Definition and Legal Foundations of Archival Material
Als Archival Material in the German and European context generally refers to all records produced, received or acquired by public or private entities, persons or institutions, which are taken into an archive for the purpose of permanent preservation, safeguarding, cataloguing, and use. Archival material represents a central component of cultural heritage and is subject to special legal treatment. The statutory framework arises from both national law and European requirements.
Origins and Types of Archival Material
Public and Private Provenance
Archival material is distinguished by its origin:
- Public archival material: Comprises records created within authorities, courts, public enterprises or other institutions governed by public law in the course of their official activities.
- Private archival material: Refers to privately sourced documents, such as those from associations, businesses, political parties, foundations or private individuals, which have enduring historical value.
Materials and Formats
Archival material consists not only of classic paper documents, but also includes:
- Files, deeds, maps, drawings, plans
- Image, film and audio documents
- Electronic and digital records
The term is therefore media-neutral and is based on the lasting evidentiary and documentary value.
Statutory Foundations and Regulations in Germany
Federal and State Archive Laws
The legal requirements for archival material in Germany are primarily governed by archive laws:
- Das Federal Archives Act (BArchG) governs archive management at the federal level, in particular for records of federal administration.
- Additional regulations exist in the state archives, each of which has its own archive laws (e.g., Bavarian Archive Law, North Rhine-Westphalian Archive Law), especially applicable to municipal authorities and regional institutions.
These laws determine, among other things:
- The definition and distinction of archival material
- The obligation to offer records by authorities
- Procedures for selecting records to be archived (archival worthiness)
- Cataloguing and retention obligations
- Questions of record collection and disposal (appraisal and destruction)
Obligation to offer and deliver
Authorities and public institutions are legally obliged to offer, to the relevant archive, records that are no longer needed but may warrant permanent retention. The archive then determines their archival worthiness and decides which records will be permanently retained as archival material and which are to be destroyed (disposal).
Archival Worthiness and Disposal
Not every record is automatically archival material. Whether a document should be kept permanently is assessed on the basis of its historical, legal, administrative and cultural significance. The specific criteria are set out in the relevant archive laws and administrative provisions.
Legal Positions and Protection of Archival Material
Protection Rights, Ownership and Disposal
In principle, the transfer of archival material usually entails a transfer of ownership from the transferring entity to the archive. For private submissions, ownership rights remain with the depositor or may be transferred to the archive depending on the agreement.
Data Protection, Copyright, and Personal Rights
- Data protection: Archival material may contain personal data. According to archive laws, its use is subject to a special purpose limitation and restricted accessibility, especially in the case of sensitive or protected data. The protection periods are specifically regulated in the Federal Archives Act (§11) and the respective state archival laws (as a rule, 30 years after the record was created, 10 years after the death of the data subject).
- Copyright: Works protected by copyright remain protected in the archive, so uses are subject to copyright limitations and may require obtaining permission for use.
- Personal rights: Third parties may claim protection of their personal rights with regard to particularly sensitive archival records, such as those from the medical field. Here, provisions of the Civil Code (BGB) and the General Data Protection Regulation (GDPR) apply additionally.
Accessibility and Use
The use and provision of access to archival material is subject to specific legal requirements. As a general rule, the public has a right to information (“duty of archives to permit use”), which may, however, be restricted if protection periods are running or legitimate interests of third parties are affected.
Significance in the Context of Freedom of Information and Transparency
Archival material plays an important role in the system of freedom of information. Under the Federal and State Freedom of Information Acts as well as the Environmental Information Act, certain archives are obliged to grant access to their holdings. The regulations of archival law must be given priority in this context.
European and International Regulations
At the European level, references to archival material can be found particularly in the context of the General Data Protection Regulation (GDPR), which attributes special significance to archiving for the public interest (Art. 89 GDPR). UNESCO conventions on the protection of cultural property also include requirements for the preservation and safeguarding of archival material.
Legal Consequences of Violating Regulations on Archival Material
Violating archival regulations can have both administrative and criminal consequences. For example, unauthorized destruction, embezzlement, or the unauthorized release of archival material containing specially protected data may be punishable by law (§133 Criminal Code – destruction of important documents).
Summary and Outlook
Archival Material is a legally highly complex concept that ensures the permanent safeguarding, preservation and accessibility of records with evidentiary character for administration, research and the public. The comprehensive legal framework established by federal and state laws, supplemented by European requirements and international standards, ensures the protection and orderly use of this significant component of cultural memory. The legal treatment of archival material is shaped decisively by balancing public interest, data protection, copyright and personal rights.
Frequently Asked Questions
Who is legally entitled to use archival material?
Entitlement to use archival material is determined by the relevant federal or state archive laws as well as other special legislation. Public archival material is generally available to the public, unless legal protection periods or restrictions apply. Access can be restricted for reasons of data protection (e.g., personal data), copyright, or to protect trade and business secrets. Especially for personal archival material, a protection period often applies of 10 to 30 years after the death of the data subject or after the creation of the records. Compliance with the protection periods and the requirements for their reduction or extension are regulated in the relevant archive law. Research projects may be privileged under certain conditions, but usually require special declarations of commitment and specific provisions to protect personal rights.
Are all records automatically subject to archival law?
Not all records are subject to archival law per se, but are initially governed by the record-keeping and retention laws of the relevant authority or institution. Only after the official retention periods have expired and a subsequent evaluation (archival worthiness) are records taken over as archival material and subject to archival law. Private archives or records from private ownership only fall under archival law when they are expressly handed over to a public archive or are covered by law (e.g., in the case of estates of important personalities). Until then, other legal frameworks may apply, such as civil law, copyright law, or data protection law.
What protection periods apply to archival material and how are they calculated?
The protection periods for archival material primarily serve to protect the interests of third parties or the public interest. For personal archival material in Germany, protection periods of 10, 30, or 60 years are often stipulated by archive laws, based either on the date of death of the data subject or—if this is unknown—on the date the document was created. For particularly sensitive documents, such as files containing health or criminal case information, extended periods may apply. After expiry of these periods, the archival material is generally freely accessible unless other legal obstacles exist (e.g., special secrecy provisions, national interests). The exact calculation and interpretation are governed by the respective archive laws, which may also provide for a shortening of the protection period—for example, with the consent of those affected or in the context of scientific interest.
What legal requirements must be observed when publishing archival material?
Various legal regulations must be observed when publishing archival material. In addition to the protection periods stipulated by archival law, particular attention must be paid to personal rights, copyright, and data protection law. If the archival material contains personal data, publication is only permitted if the data subjects have consented or the relevant protection periods have expired. In the case of copyrighted content (e.g., photographs, unpublished works), copyright or, if applicable, publishing rights must also be observed. In many cases, the publishing archive is required to review and, if necessary, redact certain content to protect the rights of third parties. Special rules may apply for scientific publications, particularly when anonymizing personal data.
May users make copies of archival material?
Making copies (e.g., digital copies, paper copies, photographs) of archival material is generally permitted provided there are no legal restrictions such as ongoing protection periods, copyright reservations, or special usage provisions. The specific regulations are set forth by each archive in its own user regulations, which are based on statutory provisions. For material protected by copyright, making copies is generally only permitted for private or scientific use within the framework of § 60 UrhG. Publication, reproduction, and distribution of copies regularly require the consent of the rights holder or the archive.
Who is liable for violation of legal provisions in handling archival material?
In the event of statutory violations, such as publishing protected personal data or copyrighted content, the person committing the infringement is generally liable, for example, the user of the archival material. Archives, however, are required to implement appropriate review and security measures and regularly inform users proactively about applicable protection periods and legal frameworks. Furthermore, archives may also be held liable for gross infringements of duty, particularly regarding the release or publication of unlawfully protected documents. Liability may range from cease-and-desist claims and compensation demands to criminal penalties, depending on the nature and severity of the violation and the rights involved.
How is copyrighted archival material handled?
Copyrighted archival material—such as written works, photographs, maps, or artistic works—may not, as a rule, be published, reproduced, or distributed without the consent of the rights holder, provided the legal protection period (generally 70 years after the author’s death) has not expired. Archives generally clarify the rights and conditions of use in advance, where applicable negotiate usage terms with rights holders, and inform users about compliance with copyright. For scientific purposes, an exception may apply allowing limited use under certain circumstances. In case of doubt, an individual assessment must be made to avoid legal infringements.
