3.2.2 OBTAINS SUFFICIENT CONTROL FOR PRESERVATION
It is important for the OAIS to recognize the separation that can exist between physical ownership or possession of Content Information and ownership of intellectual property rights in this information. If it has created the information and is the legal owner of the Content Information, the OAIS already has the independence to do what is required to preserve the information and make it available. When acquiring the Content Information from any other producer or entity, the OAIS should ensure that there is a legally valid transfer agreement that either transfers intellectual property rights to the OAIS, or clearly specifies the rights granted to the OAIS and any limitations imposed by the rightsholder(s). The OAIS should ensure that its subsequent actions to preserve the information and make it available conform with these rights and limitations. When the OAIS does not acquire the intellectual property rights, the agreement should specify what involvement the rightsholder(s) will have in preservation, management or release of the information. In most cases, it will be preferable for the OAIS to negotiate an agreement that specifies the rightsholder(s) requirements and authorizes the OAIS to act in accordance with those requirements without active involvement of the rightsholder(s) in individual cases.
The OAIS must assume sufficient control over the Content Information and Preservation Description Information so that it is able to preserve it for the Long Term. There is no issue with the AIP’s Packaging Information because, by definition, this is under internal OAIS control. The problems of assuming sufficient control of the Content Information and Preservation Description Information, when they are largely digital, are addressed in three related categories, as follows:
– copyright implications, intellectual property and other legal restrictions on use;
– authority to modify Representation Information;
– agreements with external organizations.
Copyright implications, intellectual property and other legal restrictions on use: An Archive will honor all applicable legal restrictions. These issues occur when the OAIS acts as a custodian. An OAIS should understand the intellectual property rights concepts, such as copyrights and any other applicable laws prior to accepting copyrighted materials into the OAIS. It can establish guidelines for ingestion of information and rules for dissemination and duplication of the information when necessary. It is beyond the scope of this document to provide details of national and international copyright laws.
Authority to modify Content Information: Although the Fixity Information within the Preservation Description Information of an AIP ensures that the Content Information-related bits have not been altered, there will come a time when Content Information bits are not in a form that is convenient for the Consumers from the Designated Community. The Content Information bits may be fully documented in available hardcopy forms, so technically the information has not been lost, but practically the information has become inaccessible. The OAIS needs the authority to migrate the Content Information to new representation forms. If it is acting as a custodian, it may need to seek additional permission to make such changes. If the information is copyrighted, the OAIS should already have negotiated permission to make the changes needed to meet preservation objectives. It may employ subject matter experts, from outside the OAIS, to help ensure that information is not lost. Ideally, when this situation arises, both the original AIPs (fully described) and new AIPs will be retained. Digital Migration issues are addressed more fully in 5.1
Agreements with external organizations: An OAIS may establish a variety of agreements with other organizations to assist in its preservation objectives. For example, it may establish an agreement with another OAIS so that it does not have to preserve all the common Representation Information objects related to its Content Information objects. Agreements with other organizations should be monitored to be sure they are being followed and remain useful.
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