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Observations on the development of non-print legal deposit in the UK
Richard Gibby Caroline Brazier

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British Library Paper type Viewpoint Introduction Legal deposit is the statutory requirement for any individual or organisation who publishes to deposit copies of their publications with designated institutions. preserved and kept accessible for future generations.23. 362-377 q Emerald Group Publishing Limited 0024-2535 DOI 10. Puerto Rico. Copyright. who have been directly involved in the legislative process and negotiations with publishers and other stakeholders. Originality/value – This paper provides new information about the development of legal deposit in the UK and a review of the issues that have affected its progress. London. 5.emeraldinsight. almost all using a legal instrument of some sort in order to ensure the comprehensiveness of their national collections. During the last 20 years. www. It summarises the regulatory and non-regulatory steps taken by the UK legal deposit libraries to address the legitimate concerns of publishers and describes some of the practical implications of implementing legal deposit for non-print publications.htm LR 61. Legal deposit.ifla. National Libraries. Archives. Findings – The paper provides new information and a summary of key issues and outcomes. Deposit schemes for printed publications have been well established in most countries for many years.The current issue and full text archive of this journal is available at www. with explanations and some insights into the factors that have influenced them. The purpose of this paper is to provide a short account of progress and review the experience. typically the national library. UK Received 19 July 2012 Accepted 1 August 2012 Abstract Downloaded by 103. Design/methodology/approach – The paper draws upon the personal experiences of the authors. The chief executive of the British Library has written of the “danger of creating a digital black hole for future Library Review . creativity and discovery – is acquired.232. 13-18 August 2011. analysing several factors that have influenced the legislative process and helped shape the proposed regulations.5 Observations on the development of non-print legal deposit in the UK 362 Richard Gibby and Caroline Brazier British Library. Published with the kind permission of IFLA. Electronic publishing. 2012 pp. 61 No.3 At 23:01 16 December 2016 (PT) Purpose – The process of developing and implementing UK legislation for the legal deposit of electronic and other non-print publications has been lengthy and remains incomplete.1108/00242531211280487 This paper was originally presented during IFLA 2011 Annual World Library and Information Congress held in San Juan. although the Government has consulted on draft regulations for implementation in It helps to ensure that a nation’s cultural heritage – the published record of human memory. Keywords United Kingdom. developments in electronic or digital publishing and the inception of the World Wide Web have led to calls for legal deposit to be updated and extended to these new media and forms of publication.

14 March 2003. but the chief executives of all three national libraries in the UK have drawn attention to the “obligation to future generations to capture this heritage in digital form”. plan. in the longer term. newspaper. at the British Library. preserved and made available for use without unreasonably prejudicing the rights holders’ legitimate interests or conflicting with their normal commercial exploitation of the material. 2009). and educational sectors. The working party’s report in July 1998 (British Library. Every publisher of a book. pamphlet. and (4) how other legal and practical considerations have influenced preparations for actually implementing the new legislation. the National Library of Wales. The Secretary of State responded: Development of non-print legal deposit 363 . urging the swift implementation of new regulations to enable legal deposit for non-print publications: “Further delays will continue to put our nation’s memory in jeopardy as we lose more and more material to a digital black hole” (Brindley et al. social and cultural environments have all influenced the process of developing new legislation. map. as publications began to be made available on CD-ROM. and makes observations about the experience from four perspectives: (1) how the political. We intend to ensure that these benefits extend also to material published in formats other than print (Hansard Official Report. sheet of letterpress or music. and the library of Trinity College in Dublin. the publisher must also deposit up to five additional copies. The nature of this danger and the level of actual risk could perhaps be debated. only statutory deposit could secure a comprehensive national published archive. chart or table that is offered to the public in the UK must deposit a copy. which are concerned primarily with published material in print form. If requested within 12 months. to advise on the most effective means of archiving non-print materials for the nation while also minimising the administrative burden for publishers and preventing unauthorised use of deposited material. Sir Anthony said. within one month of its publication. magazine. underpin the nation’s academic. with the current arrangements initially set out in the Copyright Act 1911. research. The government held a public consultation in 1997 and the Secretary of State set up a joint working party of publisher and library representatives under the chairmanship of Sir Anthony Kenny. on presenting the report: The arrangements for legal deposit.232. Outline of legislative progress Legal deposit for printed publications has been established in the UK for over 300 years. This article outlines progress to date in updating legal deposit in the UK.23.3 At 23:01 16 December 2016 (PT) historians and writers” unless urgent action is taken to preserve web sites and other digital records “to ensure that our digital future can be a rich goldmine and not a void” (Brindley.Downloaded by 103. 1998) concluded that. work began on proposals to update the provisions for legal deposit. 401 part 363 col 528). In the 1980s and 1990s. (3) how the legislation attempts to ensure that relevant material is deposited.. Vol. for the Bodleian Library in Oxford. (2) how the statutory framework and choice of legislative route has affected its progress. the National Library of Scotland including the transmission of law publications to the Faculty of Advocates Library in Edinburgh. 2012). Cambridge University Library. economic.

such as a news feed to the computer desktop. The Legal Deposit Advisory Panel was wound up as a public body in July 2010.5 Because the Government believe it is important to plug the growing gap in the national published archive. online web sites and documents that are protected behind a barrier requiring payment. The Secretary of State accepted the report and the case for legislation. for regulations on the legal deposit of: . i.e. Media and Sport on both regulatory and non-regulatory (i. . five appointed for their knowledge and experience of publishing. and for the harvesting and archiving of materials (both web sites and documents) which. In March 2010 the Legal Deposit Advisory Panel made further recommendations. I have asked Sir Anthony Kenny to draw up [. However. most commercially published e-books. shortly afterwards. Media and Sport. It recommended that the archive should be a distributed one. registration or compliance with some other formality. content which is “pushed” or delivered to the user by e-mail or other means. and five independent members including the chair. and electronic publications. . 2009).Downloaded by 103.] However. the government consulted again. . In September 2005. selecting or displaying the data. voluntary) options for the deposit of non-print material. and . in the meantime. Thus. the government established the Legal Deposit Advisory Panel as an independent advisory non-departmental public body to advise the Secretary of State for Culture. and spelled out how they might apply to particular media such as microform. 3221. are made openly accessible on the internet. Further work would be needed to analyse legal definitions and assess the impact on businesses so. e-journals and other types of licensed publication. but created a framework within which this is to be achieved through secondary legislation. In 2009 the Legal Deposit Advisory Panel submitted recommendations to the Secretary of State for the legal deposit of publications on CD-ROM and other offline media. 17 December 1998. the six existing legal deposit libraries. This reaffirmed the earlier provisions for printed publications and gave powers to the Secretary of State to make regulations extending the deposit obligation to all forms of non-print publication in all media. but not necessarily restricted to. A new Legal Deposit Libraries Act was given royal assent on 30 October 2003 and implemented with effect from 1 February 2004. enquiry-driven data sets which require additional software or systems for searching. col 682W). except works which consist only or primarily of a sound recording or film or both. structured. . a voluntary deposit scheme for electronic publications (both off-line and online) was launched in January 2000. upon draft regulations . The panel was made up of 15 members representing a spectrum of knowledge and interests: five from the legal deposit libraries. 364 The report laid out general principles for a legal deposit system for publications in different media.] a voluntary code of practice [. the 2003 Act. including. when published.23.3 At 23:01 16 December 2016 (PT) LR 61. . does not itself bring legal deposit of non-print publications into effect.232.e. Vol. such as a railway timetable enquiries database. The government consulted widely upon these recommendations (Department for Culture. I agree with the report’s conclusion that a voluntary code will not be viable in the longer term and I believe the report makes a convincing case for moving towards legislation for the legal deposit of non-print publications on the basis of minimum burden on publishers and minimum loss of sales (Hansard Official Report. as primary legislation. film.

cautiously welcomed the consultation and the draft regulations. obtaining new legislation is clearly dependent upon a political process and legal deposit can feature lower in the list of priorities for some governments than for others. due to the economic crisis. The Legal Deposit Development of non-print legal deposit 365 . the British Library and other UK deposit libraries are anxious to ensure that regulations are implemented as quickly as possible to avoid yet more digitally published content falling into the “digital black hole”. ensuring the net impact on businesses is neutral by requiring the removal of an existing regulatory burden for every new regulatory burden added. 2010a. b). “One-in. As it is now almost ten years since the 2003 Act.1 Political context – alternatives to regulation Legal deposit is not regarded as a party political issue. for implementation during 2013. the government did not receive sufficient information to be assured that these costs would be reasonable and proportionate. undertaking comprehensive thematic reviews of all regulations affecting businesses with the aim of simplifying and removing regulations or identifying alternatives. 1. However. economic. Media and Sport. The consultation also asked for evidence about the cost burden for publishers of depositing online-published material but. Observations on the political.Downloaded by 103. One-out”.23. although remaining committed to delivering regulations for as much as possible. Thus.232. 2010) including: . It has set up the better regulation executive to help pursue a regulatory reform agenda (Better Regulation Executive. The provisions for CD-ROM and other off-line publications were largely unchanged. Public expenditure cut-backs in government departments. promoting alternatives to regulation. Media and Sport. Progress is affected by the political climate. This has meant that. The British Library. a “Red Tape Challenge”. especially during the current economic crisis in which the Coalition Government seeks to offset the potentially devastating impact of financial cut-backs by promoting new growth and encouraging new businesses to start up. The outcome of this third public consultation is not yet known. have had an impact on the rate of progress. and 15 years since the first public consultation on a proposal for new legislation. but it is believed that the government remains committed to laying regulations before parliament as soon as possible. the UK Government has demanded the examination and thorough testing of alternative models such as voluntary deposit schemes before it will even consider regulation. as other legislation or initiatives were given higher priority. compared with many other countries. it would not be able to proceed with the regulations as then drafted. The UK Government has introduced policies which aim to reduce the regulatory burden on industry wherever possible. in effect requiring the deposit libraries to collect material by harvesting it instead of obliging a publisher to deliver it. although voicing a concern about a number of points of detail. it indicated that. more of the cost burden will be borne by the deposit libraries instead of publishers. 2012a. the government issued revised draft regulations for consultation in 2012 (Department for Culture. Therefore. . those for the deposit of online publications were different in focus. b). unfortunately. social and technological contexts 1. Nevertheless. and .3 At 23:01 16 December 2016 (PT) covering all of the above (Department for Culture. However.

why statutory regulation was the only practical course of action. and the passing of primary legislation in 2003. which aims to prevent legislation remaining on the books when it is no longer necessary. A sunset clause appears counter-intuitive and inappropriate for legal deposit.3 At 23:01 16 December 2016 (PT) 366 1. 1.LR 61. This is one of the Coalition Government’s initiatives designed to promote economic growth by encouraging new business. the UK Government has also implemented several policies which directly affect the actual form and content of regulations. Thus. James Murdoch and other executives from News Corporation and .23. especially through newspapers and other reporting media. causes them to expire two years later. Downloaded by 103. unless positive action is taken to renew them. slippage of only a few days or weeks in the law making process can mean a delay of six months to when the regulations will actually come into force.5 percent of the organisations registered for VAT and PAYE as publishers in 2010 were micro-businesses (Wetherill. in order to allow businesses time to assess all new legislation at once and prepare for any changes. Evidence given to the Leveson Inquiry during recent months. and lasting until at least 31 March 2014.5 Advisory Panel devoted much of its time and effort between 2006 and 2010 to launching and monitoring voluntary deposit schemes. with a powerful voice. which has already been established for over 300 years and where the purpose is to ensure continuity of access forever. and no other date. and potentially to gather the evidence for additional provisions or new regulations. so this potentially represents a significant gap in the legal deposit archive. to use the intervening period for developing further mutual trust between the deposit libraries and publishers. it was still necessary to demonstrate through evidence why any intervention at all was needed and.232. and the appearances before committee in Parliament of Rupert Murdoch. and is designed to give start-ups and micro-businesses “breathing space” from the constant flow of new domestic statutory requirements. This requires the regulations to be reviewed after five years and. that being so. On the other hand the sunset review also presents a guaranteed second opportunity to address and resolve any shortcomings of the regulations as they are first enacted. when engaging publishers to request compliance with the regulations. on all new regulations that affect new businesses (“start-ups”) and businesses employing fewer than ten people (“micro-businesses”). As a result the draft non-print legal deposit regulations which were issued for consultation in 2012 specifically excluded start-ups and micro-businesses from several key provisions.2 Political context – government policies for regulation Through the better regulation executive. and to investigating alternative options such as incentive-based structures and self-regulation.3 Political context – influence of the publishing industry The publishing industry in the UK is well organised. and it is not yet clear how micro-businesses will be brought back into scope of the regulations after the moratorium has ended. It also raises a practical question of how the deposit libraries might reliably identify which publishers are micro-businesses and which are not. According to the Office for National Statistics. Despite Kenny’s earlier recommendations. applied to all regulations affecting businesses. 2010). The second policy has been to require that all new regulations affecting businesses are implemented with effect from either the 6 April or 1 October of any year. 83. The first of these is a “sunset clause”. The third policy has been a moratorium or freeze since 1 April 2011.

1 percent). although allegations of undue influence and impropriety are denied. 1. confirm that they have had an especially close relationship with key politicians in most parties including senior members of the government. Publishers and their representatives generally support the idea of a national repository and archive. Media and Sport. therefore.232. generating £36.6 billion gross value added (0. that it is risky to oppose or take issue with a news publisher on their demands and opinions with regard to legal deposit. the publishing sector employed 243. In 2010. processes and any potential risks to publishers’ businesses are properly understood.5 Economic context – regulatory burdens The better regulation executive also instituted a rigorous approach to assessing the impacts of legislation on business. which publications produced internationally should qualify for UK legal deposit and how much due diligence is required of the publisher or deposit library to establish their qualification.23. In 2009.4 Economic context – importance of the publishing industry The UK boasts one of the largest and most influential creative industries in the world. This has tended to give publishers a strong negotiating position and has put the deposit libraries at a potential disadvantage when discussing issues such as how to select the medium and format to be deposited and.84 percent).173 people (5.3 At 23:01 16 December 2016 (PT) News International. which party should have the ultimate right to decide.92 percent of the UK) and £2. will naturally be sensitive to anything which might affect the business interests of this important part of the economy. fully justified and proportionate. The balance of negotiating power has tended to favour individual publishers. 2011). 1.6 percent (Department for Culture.Downloaded by 103. It is certainly a truism that press comment and tabloid journalism can affect a politician’s chances of successful re-election and.63 billion in exports (3. leaving aside its importance as a driver of innovation and new creativity. and will wish to ensure that the administrative costs. All proposals for regulation must be accompanied by a full impact assessment – effectively a business case – which sets out all the direct and Development of non-print legal deposit 367 . in the absence of mutual agreement. of whatever political persuasion. Some newspaper editors and proprietors have had significant direct access to key decision-makers. Individual publishers also hold different views on. Any government.809 people (0. The creative industries overall employed 1. The publishing industry is therefore a significant contributor to the UK national economy in its own right.92 billion in exports or 10.29 billion gross value added in 2009 or 2. publishers accounted for £11. publishers are the single most important contributor to gross value added and exports. It has taken considerable effort from the deposit libraries to negotiate suitable compromises or persuade all those involved in the process of the need for solutions that are workable for all parties including the deposit libraries. politicians and the government have naturally been very sensitive to the concerns and queries raised by publishers and have been unwilling to move forward with proposals until every point has been resolved to the publishers’ satisfaction.15 percent) in the UK. for example.498. but many would prefer it to be voluntary so that individual publishers may opt in or out. Therefore. Within the creative industries. because they have only needed to raise a question and the onus has then tended to fall upon the deposit libraries to identify and propose a suitable solution. although only the third largest employer.89 percent of the whole UK economy and £8.

to set up processing operations and systems for the acquisition. relative to other nations.232. And an Anglo-American culture already dominates business. it is certainly more difficult in practice to find easy ways of identifying content published in the UK separately from content published in say the USA. Impact assessments. However. as measured by the amount of investment in national institutions and by the level of emphasis on centrally organised initiatives to safeguard the nation’s heritage. with the risk that much of this investment could be wasted if regulations are not forthcoming or if the final form of regulations is substantially different from the form assumed when the systems were developed. material published in the Scandinavian or Celtic languages. the World Wide Web and the social media in many countries. Within the UK. for businesses. the British Library invested in a pilot for receiving XML e-journals from publishers and “normalising” the metadata into a standard schema prior to ingesting them into a repository. The UK deposit libraries have been required to describe precisely how the digital content they collect will be acquired and managed securely. and the British Library in particular. 1. This may in part be because of the increasing globalisation of publishing.3 At 23:01 16 December 2016 (PT) 368 indirect costs of compliance. and the base case of no intervention. and then negotiated an outsourcing contract with an intermediary to act as the library’s agent in receiving and pre-processing deposited e-journals. Harvesting technologies and a shared technical infrastructure for preserving digital content have already been developed and implemented.LR 61. Expressions of the UK’s national culture may also be less unique and distinctive than. Australia or elsewhere. on the assumption that regulations would require publishers to deposit them. receipt and secure management of various types of digital publication in advance of regulation. for example. many Western economies. the authors of this article believe that the promotion. for example. In the application of territoriality rules for e-legal deposit. the risks. Thus.23. chaired by an independent and consisting of external experts and senior civil servants. the taxpayer and other stakeholders. and the benefits. The need to gather evidence and assess costs has involved a great deal of preparatory work testing different methods of deposit and designing and implementing processes or systems ahead of legislation. rather than a requirement.5 Downloaded by 103. and with the huge and increasing volume of content published in the English language. protection and preservation of its national culture is perhaps of less significance to the UK Government. a voluntary alternative. the new draft regulations recently issued for consultation now presume a default process in which content is harvested by the deposit libraries and publisher-initiated deposit is only an option at the publisher’s choice. it may be argued that most people are more interested in preserving the separate . with different parts of the process being carried out across the world. The experience gained through implementing voluntary deposit schemes has therefore been useful. are scrutinised and validated by a Regulatory Policy Committee. and the policy proposals they support. but it has also required quite substantial investment by the UK deposit libraries. the administrative impacts. Canada. It is therefore uncertain how many publishers will actually use this option when the legislation takes effect. Such evidence must be presented for each relevant option such as full regulation. because all share the English language.6 Social context and the importance of national culture In contrast.

the 2003 Act deliberately avoided making detailed statements about the form or content of such regulations. Therefore. nor a distinct national library for England.2 Time and effort required to make regulations First. Copyright Law. thus new regulations could be made for each category of publication. in the authors’ experience. the main goal and benefit of legal deposit. to demonstrate that the regulations will not be “[dis-]proportionate to the benefit to the Development of non-print legal deposit 369 . Canada. Communications Law or Cultural Property Laws. both the Scottish Government and Welsh Government attach great importance to recording and preserving their separate heritages. in which legal deposit is achieved as part of other legislation such as a National Library Law. than preserving a national British culture. tailored for different circumstances. Legislative routes 2. it contrasts with the legal framework in other countries such as Austria.Downloaded by 103. A full impact assessment must be carried out. Scotland and Wales are culturally distinct from England and. the 2003 Act laid down parameters for how regulations are to be made. With the benefit of hindsight. of enabling the preservation in perpetuity of the nation’s published cultural memory. however. Also. this route has perhaps not been quite so successful as first envisaged. But there is no separate national government for England. and perhaps even regional or local cultures in England. Full consultation of all relevant stakeholders must take place. 2000) which suggest that it is much more preferable for a legal deposit scheme to rest on a separate and specific legal deposit law enacted by the national legislature. at any time in the future and without the need for enacting new or revised primary legislation. both in terms of the time and effort required to make regulations and some unanticipated consequences in respect of: the risk of differences between laws in the definition of terms. 2. the British Library’s remit is for the whole of the UK.23.232. in order to assure the publishers and other stakeholders that their interests would be taken into proper consideration for any future regulations. Scottish and Irish cultures. To permit such flexibility. France or Ireland. British national culture appears to be lower in priority for the UK Government in Westminster than Scottish national culture is for the Scottish Government or Welsh national culture is for the Welsh Government. politically. 2. This is in line with the recommendations published by UNESCO (Larivie`re. This is separate from the legislation which governs copyright. and how deposited materials may be used after all intellectual property rights in them have expired. However.3 At 23:01 16 December 2016 (PT) Welsh. An advantage of the 2003 Act is that legal deposit was effectively given visibility and a mandate all of its own. is perhaps not given quite the same weight of importance in the UK that it is given in some other countries. and also from other legislation such as the British Library Act 1972. in order to avoid the risk of major changes being made via simple administrative decisions without public debate. principally the Copyright Designs and Patents Act 1988. framing the legislation around a deposit obligation for publishers when library harvesting is now seen as a more practical solution. except for setting the parameters within which they could be made.1 Standalone legal deposit legislation The UK’s primary legislation for governing legal deposit is now the 2003 Act. But its principal benefit was perceived to be its flexibility.

This is subtly different from enabling legislation which entitles a deposit library to collect the same material by “pull” methods. as primary legislation.23. deliver it to the library by so-called “push” deposit.3 At 23:01 16 December 2016 (PT) 370 2. and how other purchased. licensed or donated material may be used. 2. the UK legislation does not of itself give any automatic entitlement to the legal deposit libraries for harvesting. nor “unreasonably prejudice” publishers’ interests. Indeed both the deposit libraries and some publishers.LR 61. even though web archiving and the collection of such material was clearly discussed by all stakeholders at the time of the 2003 Act. an entirely automatic process. It led to a challenge for the government’s legal advisers. Downloaded by 103. It has also created some challenges when defining elements such as how password-protected material should be requested and delivered within an appropriate time period while also providing sufficient time for a publisher to provide access credentials. In order to assure publishers that deposited material could not be used without due regard to the legitimate commercial and other interests of rights holders. 2.4 Framing the legislation: a deposit obligation for publishers or an entitlement to collect for deposit libraries Third the 2003 Act was framed in terms of a core obligation upon publishers to deposit relevant material. which means that they are dependent upon finding an appropriate time in the parliamentary timetable. The solution has been to describe the process in terms of an obligation for the publisher to deliver material by electronic means in automated response to a request from the library. i. in practice. a slightly less specific obligation in the 2003 Act might have allowed the regulations to be drafted in terms that are more easily understood. For instance the words “publication”. and perhaps most importantly. and how they might not be consistent with definitions of the same terms in other legislation. separating out legal deposit from the other legislation that governs copyright and intellectual property has opened the door to questions about the use of certain key definitions and how they are to be applied in the different contexts. With the benefit of hindsight. in their responses to the government’s consultation in 2010. The clause . And the regulations can only be passed by affirmative resolution. even after the term of copyright has expired. in practice.5 public”. Thus. the separation of legal deposit from other general legislation covering copyright and intellectual property has allowed a distinction to be made between how legal deposit material may be used.e.5 “Perpetual copyright”? Finally. the regulatory process for legal deposit may be almost as demanding and as time-consuming as the process was for the 2003 Act itself. Thus. a vote by members in both houses of parliament. “work” or “published in the UK” (territoriality) may be given subtly different meanings within the regulations for legal deposit compared with other copyright legislation. This is perhaps a slightly clumsy description of what is. of finding a way to draft regulations that support harvesting by the deposit libraries despite a framework that is expressed in terms of an obligation for publishers to deposit. raised questions about the definition of some terms in the draft regulations.e.3 Definition of terms in different laws Second. i. the 2003 Act contains a clause which prohibits all uses of deposited material as a default.232.

otherwise. may apply forever.e.232. facilitating the development of a comprehensive and distinctive national collection of enormous value to the public. many of the fair dealing provisions that are available to UK users under copyright law for other copies of a publication will not be available to users for the legal deposit copy or copies. subject to its qualifying as a relevant UK work. The regulations would need to include a specific provision that enables wider use (including copying) of deposited material after all intellectual property rights in them have expire. e. But it is also important that the proper interests of publishers and other rights holders are properly respected and reflected in the legislation. the restricted access provisions limiting use of a work to one person at a time in each deposit library. Balancing the interests of users and rights holders Legal deposit is an extraordinary privilege. For web pages. in effect. 3. Therefore.23. It is not yet known how the government will respond to these concerns and whether any such provision will be made in the final draft regulations that are laid before parliament. It is right that the benefits of this collection should be made available as widely as possible. transferred or disposed of. Furthermore.3 At 23:01 16 December 2016 (PT) then goes on to say. the publishers of such material would incur an administrative cost in allowing access for the library’s harvester. and of greater significance in the long term. As the harvester behaves in much the same way as any other web user’s computer. will be the activities explicitly permitted by regulations. and on the deposit library’s premises. in the absence of any such provision. will continue indefinitely. typically because the web site requires users to register. The following sections describe the compromises and solutions that have been negotiated between the representatives of publishers and the deposit libraries. accessed for reading). However. prompting the British Library and other deposit libraries to raise a concern in their responses to both consultations. lent. by using only a small proportion of the web site’s bandwidth capacity – there is no real cost to publishers in allowing such material to be archived. Development of non-print legal deposit 371 . this also means that the restrictions upon access that are properly applied to legal deposit material in order to safeguard the publisher’s legitimate interests as rights holders. documents and other forms of content that are openly accessible. the draft regulations did not contain any such provision. the deposit libraries will normally collect copies via an automated harvesting process and will not need to engage with the publisher directly.Downloaded by 103. 3. in 2010 and 2012. or pay a fee before permitting access to the publication. some kind of interaction and engagement between the deposit library and publisher is necessary for other materials that are not immediately accessible to the harvester. and will be programmed with “politeness settings” to ensure that it has minimal impact on the web site –. Therefore. it is as if they too are indefinite and the publisher retains perpetual rights over the deposited copy. that the only ways in which deposited material may be used (i. a deposit library will have the legal power to copy material directly from the open web for archiving.1 Harvesting and publisher engagement Under the 2003 Act and regulations. unless the regulations contain an explicit link to other copyright and intellectual property legislation. In the two most recent consultations. copied. log in.g. or they include equivalent clauses. As these restrictions are designed to safeguard the publisher’s intellectual property rights in a work. adapted.

when compared with each library having to develop their own separate solution.232. an alternative method of delivering publications for archiving is permitted by the regulations. Naturally the size of this cost might potentially be a concern. if a publisher chooses. rather than having to discover the legislation and effect changes to systems or put new procedures in place in advance of the legislation taking effect. Therefore. shared technical infrastructure for non-print legal deposit. The risk of “piracy” is a significant issue for rights holders. harvesting should still impose the least burden for most publishers of login-protected material. This should be more cost effective in the long term for the deposit libraries too. Therefore. Finally a publisher’s obligation to provide access credentials or perhaps agree an alternative delivery method will only be triggered by a request in writing from one deposit library. and with access links for the Bodleian Library. is that their deposited material should be held and managed securely and that the risk of commercially valuable material leaking into the open market is mitigated. bilateral arrangements.23. at a very small cost. provided that it is mutually agreed between the publisher and deposit library concerned. to ensure that only relevant material is exposed for harvesting. there is no obligation for all publishers to commence depositing non-print publications as soon as the regulations take effect.LR 61. the UK legal deposit libraries have set up a single. However. This allows for a gradual implementation and reassures publishers that they will be individually notified of any requirement they must meet. even taking account of the need to supply access credentials. one for each deposit library. an important concern for publishers in depositing. To this end. As there are five UK deposit libraries who might collect and archive such material (six. and therefore an extra cost. if the Secretary of State confirms the participation of the Library of Trinity College Dublin) publishers were also concerned about the possibility of needing to set up five or six separate. 3. with the opportunity of agreeing mutually acceptable processes for depositing. the deposit libraries are already preparing alternatives. based at the British Library with additional storage nodes in the National Library of Scotland and National Library of Wales.5 Downloaded by 103. especially when digital rights technical protection measures are removed in order to facilitate long-term preservation by the deposit libraries. plus agreements with some of the third party service providers to publishers to facilitate the deposit of relevant publications on their behalf. especially commercial publishers whose business models are threatened by it. Cambridge University Library and. rather than each approaching the same publisher separately. potentially. Recognising these potential concerns. such as a secure and easy to use web upload facility.2 Security Computer technology potentially makes it very easy for a person to make and distribute multiple copies of a digital work.3 At 23:01 16 December 2016 (PT) 372 for example by providing a login and password or other access credentials. internal documents or earlier unpublished draft versions of the final publication might also be stored in the same system. the Library of Trinity College in Dublin. The government has calculated that. in 2012 the consultation document included a section describing the security arrangements already implemented or being developed . For the most recent public consultation. some publishers with content management systems might find it difficult. private. It has therefore been proposed that a single deposit library will harvest or take receipt of deposited content and then share it or copy it to the other deposit libraries.

These included a commitment to regular and independent security audits and the offer of sharing the audit reports and the deposit libraries’ responses to any issues raised with representatives from the publishing trade associations. by applying the same terms of use to all deposited non-print material. Although an informal practice for printed publications. if the deposited copy of a digital publication for which the publisher normally levies a charge or subscription were made freely accessible to any online library user. all recognise that the regulations may need interpreting for specific circumstances or that. libraries must also respect and protect the rights holders’ interests in it. in such cases. by requiring that any non-print work may only be consulted by one authorised library user at a time in each deposit library. and whether it should differentiate between publications for which the publisher normally levies a charge or subscription and publications which the publisher makes freely available online. 3. plus outline proposals for how the deposit libraries might provide suitable assurance for publishers on a sustainable basis.4 Additional temporary embargos on access An informal practice has grown up in which the UK deposit libraries have been willing under special circumstances to embargo access to certain items for a period of months. Such circumstances are rare because. However. There has been much debate about the level of restriction. The government’s final proposal aims to protect publishers’ income from advertising as well as from direct subscriptions and charges.5 Dispute resolution Finally. users will only be permitted to copy a limited amount for “fair dealing” and in analogue. within the library’s physical premises. it is now expected that this will become a feature of the regulations for non-print publications. when they are put into effect. The proposal replicates de jure the de facto physical limitations of reading a printed book.23. to avoid unnecessary court cases and legal disputes – although the option of formal proceedings remains available if necessary – the UK deposit libraries and publishing trade associations have agreed to put in place . additional questions and issues may arise which cannot be resolved through the regulations alone and which will need discussion and agreement between the publisher and deposit library concerned. The UK deposit libraries have long accepted the principle of restricting access to deposited copies of digital publications.Downloaded by 103.232. 373 3. the terms of access already provide sufficient protection for the publisher against any unreasonable harm to their income. it could harm the publisher’s sales revenue. irrespective of the basis on which the publisher offers it to the public. Therefore. printed form. in most cases. For example. embargoing access to the deposited copy for that period will ensure that there is no loss of income for the publisher. resulting in a stalemate where publications are not deposited and preserved. there is a very small number of cases in which the publisher’s business model depends upon a small number of high value sales or upon generating income over a short initial period of a few months. However. Deposit libraries may copy deposited works for preservation purposes.3 At 23:01 16 December 2016 (PT) by the deposit libraries. Development of non-print legal deposit 3. both parties may disagree. digital copying is prohibited without express permission from the publisher. At worst.3 Managing access to deposited material While striving to satisfy the public’s interest in deposited material.

LR 61. the archive could potentially be (wrongly) used as a resource for data mining and profiling individual members of the public. and the regulatory framework in each country may impose additional requirements. the UK’s defamation law is somewhat unusual in that it considers each occasion on which a digital work is viewed on screen to be a new act of publication. But these legal protections also impose certain requirements of their own and the deposit libraries will need to implement notice and takedown provisions and other procedures. initial discussions with the Information Commissioner’s Office suggest that the commissioner will not place any additional restrictions on access to the archive. The library has informed the authors that. the library was forced to halt its domain-wide harvesting activities until such time as the inspectorate’s demands could be addressed by amending the legal deposit legislation. with the explosion of self-publishing and social networking online. and a dispute resolution procedure that can include independent arbitration. there may be personal data and privacy issues which need to be addressed. which gives certain legal protections to the UK legal deposit libraries for relevant material. therefore.1 Privacy and personal data Many countries have legislation governing privacy. but others are common to several countries.23. its accuracy and how it may be used. . by providing access to a deposited work.2 Defamation At the time of writing. a deposit library is effectively republishing it every time that it is used. Therefore. This is entirely separate from legal deposit and is in many ways unconnected. In the UK.5 Downloaded by 103. Additional legal and practical considerations Legal deposit legislation is only part of a successful national archiving system. 4. This potentially means that the library is at risk. Such legislation is designed to ensure that a citizen has some measure of control over what is recorded about them. due to the inspectorate making extra demands for the current licence in 2009. the National Library of Norway is currently required to obtain a licence from the Norwegian Data Inspectorate.3 At 23:01 16 December 2016 (PT) 374 a joint committee which can advise on technical issues and questions of interpretation. But. stewardship or provision of access to digitally published material and should be taken into consideration as strategic issues potentially influencing the shape of legal deposit legislation or the approach to its implementation. but will require the deposit libraries to implement some safeguards and may ask for assurances about their policies for authorising readers.232. Thus. policies and practicalities may affect the acquisition. 4. Some issues may be unique to the UK paradigm. both of perpetuating a defamation perhaps indefinitely and without any means of limiting the period of liability. For example. any library archiving large volumes of web content is almost certain to be capturing a degree of personal information about individuals over an extended period of time. Clearly. 4. management and use of personal data. and other legal requirements. and of becoming liable for defamation claims as a (re-)publisher of the material. This peculiarity was partly addressed by the 2003 Act itself. and the collection. for marketing and other commercial or non-research purposes.

an aspiration might be the ability to exercise control over the precise file formats and technical standards in which relevant material is deposited. 4. This was mainly because. The need to deal with material which can be deposited in any format adds huge complexity and cost for the library. few people foresaw the explosion of mixed media content and the widespread inclusion of video clips and other recordings within web pages and other online content. The clear distinction that may have existed ten years ago between text. core metadata are needed for bibliographic records in order to find. In the UK the deposit libraries sought to address this separately from the legal deposit legislation itself. successful voluntary deposit schemes with other institutions were already in place for music CDs.5 Metadata A similar approach. standards or methods as being preferred for the purpose of deposit. functionally rich metadata has an intrinsic value of its own and may also be subject to separate. identify. and potentially different. Naturally. This is interpreted as legal deposit including audio-visual content that is part of a larger text. but excluding other content such as streamed music. although the UK deposit libraries readily acknowledge the need for restricting access to deposited Development of non-print legal deposit 375 . by necessitating the conversion of material. from the perspective of a legal deposit library charged with preserving material in perpetuity. specifying a limited number of formats and methods in which material must be deposited would add to a publisher’s costs of depositing. The 2003 Act excludes from legal deposit all works that consist only of “(a) a sound recording or film or both. at the time of the 2003 Act.4 Preservation issues Clearly. video clips within a journal article. It will be a significant practical challenge for the UK deposit libraries to find automated ways of determining whether a particular collection of material should be included or excluded from the legal deposit archive. and including recommendations for the removal before depositing of any technical protection measures designed to enforce digital rights. 4. An early example of such a statement of preferences for scholarly e-journals. by working together in dialogue with publishers and by setting up joint governance arrangements. cinema films and video web sites such as YouTube. However. which was perhaps not foreseen at the time of its drafting.or image-based work.Downloaded by 103.3 At 23:01 16 December 2016 (PT) 4. of leaving an issue to dialogue and informal joint governance arrangements instead of making detailed provisions within the regulations. has already been agreed with publishing representatives and is available on the British Library’s web site. e. Furthermore. in their most basic descriptive form.232. intellectual property rights from the content they describe. video recordings and film DVDs. or (b) such material and other material which is merely incidental to it”. select and obtain content.23. and might also fail to capture a sufficient representation of what today’s purchasers of the material actually receive. The choice of format for deposit should be a matter for agreement between each individual publisher and the deposit libraries although the deposit libraries may advocate certain formats. On the other hand.3 Audio-visual material Another consideration in the 2003 Act. has been recommended for the difficult question of metadata. relates to audio-visual content.or image-based publications and audio or video publications is now more blurred. However.g.

L.aspx (accessed 18 July 2012). It may aboutus/stratpolprog/legaldep/report/¼SRCH (accessed 18 July 2012). Consultation on the Draft Legal Deposit Libraries ( Non-print Publications) Regulations 2011. “We’re in danger of losing our memories”. Downloaded by 103.culture. The Observer.g.23..3 At 23:01 16 December 2016 (PT) 376 Conclusion In the UK. limited to one person at a time in each deposit library. The Times ( London).J. Media and Sport (2009).W. Report of the Working Party on Legal Deposit.LR 61. They have also sought to identify and resolve all other potential issues that might affect the successful implementation of an e-legal deposit system.J.J. “National memories and digital delays”. However. developing e-legal deposit legislation has been a slow but extensive process. when the initial public consultation on proposals for new legal deposit legislation took place. The political.M. covering a wide range of issues with detailed discussions and negotiations between the deposit libraries. (2009).bl. 25 January. the UK was amongst the first countries to be actively considering non-print legal M. Explicit reference to metadata as “relevant material” within the regulations might also make use of the metadata subject to the same restrictions that apply to use of the deposited material. Department for Culture. A.html (accessed 18 July 2012). With reference to Aesop’s fable. The 2003 Act was also one of the first pieces of legislation in the world to be developed. available at: the government has confirmed its commitment to implementing regulations in 2013 and the deposit libraries are well advanced in their preparations. available at: www.aspx (accessed 18 July 2012). 15 years ago. Department for Culture. it is debatable whether the UK experience will prove to be representative of the Tortoise or the Hare. within the library’s premises. nine years later. e. London. Department for Culture. The British Library and other deposit libraries have invested a great deal of time and effort in discussion and negotiation with stakeholders.232. (2012). in order to ensure that their interests and concerns will be properly addressed and respected. . The choice of legislative approach. 24 May. Media and Sport. available at: www. in developing a separate and stand-alone law instead of implementing non-print legal deposit as a part of the legislation governing copyright has had additional and unforeseen consequences. economic and cultural contexts have all influenced the legislative process. References they wish to ensure that basic descriptive metadata can be published online so that library users may establish what material is available in the library. publishers and a wide variety of other stakeholders. L. The experience of the last 15 years offers a number of lessons about how to approach the development of non-print legal deposit. that progress since then has been disappointingly slow and certainly the UK’s legislation for non-print legal deposit now lags behind that of many other countries. “Proposal on the collection and preservation of UK offline and microform publications and UK online publications: (available free of charge and without access restrictions)”.co. Media and Sport (2010a). library/consultations/6506.5 content as a safeguard for publishers. and Green. British Library (1998). available at: www.

14 Nos 1/2. available at: http://unesdoc. 57.pdf (accessed 18 July 2012).org/images/0012/001214/ and Tuck.pdf (accessed 18 July).M. London.pdf (accessed 18 July 2012). PGI-81lWSl23. CII-96/WS/ To purchase reprints of this article please e-mail: reprints@emeraldinsight. 1. available at: www. Department for Culture. 53-67. Department for Culture.gibby@bl. “UK business: activity. Lunn. Milne. 55-70. Larivie`re.pdf (accessed 18 July 2012). C. available at: www. “National implementations of electronic legal deposit”. Stephens. (2004). R. Corresponding author Richard Gibby can be contacted at: Or visit our web site for further details: Media and Sport (2010b). Vol.culture.23. available at: www. Department for Culture.culture.ons. Department for uk/images/research/ Creative Industries Economic Estimates. Department for Culture. available at: http://unesdoc. available at: www. (2008). size and location. J. Guidelines for Legal Deposit Legislation. 87-111. Media and Sport (2011). “The legal deposit of electronic publications”.bis.Downloaded by 103. Vol. pp. images/0010/001055/105504e.aspx (accessed 18 July). New Review of Academic Librarianship.W. Vol.3 At 23:01 16 December 2016 (PT) Department for Culture. No. available at: www. P. Media and Sport. Further reading Conference of the Directors of National Libraries Working Group (1996).html?pageSize¼50&sortBy¼none&sortDirection¼none&new query¼UKþBusiness%3AþActivityþSizeþ%26þLocation&content-type¼publication ContentTypes (accessed 18 July 2012). Alexandria. Department for Culture. Media and Sport. Draft Statutory Instruments: The Legal Deposit Libraries (Non-print Works) Regulations 2013. (accessed 18 July 2012).pdf (accessed 18 July 2012). “Reducing regulation made simple”. UNESCO. and Gibby. Alexandria.unesco. (2000).pdf (accessed 18 July 2012). and Green.unesco. R. Media and Sport. available at: www. Guidelines for Legal Deposit pp. (2010).culture. UNESCO. (1981). Draft Statutory Instruments: The Legal Deposit Libraries (Non-print Publications) Regulations 2011.emeraldinsight. available at: http://unesdoc.232. “Electronic legal deposit in the United Kingdom”. Wetherill. “Implementing e-legal deposit: a British Library perspective”. Media and Sport (2012b). “Securing digital legal deposit in the UK: the Legal Deposit Libraries Act 2003”. Development of non-print legal deposit 377 . London.ariadne. CXI-OO/WS/ available at: www. Media and Sport (2012a).uk/images/consultations/Legal_deposit_ Draft_Regulations. (2011).pdf (accessed 18 July 2012). Regulation Executive (2010). 16 No. Department for Culture. 2. London. Media and Sport. J. Consultation on the Draft Legal Deposit Libraries (Non-print Works) Regulations 2013. London. (2008). uk/ons/publications/ assets/biscore/better-regulation/docs/r/10-1155-reducing-regulation-made-simple.W. Gibby. A. 2010”. R. 22 No.

South Africa Ina Fourie University of Pretoria. Introducing Electronic Legal Deposit in the UK: A Homeric Tale. South Africa Marieta Van der Merwe University of Pretoria. 2016. Legal deposit of electronic books – a review of challenges faced by national libraries. Pretoria. [CrossRef] 4. Caroline BrazierGreat Libraries? Good Libraries? Digital Collection Development and What it Means for Our Great Research Collections 41-56. Ann MacDonald. [CrossRef] . Journal of the Korean Society for Library and Information Science 47:3. Akiko KimuraImplementing Digital Preservation Strategy: Developing content collection profiles at the British Library 21-24. Library Hi Tech 34:1. Pretoria.232. South Africa .3 At 23:01 16 December 2016 (PT) This article has been cited by: 1. Jeong-Taek Kim. 2012. [Abstract] [Full Text] [PDF] 2.23. 161-179. [CrossRef] 3. 103-109.Downloaded by 103. Ok-Nam Park. Jae-Hwang Choi. A Study on Legal Deposit Guidelines for Online Digital Materials. 87-103. Michael Day. Pretoria. South Africa Liezl Ball University of Pretoria. Pretoria. Maureen Pennock. 2013. Andrew Green. Seung-Jin Kwak. Alexandria 23:3. [CrossRef] 5. Marietjie De Beer University of Pretoria.