. Some of the information available on the WWW simply mirrors that found in existing print publications. Much, however, is to be found nowhere else but (often temporarily) on the WWW. Some of that information, such as the webpages produced during and after the September 11 terrorist attacks, is of significant historical importance; other information, such as that found on medical websites, may be of long-term scientific value. The uniqueness of the information to be found on the medium, combined with the ephemerality of digital information, has resulted in a growing perception that there is a need for mechanisms to preserve at least some of that immense volume of information for the longer term. The task of preserving web-based information is not, however, an easy one. Aside from the technical difficulties inherent in preserving transient digital resources, the legal environment in many countries is also often inhospitable to, or unappreciative of, the role of the would-be web archivist. If the most obvious legal stumbling-block is copyright law, hazards also lurk in the form of defamation law, content liability and data protection laws. Whilst these issues pose problems for the web archivist, these need not be insurmountable. Careful selection of resources, combined with an effective rights management policy, and processes for ensuring that controversial or potentially illegal material can be only selectively accessed, or can be removed if required, reduce significantly the likelihood of falling foul of the law or upsetting rightsholders. This paper examines the key legal issues in relation to the United Kingdom, and how potential risks to a UK based web archive might be minimised. It also surveys the approaches to web archiving taken in some other jurisdictions, including several EU countries, the US and Australia. The experiences in those countries suggest that: - a legal framework for deposit or archiving of webpages is highly desirable to clarify legal issues and to protect the archivist (EU); - a pragmatic approach to archiving can be successful, but will carry considerably heightened legal risks (US); - in a jurisdiction where there is no legal framework for deposit or archiving of webpages, a licensing approach, while not able to cope with the breadth of material obtained by general harvesting, provides both an acceptable degree of legal risk, and permits the potential archiving of both 'shallow' and 'deep' web resources (Australia).