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JILT 1997 (3) - Charles Oppenheim

The Legal Deposit of Non-Print Publications

Charles Oppenheim
de Montfort University
charles@dmu.ac.uk

Contents
1. Introduction
2. Comments on individual paragraphs
3. Other points

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This is a Commentary published on 31 October 1997.

Citation: Oppenheim C, 'The Legal Deposit of Non-Print Publications', Commentary, 1997 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/legdep/97_3opp/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_3/oppenheim/>


1. Introduction

In the UK, the legal deposit law requires British publishers by law to deposit one (or more) copies of every printed publication produced by that publisher free of charge with one or more of so-called depository libraries, of which the most important is the British Library itself. Increasingly, however, material is no longer produced in print form, but is only available in microform, in machine readable form, or else is available in several forms in parallel. There has been pressure in the UK on the British Government, led by the British Library, to extend legal deposit to non print materials. Such a change has many implications. There are implications of the financial and technical resources needed to maintain, refresh and read such machine readable data. Selection policies need to be developed, especially about peripheral material such as that appearing on bulletin boards. Questions of who would be allowed access to such a national archive need to be addressed as well. For example, could people gain access from a remote terminal, or would they have to visit the national archive? In February, 1997, the Department of National Heritage, as it then was, together with other interested Government Departments, issued a Consultation Paper entitled Legal Deposit of Publications [1]. The Paper, 65 pages long, received wide publicity in the media in the UK. Alas, the media interest was primarily on the question of whether the records and the videos of The Spice Girls [2] would be retained in legal deposit for all time.

The principles of legal deposit are well established but have perhaps a surprising provenance. It began as a private arrangement, first mooted in 1598 but only concluded between Oxford University and the book trade in 1610. The UK was not the first country to institute such arrangements; the famous library in Alexandria was supplied with free copies of manuscripts brought in by foreign vessels and which were not allowed to dock except by this donation system, and more recently, a 1537 French law did not permit the publication of a book unless a copy was deposited in the Royal Library. In the UK, legal deposit was extended to Cambridge University and the Royal Library by statute in 1662, and was confirmed and extended by statutes in 1710 and 1801. At the beginning of the nineteenth century, eleven libraries in the then United Kingdom were entitled to free books; the number has reduced somewhat since to The British Library, the National Library of Scotland, the National Library of Wales, Trinity College Dublin, and the two University libraries. The history of the system of UK legal deposit is admirably described in [3]. In this book, the author confirms that for more than 150 years, legal deposit has been accepted as uncontroversial; so why suddenly a Consultation Paper in 1997?

It is first worth noting what the current principles are. Every UK publisher of any publication (the word is used in its intuitive sense of a printed item that is intended to be widely distributed, typically at a price) is legally required to offer a free copy of the item to the British Library, and is also obliged to respond if any of the other legal deposit libraries demands a free copy. It is a criminal offence to refuse, although it must be said that many decades have passed since the last prosecution. No doubt, some publishers (particularly small ones who may be unaware of the law) fail to supply the required copies, but the consensus seems to be that the system works reasonably efficiently and that the vast majority of items that should be offered are indeed offered. Whilst there is no question that legal deposit imposes a certain financial (loss of profit) and administrative burden on publishers, there is a counter argument that after giving something in legal deposit, the publisher obtains an entry for the item in the British National Bibliography, the standard reference work for major libraries, and therefore the publisher is getting significant free advertising in the library community.

So, if legal deposit is working smoothly, why is it necessary to have a discussion document? The reason is pressure from the British Library. For some years now, the British Library, the prime custodian of legal deposit materials, has been drawing the Department of National Heritage's [4] attention to the need to extend legal deposit to electronic and other non print materials. It is rightly concerned that an entire generation of publications that are only available in microform, or in electronic form (whether so-called 'hand-held', such as floppy discs or CD-ROM, or other more dynamic forms, such as online databases, real-time financial information systems or Internet materials) are being produced and consumed, but there is no depository for them. It therefore lobbied the department of national heritage that there was a need to update the law controlling legal deposit to extend it to non print materials. The importance of extending legal deposit to non print materials cannot be over-estimated, and if anything, the British Library could be accused of being somewhat timid in its approaches to DNH; much material has already been lost, and the matter must be considered one of considerable urgency. The DNH Consultation Paper is the result of the British Library's lobbying.

In many ways, it is a welcome Consultation Paper. It is heartening to see that the basic principles behind legal deposit are confirmed as being desirable. However, in many regards, the Consultation Paper is weak, because it ducks issues or their implications. Too often, the Consultation Paper does not consider an issue, or seems to marginalise its importance. One can only hope that this is not a reflection of a policy fixed, and that issues other than those raised directly in the Paper as questions can be considered.

The Consultation Paper raises a large number of questions for consideration. In this article, I have concentrated on the more important questions raised in the Consultation Paper [5].

2. Comments on individual paragraphs

The Consultation Paper invites a consideration of a fundamental change of the current legal deposit arrangements from compulsory to voluntary. As is repeatedly pointed out in the Paper, the current system works and works well, and there seems little point in tampering with the system if it is working smoothly. In practice, the burden on publishers is not great as relatively few legal deposit libraries exercise their right to demand copies from publishers. There therefore seems to be no good reason to change the current statutory requirement. In the Paper, the Government frequently refers to constraints on public resources. There is a clear statement that there will be no extra resources for the deposit of non print materials. Whilst a certain degree of cost savings can be achieved by means of co-operation between the legal deposit libraries, the lack of extra resources places particular problems on the libraries. It seems reasonable that if public resources are not to be released to assist the libraries in collecting non print materials, then the use of information technology, and in particular networking, must be permitted so that the libraries are able to fulfil their functions without the public having to travel long distances to read materials. In other words, the Government cannot have it both ways. If it wants legal deposit to be extended to non print, and if it wants to cap resources and increase co-operation, then it must permit networking of deposit materials between the different deposit libraries.

The paper notes that no single institution can hold all legal deposit information, but is curiously reluctant to draw the logical conclusion, that is that it would neither be necessary nor necessarily desirable to confine legal deposit of non print materials to the current group of legal deposit libraries. There are many archives of non print material already in existence, see for example, the ESRC Data Archive at Essex University and the many archives associated with the Arts and Humanities Data Service. Curiously, the paper makes no reference to these centres of expertise in collecting non print materials, and provides no discussion of, or recommendations regarding, what the ideal number of depositories should be and what the relationships between them should be. There is no good reason to confine the list of depositories. I totally agree with the Consultation paper's suggestion that the Secretary of State needs professional advice on these matters, and suggest that the Library and Information Commission [6], or a special sub committee thereof, would be the most appropriate advisory body. In my opinion, one of the most important weaknesses of this Consultation Paper is its failure to consider extending the range of potential deposit libraries.

The Consultation Paper suggests that there should be civil penalties rather than criminal penalties for failure to comply with legal deposit requirement; this suggestion is bizarre, and the reasoning behind it is not explained. It is not made clear what the civil penalties might be. In any case, the Paper makes clear that criminal sanctions have hardly ever been invoked, but presumably they are useful as a deterrent. The system seems to work fine, so why bother to change it?

The Consultation Paper considers the issues involved in permitting the legal deposit libraries to dispose of non print and print materials that they do not want. Whilst in principle it seems sensible to allow the deposit libraries to dispose of such unwanted materials, there is always a risk that such disposal might affect the publisher's current market and/or will delete potentially valuable material. There should certainly be an embargo on disposal whilst the material is still in print (or the equivalent to 'in print' for non print materials), and in addition, disposal should be subject to review by an independent advisory committee, with a majority of members not employees of the deposit libraries, and who shall have the right to veto disposals that they feel are not in the public interest.

Another issue the Paper addresses is the legal deposit of materials that are published in very small quantities and at high price [7]; requiring legal deposit, and subsequent access by users, could damage the market for these products. At present, voluntary arrangements to restrict public access to these materials work quite satisfactorily for material of high commercial sensitivity or value, and there seems no good reason to change such voluntary arrangements into statutory powers, something that the Consultation Paper considers. In any case, it would be impossible to build into law the terminology required to define such materials. I cannot conceive of many circumstances where the placing of material on deposit significantly affects the publisher's market, and so each case would have to be considered individually and with care. The Library and Information Commission could have a role in advising Government on such individual cases. However, I do not agree with the idea of routinely delaying deposit for a time to help the publisher. Such an arrangement should only be agreed under exceptional circumstances.

The Consultation Paper also raises the issue of confidential material under legal deposit. It is difficult to see how confidential information could be involved, as the material in question is only that which is published and is available to the public as of right by payment of a fee or for free; confidential information would be unpublished and therefore is not subject to legal deposit. If a publisher is foolish enough to place confidential information in a publication, by definition that information is no longer confidential!

The greatest weakness of the Consultation Paper is the heavy emphasis on microform and CD-ROM, and the relative lack of emphasis on the Internet, online databases, real time information, data archives stored on mainframe and supercomputers, audiotext and videotext services, etc. One must ask why these were not given the priority they deserve? The volume of data available in microform and on CD-ROM is minute compared to the volume in the other electronic formats; there are strong arguments that microform and CD-ROM are mature technologies and that the volume of data in these formats will, in the future, remain static or may decline, whilst everyone predicts a massive growth in the other forms of electronic information. So whilst it is important to define CD-ROM, it is even more important to define the other forms and the ground rules that apply to them. It frankly beggars belief that the Government chose to duck the larger, faster growing, if more ephemeral non print materials, and their myopic view is in sharp contrast to the alleged commitment to the Information Society and the Superhighway proclaimed by many Ministers and several Departments of State both before and since the General Election over many years. A good example is the Government.Direct initiative, which proposes a massive increase in the amount of Government created information given to citizens in machine readable form. Government information, whether rules, regulations, White Papers, statistics, etc. are a key national resource, and if only available in machine readable form, and if not archived, will be lost to future generations of scholars. DNH's failure to address this matter means it is out of line with Government policy, as well as lacking common sense. The DNH seems to have simply ducked out of the question of Internet, online, data archive, real time, videotext and audiotext data. That this type of information raises difficult issues is no excuse; this is by far the most important area of non print publication, and it is shameful that DNH has avoided the question. The implications, too, for depository libraries for collecting and maintaining such materials are enormous. Why, for example, was nothing published in the Consultation Paper regarding the possible costs of maintaining such collections? In short, it is not good enough to say, as the Consultation Paper does, that 'at some stage' legal deposit might be extended to what are described as 'on-line' publications. [8] Extension of legal deposit to online is already overdue. The issues are difficult [9], but were considered in some detail in the British Library's submission to DNH. It is difficult to square the failure to address these issues with the Government's stated commitment to developing an information society.

The paper considers whether the deposit libraries should have the right to make copies for preservation purposes. They already do this with print materials. Clearly legal deposit repositories must be given the right to allow for preservation appropriate to the media of the material deposited. Depositories must have the right to make back up copies, to refresh materials, and to transfer them should technological changes demand this. The depository libraries should be given the explicit right to do this when circumstances demand it, and in my view, no constraints should be placed on their freedom to do so.

The Consultation Paper looks at the copyright implications of offering non print materials to legal deposit library patrons. Whilst in theory it is an infringement to view on screen, as a transient copy is created on the RAM of the PC that is being viewed, in practice few copyright owners seem at present to be bothered by this, and indeed a recent Working Party set up by the Publishers' Association and JISC agreed that such transient copying for the purpose of viewing would never be considered infringement [10]. Unfortunately, as the law is now worded, it is strictly infringement and there are therefore good reasons to change the law so that the making of transient copies made solely for the purposes of making the machine readable data perceptible to the reader should never be infringement. This should apply not just to legal deposit libraries, but to everyone, and is an issue that awaits further discussions in the European Union on exceptions to copyright resulting from the 1996 WIPO Diplomatic Conference. The Government states it is not considering making changes to copyright law [11]; this is presumably because it is awaiting changes imposed by EU Directives that are forthcoming. There are therefore ample opportunities in the future for the Government to update copyright law if it so wishes.

3. Other points

The Paper does not consider international deposit arrangements for fast changing data, such as WWW pages, online databases and real time information. Because such data in practice known no boundaries, and it is difficult to identify place of publication, there is a need for international arrangements to be set up. This is not a new idea; under patent law, the idea, for example, of international depositories for biological materials is well established, and is regulated by WIPO. The UK could usefully take a lead in WIPO in recommending a similar arrangement for online and similar materials.

Footnotes

[1] Department of National Heritage, Legal Deposit of Publications: A Consultation Paper, February 1997.

[2] A well-known best selling pop group at the time this article was written, but potentially forgotten by the time it is read.

[3] J. Feather, Publishing, piracy and politics, Mansell Publishing, 1994.

[4] The British Library is answerable to the Department of National Heritage for its activities.

[5] Copies of the Paper can be obtained free of charge from DNH. The Paper is not available on the Web. It has no ISBN, only a curious reference number DNHJ0198NJ.

[6] This is the body that advises DNH on library and information policy matters.

[7] The Chadwyck Healy poetry database on CD-ROM, or high priced printed or online market research reports spring to mind as examples.

[8] The term 'on-line' was replaced by information professionals by 'online' 20 years ago, and it is alarming to see the DNH continuing to use the archaic spelling - a minor point perhaps, but symptomatic.

[9] For example, it is often difficult to know 'where' a particular online or Internet item was published, and therefore whether it is appropriate, let alone legally permitted, for a UK legal deposit library to demand a copy. It is also difficult to know what exactly an online publication is when it is changing second by second, such as a real time financial information service; snapshots seem the only solution, but the issues of how often the snapshots are taken are not easy to answer. There is the problem of having to constantly refresh the data to avoid degradation, and the obsolescence of the technology on which the data is recorded. Finally, there is the sheer volume of data in these forms, which have the potential to overwhelm any deposit library. The problems associated with the legal deposit of online materials are the subject of an excellent report by Electronic Publishing Services, 'The Legal Deposit of Online Databases', British Library Research and Development Report 6244, 1996.

[10] The JISC/PA report in question can be found at: http://www.ukoln.ac.uk/services/elib/papers/pa/

[11] This was the Conservative Government; the new Government has not confirmed this view; it is planning a Statutory instrument for implementation in January 1998 to ensure UK copyright law conforms to the EC Directive on Databases. According to The Times, 11 October 1997, p. 1, a forthcoming Library and Information Commission Report will recommend that heritage collections of rare books, manuscripts, paintings and artefacts should be turned into digital records and stored for posterity, with users able to access the records. It is not clear from this newspaper report whether legal deposit of digital materials is covered by the recommendation, or whether the new Labour government will respond positively to the recommendation.

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