Code of Best Practices for Fair Use in Software Preservation

The Association of Research Libraries (ARL) has been awarded a $315,000 grant from the Alfred P. Sloan Foundation to develop and disseminate a Code of Best Practices in Fair Use for Software Preservation. This code will give individuals and institutions clear guidance on the legality of archiving software, in order to ensure continued access to digital files of all kinds and to offer hands-on understanding of the history of technology. The code will help cultural heritage institutions, collectors, and others save the digital record as well as advance research, discovery, and learning through the use of archived software.

Libraries, archives, and museums hold countless software titles that they do not have clear authorization to preserve or make available for access. They also hold scores of electronic files that are inaccessible without appropriate software. Some individuals and institutions are concerned that preserving and providing long-term access to software without permission is legally uncertain. At the same time, holders and users of software collections cannot afford to waste time, energy, and money seeking unnecessary permissions.

The Code of Best Practices in Fair Use for Software Preservation will help ensure that the subjects, products, and tools of scholarship will continue to be accessible despite evolving technology. The code will express a consensus view of how fair use—the legal doctrine allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances—applies to core, recurring situations in software preservation. Fair use has become an increasingly vital tool for permitting cultural heritage institutions and their users to make scholarly and pedagogical uses of their collections with due respect for the interests of copyright holders.