Staff Papers

Legal Deposit, Electronic Publications and Digital Archiving
The National Library of Australia's Experience

August 2002

A paper presented by Pam Gatenby, Assistant Director-General, Collections Management Division, National Library of Australia, at the National Libraries Section session on Legal Deposit and Copyright laws, at the 68th IFLA General Conference and Council, Glasgow.


In my talk I will provide:

  • an overview of the National Library of Australia’s involvement in collecting publications in electronic form;
  • an outline the legal deposit and copyright situation currently prevailing in Australia; and
  • highlight our key requirements for revised legal deposit legislation.

The focus of the paper is on online electronic publications.

Background

The National library of Australia has been collecting significant Australian online publications since 1996 when the PANDORA project was launched.

We have been doing this on a selective basis, without the support of legal deposit legislation but with the permission of the publishers concerned. We have been collecting physical format electronic publications for many years under the same circumstances.

Legal deposit legislation at the Commonwealth level in Australia does not yet extend to publications in electronic form or to audio-visual materials but a process is now underway to attempt to rectify this situation.

The practical experience that the National Library has gained with collecting, and making accessible publications in electronic form will strongly influence the shape of revised legislation when it eventuates.

Collecting online publications

Collecting online publications is now a mainstream collection development activity at the National Library, carried out by a team of five staff located in the Technical Services area. Harvesting and archive management software were developed in-house to support the activity.

The Library’s Online Collection currently includes around 2,500 titles. These titles comprise single documents, parts of web sites and whole websites. They include a range of file types and can be static or interactive. About one quarter of the titles are regathered on a regular basis. Publications that have a print equivalent are not currently collected because of resource limitations but we intend to start doing this as soon as we are able to.

The National Library is developing the Online Collection in collaboration with the Australian state libraries and with ScreenSound Australia, the National Film and Sound Archive. Selection is based on detailed guidelines, which give emphasis to publications that have research value for studying the history of Australian society.

From the outset, ongoing public access was a major objective and it has shaped our approach to building the Online Collection. For instance:

  • all titles are catalogued onto the national bibliographic database and in the Library’s own online catalogue to facilitate resource discovery;
  • all titles collected are available for use by the general public via the Library’s archive – remote access is provided to gratis titles and restricted on-site access provided to commercial titles for a period of time negotiated with the publisher; and
  • all titles collected are quality checked to ensure reliability.

Our position on access has had a strong influence on our requirements for revised legal deposit legislation.

Every title archived in the Library's Online Collection is also assigned a persistent identifier based on the internal naming and resolving scheme developed by the Library.

(We are currently giving thought to how we might link Legal Deposit to a national persistent naming service whereby publishers are assigned persistent identifiers for their resources and encouraged to use them in association with the resources.)

The legal deposit situation in Australia

The legal deposit provisions that apply to the National Library of Australia are included in the Commonwealth of Australia Copyright Act 1968 (section 201.)

The Commonwealth legal deposit provisions state that publishers must deposit one copy of any “library material” published in Australia with the National Library. The definition of “library material” in the Act effectively limits the deposit requirement to items in a printed form.

The National Library has been actively campaigning for the extension of existing legal deposit provisions to electronically networked information for several years now. It also supports the need for ScreenSound Australia - the Australian National Film and Sound Archive – to be granted national repository status for sound and moving picture materials.

In late 2001, a process to amend the Commonwealth legal deposit provisions was put in train by the government department that the Library is attached to. This is the Department of Communications, Information Technology and the Arts, know as DoCITA.

The process involves the following key steps:

  • preparation of a joint statement of requirements by the Library and ScreenSound;
  • preparation of a government position paper by DoCITA to be used for public consultation; and
  • preparation of a Regulatory Impact Statement that assesses the likely costs of the proposed legislative changes, to the government and to the publishing sector.

Ministerial approval will then be required to present a submission to government for consideration and if supported revised legislation will then need to be drafted. So far step one has been completed and step two is well advanced but it is not expected that the position paper will be released until late this year.

The cost of extending legal deposit coverage

A key consideration in this whole process is the cost to government and to the publishing sector of extending legal deposit to electronic publications.

Rational arguments about the benefits of legal deposit in safeguarding national documentary heritage in electronic form will not be sufficient to persuade politicians of its necessity. Instead, they will need to be convinced that revised legislation will not pose a financial burden on publishers and that the national repositories will be able to absorb any additional costs resulting from expanded coverage of legislation.

This poses a dilemma for the Library as we believe that the significant and increasing costs associated with carrying out our role in the digital age should be recognized by government However, in the interest of achieving revision to the legal deposit provisions our position is that we will manage the costs by:

  • being selective in what we collect;
  • by collaborating with other collecting agencies; and
  • by continuing to find more cost-efficient ways of operating.

In order to manage the costs of collecting, archiving and providing on-going access to online publications we have developed a costing model based on the Library’s approved costing methodology. This has revealed that we are currently spending just over $1M per annum on collecting and managing online publications.

While there is still a long, bureaucratic road to tread in changing our legal deposit legislation, we remain optimistic of success.

One reason for our optimism is that through our experience to date with collecting and archiving online publications we have gained some understanding of the issues that concern publishers and have put in place practices and technical infrastructure to address these. These concerns will be picked up in the revision of the legal deposit provisions.

Why do we want legal deposit to be extended?

Even though we have so far been able to develop a respectable research collection of online publications without the support of legal deposit, the Library considers it is essential to advocate the extension of legal deposit provisions to this form of publishing. The main reasons are that:

  • the basic principles and objectives that underpin traditional legal deposit schemes apply equally to publications in electronic form; and
  • it would provide a legal underpinning to our collecting role and enable us to collect online publications without seeking prior approval from the publisher.

Major benefits that would result from applying legal deposit to online publications would be that more resources of national significance would be saved, known about and available for use into the future; and more cost-efficient and effective work procedures would be possible for both publishers and the Library.

The Copyright situation in Australia

To apply legal deposit effectively to online publications a copyright regime that permits deposit libraries to copy the publications for archiving and preservation and to provide a reasonable level of public access to them, is necessary.

Following a widely debated review process that began in 1997, the Commonwealth of Australia Copyright Act 1968 was amended by the Digital Agenda Act, which came into operation on 4 March 2001.

Some of the main features of the Digital Agenda Act amendments are as outlined here:

It provides:

  • a “broad-based, technology neutral” right of communication to the public;
  • sanctions against the circumvention of technological protection measures; and
  • the extension into the digital environment of special exceptions for libraries and educational institutions that exist for use of print publications

The exceptions that have particular relevance to legal deposit and electronic publications are those that give collecting institutions the right to:

  • copy a reasonable portion of a work in their collection and supply it to a user in response to a request;

(This right is subject to certain requirements. For instance, the copy must be for research or study; it can be provided in print or electronic form but any interim electronic reproductions created by the library must be destroyed.)

  • copy and supply more than a reasonable portion of a work in their collection, to another library (also subject to certain requirements;)

(The same requirements as above apply plus the library officer supplying the work must be satisfied that the work cannot be obtained in an electronic form within a reasonable time at an ordinary commercial price.)

  • copy and communicate for replacement purposes published material held in their collection that has deteriorated or been damaged, lost or stolen; and
  • make published works obtained in an electronic form available on computers within the library premises (printing only is permitted).

While Australian libraries generally consider the Digital Agenda Act reasonable in terms of access to purchased electronic resources, as it stands it does not permit the National Library to copy a whole work in electronic form for inclusion in its deposit collection. Nor would it permit the Library to provide general public access to these titles.

Requirements for amended legal deposit provisions

Taking into account the copyright context in Australia and our experience to date with collecting and archiving online resources, the National Library and ScreenSound have identified some basic, key requirements that we consider must be accommodated by legal deposit provisions that extend to electronic resources. These need to be incorporated without jeopardizing current provisions, which work well for print materials, and in a way that makes compliance easy for publishers.

With regard to collecting, we require the right to:

  • be selective in collecting publications in electronic form;
  • request notification of the publication of electronic resources (fixed format and online;
  • request publishers to deposit fixed form publications if they are selected for acquisition - we do not require unsolicited registration or deposit of fixed format or online title; and
  • copy online and fixed form publications for access and preservation purposes.

An exception to copyright would be necessary to allow us to copy whole works, and to comply with this exception deposit institutions would be required to notify the publisher that their work had been selected on Legal Deposit.

With regard to access, in general terms we require the right to provide reasonable public access to electronic resources without jeopardizing the economic interests of publishers in commercial titles. In practice, we want to be able to:

  • provide on-site access to fixed form publications in accordance with existing copyright exceptions;
  • provide unrestricted, networked access to the general public to free online publications; and
  • provide on-site only access to restricted (mainly commercial) online titles for a period negotiated with individual publishers.

In return for these rights, the deposit institutions would:

  • attach copyright and legal deposit notices to resources that are collected and archived.

In order to ensure the support of commercial publishers, the Library has agreed to accept copyright exceptions for use of commercial online publications that are slightly stricter than the exceptions that currently apply for electronic materials acquired through purchase or license. For instance, under current copyright law, a library can provide researchers with 10% of the words of a work, or an article from a periodical publication, either onsite or offsite by e-mail. This exception would not apply to commercial works acquired for legal deposit purposes. A copy could only be provided if the Library was satisfied that the requested material could not otherwise be provided within a reasonable time at an ordinary commercial price.

When it comes to implementation of the revised legislation, it is intended that the deposit institutions will develop standard agreements with publishers in order to provide practical guidelines for compliance and to build in flexibility. The Library has already drafted a Code of Practice in collaboration with the Australian Publishers Association. It will be used as the basis for further negotiations with publishers once public consultation on extending legal deposit commences and we see it as being instrumental in gaining support from the more mainstream commercial publishers by allowing them some say in how legal deposit will apply.

Conclusion

There are many complex issues that national libraries must confront in undertaking extension of their legal deposit legislation to electronic resources and in implementation of the revised legislation. Several national libraries are now at a similar stage in their efforts to accomplish change so the opportunity exists to work together more to share experiences, ideas and solutions. The topic of legal deposit and electronic publications is on the work plan of the Digital Issues Group set up by the Conference of Directors of National Libraries. I am a member of this group and I have been assigned the task of surveying current developments and implementation models among national libraries. When I have completed the task later this year a report will be made available through the Working Groups section of the Library’s PADI subject gateway (http://www.nla.gov.au/padi). I hope this might act as a catalyst for greater sharing of information by national libraries and I will be encouraging the libraries concerned to keep the information in the report up-to date.

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