Legal
Deposit of Publications : A Consultation Paper
1. Introduction
1.1 The Library Association is the professional
association for librarians and information managers. As such it represents over 25,000
members and a broad range of professional opinion. Amongst the purposes and powers of the
Association set out in its Royal Charter are:
- To scrutinise any legislation affecting the provision of
library and information services and to promote such further legislation as may be
considered necessary to this end.
- To promote and encourage the maintenance of adequate and
appropriate provision of library and information services of various kinds throughout the
United Kingdom, the Channel Islands and the Isle of Man.
It is from this standpoint that the Association is
responding to the consultation paper on legal deposit of publications.
1.2 The Association attaches a high value to the
archive of the nation’s published output as a cultural, economic and research
resource. The current legislation for deposit in the archive has been rendered outdated by
the diversification of publishing media and advances in publishing technology. Thus:
- The legislation no longer provides the basis for a
comprehensive archive. An increasing proportion of the nation’s published output will
be lost to the archive if the emergent publishing formats and technologies are not
embraced in new legislation.
- The legislation no longer provides a comprehensive
specification of rights and duties in relation to the archive. This lack inhibits
collection, preservation and use.
Indeed the comprehensiveness of the national archive has
always been compromised by the omission from the legislation of reference to such
long-standing non-print media as film, sound recordings and broadcasts.
1.3 The Association firmly believes that new
legislation is required. The guiding aims for such legislation should be:
- to secure the comprehensiveness of the archive of the
nation’s published output, irrespective of present and future developments in
publication formats and technologies
- to secure the preservation of the archive of the
nation’s published output
- to secure access to the archive of the nation’s
published output
- to secure a comprehensive framework of rights and
obligations for publishers as providers of material for the national archive; for
librarians as managers of the national archive; and for current and future users of the
archive
1.4 Whatever new arrangements are made, the British
Library should retain ultimate responsibility for, and overall co-ordination of, the
archive. Recognition of the particular roles of the National Libraries of Scotland and
Wales as legal deposit libraries should inform all aspects of any new legislation. Whether
or not a legal deposit library should be established for Northern Ireland should be
contingent primarily on the responses from the province.
1.5 It is timely that the current arrangements for
deposit of print publications should be re-examined in terms of their efficiency and
effectiveness, and that the costs of legal deposit to all parties should be clarified.
1.6 The Association welcomes the consultation
document as a substantial contribution to addressing these issues, and is pleased to offer
the following comments.
The numbers in brackets in the comments which follow
correspond to the paragraph numbers in the Consultation Paper
2. Issues arising from legal deposit for print
publications
2.1 Voluntary as against statutory arrangements
for deposit of print publications (2.22)
If the case for a comprehensive national archive is accepted, statutory underpinning for
collection, preservation and access must follow. Statutory provision is the guarantee of
the integrity of the national archive.
2.2 Reduction of the number of legal deposit
copies/ libraries (2.22)
There is a danger in relying on single copies of anything, as there is in concentrating an
entire archive in a single location. Security of the national archive is best served by
spreading deposit over several collections (or arranging secure back-up). This also helps
in terms of geographical access. Digitisation may have an eventual role in securing these
objectives.
2.3 Civil remedies as against criminal sanctions
(2.28)
Civil remedy is the appropriate legal level. While advocating legal underpinning for
deposit, the Association believes the system should as far as possible rest on goodwill
and a common understanding of the purposes and benefits of legal deposit, rather than the
threat of sanction. However it needs to be borne in mind that legal deposit is not the
norm for non-print publishers, and may be resisted by some if extended to cover their
publications.
2.4 The issuing of written receipts by deposit
libraries (2.29)
The key question is the extent to which this is valued by publishers. If the practice
helps to maintain goodwill, if publishers find it of value to have proof that deposit has
been made, then it should continue.
2.5 Legal powers for the disposal of material
received under legal deposit (2.30)
Again the question is the extent to which such statutory provision and safeguards would be
valued by publishers.
2.6 Statutory withholding by Legal Deposit
Libraries of access to commercially sensitive or other confidential material (2.31)
Attempting legislation to defer access to commercially sensitive or confidential material
would raise problems of defining what exactly constitutes such material. If whole
categories of material were defined as such, it would lead to what would probably be an
unnecessary degree of inhibition of access to the national archive. However, deposit with
deferred access - if it helped to reassure publishers of sensitive material of the
security of their interests - would certainly be better than no deposit at all.
3. Issues arising from the extension of legal deposit to
new publication media
3.1 Definitions of Publication and Publisher
(3.14)
These definitions will require careful consideration in relation to the media not
currently covered by legal deposit. The general principle that the legislation should
cover material made available to the public in the UK, whether or not in return for
payment, for the first time, and that the duty to deposit should lie on the person
directly responsible for such publication, is sound.
The UNESCO definition of “publication” (Lunn,
1981) seeks only to identify the exclusions, which leaves flexibility to respond to
emergence of future formats.
3.2 Power for the Secretary of State to prescribe
appropriate repositories for different categories of material (3.15)
Best use should be made of existing expertise in the collection and management of the
various media. The Association therefore endorses this proposal, with its qualification
that the Secretary of State would be “likely to require professional advice from
those responsible form the management of the repositories in question”.
3.3 Where boundaries should be drawn for each
category of material where statutory deposit is proposed, in particular in relation to
electronic publications in tangible format such as CD-ROMs (3.17)
Definitions of such publications as sound recording and film should be
re-examined to ensure their suitability for legal deposit purposes. As to publications
which contain within them other categories of publication, any unit of publication which
contains original content (i.e. content which has not been published before), in no matter
how small a proportion, should be subject to legal deposit. In some cases, depending on
the intention of the publication, the simple juxtaposition in one publication of
previously separate publications would constitute original content. Advice on criteria for
deciding which repository is the appropriate legal deposit destination for individual
publications consisting of more than one format should be sought from the repositories
collectively. The case of multi-media educational packages may need special consideration.
3.4 Proposal to establish a power to prescribe
exceptions to legal deposit, by means of subordinate legislation (3.18)
- to deal with problems of defining categories subject to
deposit
The technology is always likely to run ahead of the legislation. For the sake of
flexibility in the face of change, it would be best to leave the repositories to deal with
such problems as matters of operational policy rather than legislation
- to avoid imposing an unreasonable burden on publishers
where deposit would be likely to affect the publishers’ market
Ideally, high unit production cost and low print run should not be determinants of what is
and what is not deposited in the national archive. Consideration could be given to methods
of compensating publishers for deposit where high unit cost or low print run are judged to
be significant factors. Precise quantification of high unit cost and low print
run would be required.
- to allow for exceptions in the light of experience of
material of low archival value
The definition of low value, if it has to used, should be left to the specialist
repositories. Any such definition should not jeopardise the deposit, retention and
preservation of local publications in whatever format; likewise of what might be termed
“counter-culture” publications which lie outside normal publishing arrangements.
- to avoid duplication of material deposited in different
formats
It would not add value to the archive to duplicate identical content in different formats
per se. However, consideration could be given to permitting repositories to establish
their own hierarchies of preferred formats for deposit. These could be based, for example,
on the relative preservation qualities of different formats, or their relative search
capabilities.
3.5 Circumstances in which a power to prescribe
exceptions to legal deposit should be used (3.18)
Legal prescription of exceptions to deposit would seem to be useful only in the case where
it would reassure publishers that legal deposit is not a threat to their viability, or
that of any of their particular publications i.e. in the case of unreasonable burden.
3.6 In the case where deposit might impose an
unreasonable burden on publishers, whether the archival requirements of legal deposit
could be achieved in some other way, for example through deposit at a later date once the
market value of the item has diminished (3.18)
There are dangers and costs associated with deferred deposit. It could prove an incentive
for permanent deferment, unless there is a specified (and hence inflexible) time within
which to comply. Material may be lost if a publisher ceases trading, or a print run is
exhausted, during the period of deferment. Entry of deferred deposit material into the
system of national bibliographic control would be delayed. An alternative to deferred
deposit in the shape of some form of compensation to publishers has already been
mentioned. Cost implications may militate against this, but we reiterate our view that the
national archive is a resource worthy of investment.
3.7 Whether legislation on legal deposit should
include powers, on expert advice and subject to consultation with all interested parties,
to extend legal deposit in future to new categories of published material by means of
subordinate legislation (3.20)
As stated, the technology is always likely to run ahead of legislation. Therefore such
powers should be included, with the stated provisos.
3.8 The three options for legal deposit of
CD-ROMs and other electronic publications in discrete tangible format (3.23)
The same principles should apply as for print materials: statutory deposit, more than one
copy deposited, secure storage for back-up copies. A single repository with networked
access to other legal deposit libraries would appear to offer the most cost-effective
solution.
3.9 Whether the deposit of digital text produced
for the preparation of print publications, alongside the print publications in question,
would be both feasible and of value to the development of the national published archive
(3.26)
The Association is not in a position to comment on the feasibility of the proposal. The
proposal may have value in terms of improving access to documents and reducing long-term
storage costs. However, very firm safeguards would need to be put in place to reassure
publishers.
3.10 Whether and how legislation should at some
stage be extended to on-line publications (3.28)
The principle is clear - on-line publications are part of the nation’s published
output and ought to be included in the national archive. Certainly much work remains to be
done before that principle can be implemented. This is the area where the definitional
problems of publisher and publication are most acute, and where the costs and benefits of
deposit in relation to the nature and volume of material need further examination. The
blurring of boundaries between digital TV, cable transmission and more traditional on-line
products will complicate an already complex topic.
It is suggested that a working party be set up to deal with
what is likely to be the major outstanding legal deposit issue once the others in the
consultation document are dealt with. Provision should be made for dealing with legal
deposit of on-line material by subordinate legislation.
3.11 Options for legal deposit of sound
recordings (3.31)
The same principles should apply as for print materials and CD-ROMs: statutory deposit,
more than one copy deposited, secure storage for back-up copies. Oral history recordings
should not be overlooked. Preservation of regional and local broadcasts needs a fresh look
and regional archives may have a role in this.
3.12 Initial views in principle on whether there
might be a case for setting up statutory arrangements for archiving material broadcast by
cable and satellite (3.34)
Legal deposit should apply, but to original material only.
3.13 The options for legal deposit of film and
related materials (3.35)
The second of the two options reflects the principles we believe should apply: statutory
deposit, more than one copy deposited, secure storage for back-up copies.
3.14 Whether the archiving of supporting
materials such as stills and posters should be achieved through voluntary or statutory
means (3.36)
Such materials should be subject to legal deposit as having both inherent and
complementary archival value. Such material should include stills, posters, scripts and
publicity material
3.15 The options for legal deposit of microform
publications (3.38)
Deposit should be statutory where a publication contain original material. In view of the
occurrence in this publishing sector of instances of high unit production costs, very low
production runs and publications for which the legal deposit libraries are the main
purchasers (as referred to in the draft Compliance Cost assessment) means will need to be
found of protecting publishers from unreasonable burden. Outright purchase or part
compensation by legal deposit repositories would achieve this end.
3.16 Whether, if legal deposit is extended to new
categories of published material, legal deposit repositories should be given new statutory
powers to allow preservation and if so how these should be constrained (4.5)
The Association believes that the national archive should not only be comprehensively
collected, it must be comprehensively preserved. Legislation to allow copying to preserve
should be extended to cover all non-print formats considered in the consultation document.
Such legislation should enable the making of a back-up copy immediately on receipt of the
original. It should also enable the copying of material on to a more durable, or at a
later date a more contemporary, format. The constraints of a single access copy, and of
the access copy not anticipating the publisher’s version in its format or
enhancements should apply.
3.17 Whether legal deposit libraries should be
given clear powers to grant on-the-spot access by a single user at a time, without
infringing copyright or contractual terms, to material legally deposited (4.10)
If it is to fulfil its objectives, the national archive needs to be supported by a
comprehensive legal framework for deposit, preservation and access. It is pointless
to ensure deposit if the potential for liability inhibits access. Such powers should
certainly be given to legal deposit libraries.
3.18 What form should any changes in the law take
in order to effect this (4.10)
The Copyright, Designs and Patents Act (1988) should be amended to give legal deposit
libraries the relevant statutory exception to ensure preservation and access.
4. Comments on Costs and the draft Compliance Cost
Assessment
4.1 Costs to the repositories
It is greatly to be regretted that the Government will not be providing additional public
funds to assist the repositories with additional costs in the range £273,700 to
£755,700. It is hard to see how such costs can be met without damage to services. The
consultative document makes a cogent case in both economic and cultural terms for a
comprehensive national archive. It is an asset that is worthy of investment.
4.2 Costs to those who deposit
The burden of legal deposit should not be so great as to jeopardise the viability of
publishers or of particular publications. Microform publishers are those most obviously at
risk from unreasonable burden, but any publisher producing very small runs of high cost
material could have problems. For example, experience in the USA is that smaller film
production companies can be affected quite seriously by deposit. The US Library of
Congress assists financially in such cases. Subsidised deposit or purchase rather than
deposit offers a solution to unreasonable burden, but not without extra funds for the
repositories.
THE LIBRARY ASSOCIATION, April 1997
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