Legal Deposit

Introduction

UNESCO defines legal deposit as

… a statutory obligation which requires that any organization, commercial or public, and any individual producing any type of documentation in multiple copies, be obliged to deposit one or more copies with a recognized national institution.[311]

While legal deposit has its origins in censorship of the press, its purpose has evolved over time. The focus was originally on the collection of material; over time this focus has widened to include long-term preservation and access to material. According to the UNESCO guidelines on legal deposit legislation, legal deposit

… serves a clear national public policy interest by ensuring the acquisition; the recording, the preservation and the availability of a nation's published heritage.[312]

Legal deposit has a long history. France is widely credited with being the first country to introduce legal deposit in 1537. Other countries, such as Belgium, Denmark, England and Sweden have systems dating back to the seventeenth century. Many countries now rely on legal measures to build up national archives of the national recorded output. The types of legal measure differ from country to country and include parliamentary acts or laws; cabinet decrees and orders; ministerial regulations and directives; government departmental orders; regulations, circulars, rules, policy statements; library regulations and statutes and municipal ordinances. Where law covers legal deposit, it may be through a dedicated act, through copyright law or through a library-related act.

Legal deposit provisions in all countries cover print-based material. This is the only common factor in the scope of legal deposit provisions and is the current situation in the UK. While the format of material included may differ, the requirement to deposit usually extends to material available to the public whether for sale, hire or for free. The cost of deposit is usually borne by the depositor, but some countries do have provisions for the reimbursement of the costs of delivery. In Malaysia, electronic publications may be deposited on demand, but the depository must pay for the material if required by the depositor.

There is a world-wide trend of extension of legal deposit to cover all types of recorded material. While the volume of print material may not be diminishing, it is widely acknowledged that the proportion of the intellectual output of, at least, the developed countries, in electronic form is increasing rapidly. In order to ensure that important parts of the recorded heritage are not lost, many countries have or are planning to extend their legal deposit provisions to cover electronic material. It is also widely acknowledged that the identification, collection, preservation and provision of access to electronic information are extremely problematic and also costly.

The Council of Europe and EBLIDA include legal deposit in their guidelines on library legislation and policy[313]. In these guidelines, the object of legal deposit is the same as that outlined by UNESCO. Compulsory deposit is recommended, but voluntary deposit is not discouraged if it is effective.  Coverage of all types of material is recommended, including electronic material. In the case of electronic material, reasonable compensation for access to electronic material is recommended, as is co-ordination between deposit and copyright legislation.

The UNESCO guidelines on legal deposit legislation are very comprehensive and a useful source of guidance to governments considering introducing or amending legal deposit provisions. The UNESCO guidelines do not recommend voluntary schemes or compensation for depositors. The objectives of legal deposit should be stated in the law and the definition of material to be deposited should be broad, although the guidelines state that this is to "include all types of information carriers independent of the format"[314].

This chapter describes the current legal deposit arrangements in different countries. The main focus is on legislation and deposit arrangements, but where depositories are involved in significant or groundbreaking activities, these are also mentioned. The chapter concludes with a discussion of areas where the UK can benefit from the activities and experience of other countries.

Australia

Australia has legal deposit provision on both a federal and state level. The relevant federal legislation is the Copyright Act 1968[315]. Under this Act, publishers of  "any library material that is published in Australia and in which copyright subsists under this Act" must deliver a copy at their own expense to the National Library of Australia (NLA) within a month of publication.

“Library material” includes books, periodicals, newspapers, pamphlets, sheets of letterpress, sheets of music, maps, plans, charts or tables. The scope of the Australian regulations is very similar to those of the UK, that is, quite narrow. The NLA is strongly in favour of extending federal law to cover all types of publication, but there has been little progress on this as yet. In the meantime, the NLA is operating a voluntary scheme for physical format electronic publications. The NLA is extremely active in the area of digital preservation and has been developing an archive of selected Australian online publications for the last five years[316]. This selective model is being used as the basis of experiments by other deposit libraries, including the Library of Congress and the British Library. 

The scope of legal deposit provision varies between states. There are no statutory provisions in either the Northern Territory or Western Australia, but there are voluntary schemes in place. In New South Wales, the type of material to be deposited is similar to that at federal level. However, two copies of material published in New South Wales must be deposited[317]. In Queensland, South Australia and Tasmania, the scope of legal deposited is much wider and covers all sort of material, including all types of electronic material. In Victoria a wide range of material is also covered, but online material is excluded.

Canada

In Canada, the National Library Act[318] and the National Library Book Deposit Regulations 1995 govern legal deposit[319]. Publishers are obliged to send, at their own expense, two copies of their new books to the National Library of Canada within a week of publication. The term “books”

… means library matter of every kind, nature and description and includes any document, paper, record, tape or other thing published by a publisher, on or in which information is written, recorded, stored or reproduced …[320]

While the definition of book is wide, like US law, it is interpreted to only cover publications available in a physical format. However, the National Library of Canada has been a pioneer in exploring the acquisition and long-term management of online publications, running a pilot project in the mid-1990s[321]. The Library currently has voluntary deposit arrangements for some online publications.

In addition to federal legal deposit, some Canadian provinces also have legal deposit arrangements for publications.

European Union

The European Commission has not been active in this area as far as legislation is concerned. However, the Commission has funded research investigating the problems and issues associated with the deposit of electronic publications. This work has been influential: the partners involved have gained useful experience, which they are using in their own activities and useful frameworks and tools are now publicly available[322].

The report of the ELDEP study was published in 1996[323]. The report identifies classes of electronic publications and appropriate selection criteria and sampling methods; assesses technical options for storage and access; clarifies issues of preservation of electronic documents and assess approaches to bibliographic control.

The ELDEP study was followed by the Networked European Deposit Library (NEDLIB) project. The NEDLIB project started at the beginning of 1998 and finished in January 2001. The project partners were eight European national libraries, one national archive, three publishers and two information and communication technology companies. The stated project aim was to “develop a common architectural framework and basic tools for building deposit systems for electronic publications”[324]. The project dealt with the technical issues involved in extending legal deposit to electronic material. A full set of reports is now available[325].

We now consider the situation in EU Member States.

Almost all European countries have legal deposit. The scope and arrangements for deposit differs from country to country and several countries are planning or are in the process of extending legal deposit.  In terms of legislation, Norway is probably the most advanced country with legal deposit covering all types of material. The notable exception is the Netherlands, which has no legal deposit, but has successful voluntary arrangements (see below). Another country mentioned briefly here is the Republic of Ireland(see below), which has taken an innovative approach to deposit in its new legislation.

NORDINFO, the Nordic Council for Scientific Information, supported a study on the copyright issues arising from the legal deposit of online material. This study concentrated on the European and especially Nordic legal environments. According to the study report, there are various copyright questions arising from the acquisition, storage and retrieval of online material[326]. The report concludes that there is a disparity between copyright provisions and legal deposit objectives. Digital preservation requires copying; copyright exceptions should allow this. Providing access to preserved material may require licences, at least in the short time. Another point that comes up is that there may be moral rights issues arising from migration activities if they result in changes to the migrated material.

Ireland

The Republic of Ireland has recently passed new legal deposit legislation as part of the Copyright and Related Rights Act, 2000[327]. Under this legislation Irish publishers will have to deposit nine copies of a book at their own expense to various libraries in the Republic and also the British Library within a month of publication. Publishers are also required to deposit up to a further four copies with four UK legal deposit libraries on request. The definition of the term “book” looks as if it only refers to printed material

… every part or division of a book, pamphlet, sheet of letterpress, sheet of music, map, plan, chart or table separately published …[328]

However, the definition of “published” includes "making available to the public by means of an electronic retrieval system". So the scope of Irish law is confusing in that while it could include electronic material, it does not seem to include material such as sound recordings and moving images.

An interesting aspect of the new legislation is that if a book is delivered in a non-electronic form, the legislation allows depositories to request an electronic copy in addition. This presents the possibility of all electronic deposit.

The legislation is not yet in force. We understand that it will probably be amended to take into account the new EU Copyright Directive. There is also a possibility that the Irish government may undertake a fundamental review of legal deposit and its purpose.

The Netherlands

While there is no statutory deposit system in the Netherlands, there are voluntary arrangements in place for all types of material. Voluntary deposit arrangements for print material date back to 1974; in 1999 the Koninklijke Bibliotheek (KB) negotiated a voluntary deposit agreement with the publishers of electronic material[329].

While these voluntary arrangements appear to work well and the (KB) has very good relationships with publishers, it is unlikely that retaining the voluntary arrangements currently in place in the UK will result in effective collection of the UK's intellectual heritage. It is well known that deposit under these arrangements is patchy. The Dutch publishing industry is quite different from that of the UK in that it is dominated by a small number of very big publishers, which makes it easier to develop close relationships to facilitate quite comprehensive collection of Dutch publications.

The KB is an acknowledged leader in the area of electronic deposit, gaining experience through its own internal activities and through leading the NEDLIB project. The KB is working with IBM in developing a storage system for its Deposit of Netherlands Electronic Publications (DNEP)[330]. The Dutch government has been supportive and has provided the KB with funding to pursue the collection of electronic material.

Norway

In the Norway, legal deposit is governed by the Legal Deposit Act of June 1989, which came into effect in 1990. The intention was that the legislation would apply to all types of document, in whatever form, now and in the future. This is done through careful wording and definitions. The set of definitions used includes medium, document, publisher, producer and importer.

·        Medium – a means of storing information

·        Document – one or more identical copies of a medium, by which information is stored for subsequent reading, listening, showing, or transmission

·        Publisher – any person who at his own expense produces or arranges for the production of a document to make it available to the public

·        Producer – an person who produces copies of a document for a publisher

·        Importer – any person who at his own expense brings into the country documents published abroad in order to make them generally available

By defining medium as a means of storing information and listing the uses of a document, the definitions are meant to be flexible enough to accommodate all types of information.

While in theory, the legislation allows for the collection of all types on material, in practice collection of electronic material is still at an experimental stage. Norway, along with the other Nordic countries (Denmark, Finland, Iceland and Sweden) is leading the world in the automated collection of Web-based material[331].

New Zealand

Under the National Library Act 1965[332], publishers must deposit up to three copies of publications with the National Library of New Zealand at their own expense within thirty days of publication. One of these copies goes to the Parliamentary Library. The legal deposit provisions cover print material and microforms. Although electronic material does not seem to be currently covered by legal deposit, the National Library's collection policy states that

… there will be a range of negotiated agreements with New Zealand publishers of electronic information resources, which may include pointing to the publisher's server during the document's commercial life, with the National Library hosting the resources after an agreed time frame[333].

The Act is currently under review. There should be a new Act by 2002, but at this point the scope of provisions is not known.

Singapore

Legal deposit in Singapore is covered under the National Library Board Act[334]. Publishers must deposit two copies of all Singaporean publications with the National Library Board at their own expense within four weeks of publication.  The scope of legal deposit is wide and seems to cover most types of documentary material, but seems to exclude online material[335].

South Africa

South Africa has wide-ranging legal deposit provisions. The Legal Deposit Act, 1997[336] is one of the few pieces of legislation that actually sets out the purpose of legal deposit.

To provide for the preservation of the national documentary heritage through legal deposit of published documents; to ensure the preservation and cataloguing of, and access to, published documents emanating from, or adapted for, South Africa; to provide for access to government information; to provide a Legal Deposit Committee; and to provide for matters connected therewith.

Up to five copies of published documents are to be deposited, at the publisher's own expense, with designated institutions within two weeks of publication. The legislation sets out the responsibilities of the legal depositories.

Another significant feature of the South African legislation is the definition of various terms. The definitions of terms such as “document” and “publication” are worded in such a way that all types of documentary material available both now and in the future are included. The definition of a “document” is

… any object which is intended to store or convey information in textual, graphic, visual, auditory, or other intelligible format through any medium …

The definition for “published” is

… produced to be generally available in multiple copies of locations to-

(a)   any member of the public, whether through purchase, hire or loan, subscription, subscription, licence or free distribution; or

(b)   the members of an association or a society, the membership of which is open to any qualifying member of the public …

While South African legislation would allow the deposit libraries to collect all sorts of material, in practice not all types of material are collected. This especially applies to online material. Our contacts in South Africa[337] tell us that the Act will not be implemented in terms of non-print material until the UK passes its own legislation and South Africa can then learn from UK experience in the practicalities.

USA

The US Copyright Act of 1976 governs legal deposit in the United States[338]. All works enjoying copyright protection are subject to "mandatory deposit" provisions of the Act. This requires deposit at the United States Copyright Office within three months of publication. Generally two copies are deposited. The deposited material is then available to the Library of Congress.

The scope of US deposit legislation in terms of the types of publication to be deposited is not entirely clear.   The US Copyright Office states that

All works under copyright protection that are published in the United States are subject to the mandatory deposit provision of the copyright law.[339]

The definition of the term “publication” in the Copyright Act is the cause of uncertainty over the scope of the Act.

''Publication'' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.[340]

The phrase "distribution of copies" implies that material that is distributed on discrete physical carriers is covered, but there is a question mark over whether online material is also covered. The Copyright Office has listed requirements for deposit of material and this only covers printed textual matter, photographs, microforms, motion pictures, phonorecords, musical compositions and machine-readable copies. Formats include diskette and optical media[341].

In practice, only material on physical carriers is collected. However, the Library of Congress is now experimenting with the collection of Web-based material [342]. This work has been encouraged by a recent report on a digital strategy for the Library of Congress[343]. Extra funding from Congress has supported the Library's work in this area.

Conclusions

Legal deposit in the UK is currently limited to print material only, with voluntary schemes for non-print material. The current voluntary scheme for microform and electronic material in the UK seems to be highly regarded as it has been recommended as a model by the Conference of European National Librarians and the Federation of European Publishers to other European countries as an interim measure while they work toward extension of legislation [344].

Extension of legal deposit legislation to non-print material in the UK has been expected for some time. As far as electronic publications are concerned, the British Library is very much aware of developments world-wide and is preparing for the deposit of electronic material by procuring a digital library system, running experiments and collaborating with leading players in the area. In any case, even the leading players are at an early stage in terms of practical implementation of deposit of electronic material.

The area where the UK government can benefit from the experience of other countries is in the drafting of legislation. Some countries, such as Denmark and Sweden, which have only recently amended their legislation, have to repeat the process to take technological developments into account. The UK can avoid this by looking at examples of legislation, which is sufficiently flexible that it can accommodate these developments. The definition of terms is likely to be the key to the drafting of "future-proof" legislation. Norwegian and South African legislation may be useful here.

It is well known that there has been a tension between publishers and deposit libraries throughout the long history of legal deposit in the UK. Current legislation does not set out the purpose of legal deposit explicitly. While the deposit libraries see the purpose of legal deposit as the preservation of material for current and future access, publishers are understandably pointing to the fact that the provision of access is not included in the legislation. The tension is heightened by the potential of networking of electronic publications, with publishers wishing to restrict access as much as possible. While access arrangements are probably best dealt with by negotiation between libraries and publishers, the UK government should consider making the purpose of legal deposit explicit through the legislation. This is recommended by the UNESCO guidelines on legal deposit. Since the government is likely to introduce new legislation rather than amending the current law, it also may want to consider carrying out a thorough review of the implementation of the law, for example the prescribed depositories and how many copies should be deposited. The advantage would be that it might ease tensions between the different players. However, the danger is that it will prove to be so contentious that it would significantly delay the extension of legal deposit and result in the loss of important material.

Another area that should be considered is the potential for clashes between legal deposit and other laws. The NORDINFO report  cited earlier identified providing for copying for preservation. Current UK copyright law does include provision for copying for preservation purposes, but there is some debate as to whether this covers the copying activities required to facilitate preservation of electronic material. Data protection is another potential area of conflict in the provision of access to electronic material because controlling access may involve the collection of personal data and monitoring of use of material. Data protection requirements will have to be taking into account when setting up electronic systems.

Finally, there is the issue of the cost of extending the coverage of legal deposit in the UK. Experience in other countries and relevant research and development work is indicating acquiring and preserving electronic material is going to be much more expensive than for more traditional formats. For the foreseeable future, anyway, the volume of material in traditional formats that is eligible for legal deposit is unlikely to diminish. So extending legal deposit will require additional funding to support additional responsibilities on the part of the legal depositories. The parties involved in legal deposit should be considering where this funding will come from. There is an increasing trend towards co-operation and collaboration across different information sectors, through initiatives such as the BL/HE Task Force, the proposed Digital Preservation Coalition and the new Research Libraries Strategy Group chaired by Sir Brian Follett. The legal deposit collections form an important part of the distributed national collection and financial support of these collections now needs to be considered on this level.

References