Legal Aspects of Digital Preservation

Legal Aspects of Digital Preservation

Thomas Hoeren, Barbara Kolany-Raiser, Silviya Yankova, Martin Hecheltjen and Konstantin Hobel

This important book illustrates the implications of preservation actions on intellectual property rights and data protection. These can include: Potential violation of data protection laws through the storage of personal data, and potential infringement of a copyright-holder’s exclusive right to reproduce and store their copyright protected data. The book considers the scope of protection under both IP and data protection rights, and offers strategies on avoiding potential infringement. Further IT contracting issues and selected existing legal obligations to preserve data are described with a particular emphasis on digital preservation.

Chapter 5: Legal obligations to preserve data

Thomas Hoeren, Barbara Kolany-Raiser, Silviya Yankova, Martin Hecheltjen and Konstantin Hobel

Subjects: law - academic, information and media law, international commercial law


As illustrated in Chapter 2, examples of the practical relevance of having an intelligent digital preservation solution in place may be found in numerous areas of law. This chapter will complement that initial discussion by highlighting obligations to retain and preserve data that apply to all enterprises (non-sector-specific obligations) and corresponding additional obligations for undertakings operating in selected business areas (sector-specific obligations). At the present time, a uniform legislative approach towards the regulation of the preservation of information, or indeed the preservation of digital data, has not yet evolved. There is no European record-keeping framework, nor have individual Member States of the European Union enacted relevant record-keeping legislation. Legal requirements in respect of digital preservation may thus be found fragmented in many different areas, where a need to document and keep information exists, e.g. for the purposes of a trial or to ensure compliance with provisions laying down explicit obligations for data preservation. Given the vast amount of national and European laws containing provisions obliging natural persons, enterprises or state bodies directly or indirectly to retain data, section 3 (sector-specific obligations) focuses on selected areas with an inherent need for digital preservation solutions. Since a uniform assessment of all business sectors is not feasible, the section will highlight record-keeping obligations in those selected areas.

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