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Submission

National Film and Sound Archive and National Library of Australia
Submission to the Copyright Law Review Committee on Legal Deposit

  1. Executive Summary
    2. Recommendations
    3. Preamble
    4. Legal Deposit
    5. Rights and Responsibilities 6. Recommendations
    7. Contacts

1. Executive Summary

1.1 Legal deposit is essential if Australia is to safeguard its published [1] cultural heritage material through its national collecting institutions. It serves the public interest by ensuring the survival of cultural material, guarantees the ability of creators to exploit their works, and provides fair access for the purposes of research, scholarship, study and criticism.

1.2 Australia's legal deposit provisions require updating to allow the collection and protection of published cultural material in all forms. The National Library of Australia's legal deposit provisions need to be extended, and there is an immediate need for the National Film and Sound Archive to be given a legislative mandate to carry out its collecting and preservation responsibilities.

1.3 The National Film and Sound Archive and the National Library of Australia request the Copyright Law Review Committee to endorse the principle of legal deposit as a means of achieving government policy and safeguarding the cultural memory of the nation, and to ensure that legal deposit is maintained and extended in future copyright legislation.

2. Recommendations

2.1 That the Copyright Law Review Committee endorse the principle of legal deposit, and the subordinate principle of selection by the depository institution, and ensure that legal deposit provisions are retained in the revised Copyright Act.

2.2 That in the assignment of depository responsibilities under the revised act, both the National Film and Sound Archive and the National Library of Australia be named as depository institutions and that their complementary roles and responsibilities be recognised in the legislation.

2.3 That the scope of publications to be covered by the legal deposit provisions of the revised Copyright Act be extended to include microforms, audio-visual materials of all kinds and electronic publications, both networked and artefactual (eg. CD-ROM), and all formats yet to be developed, in addition to the print-based publications currently included.

2.4 That the definition of "publication" in the revised Copyright Act be extended to include the concept of publication by transmission.

2.5 That in the revised act, designated depository institutions be permitted to reformat materials in their collections when necessary for preservation purposes.

2.6 That, under the revised act, penalties for non-compliance be retained and increased.

2.7 That the Copyright Law Review Committee endorse the specifying of the operational details of legal deposit through regulation rather than in the body of the revised act.

3. Preamble

3.1 The National Film and Sound Archive and the National Library of Australia play important roles in implementing the Commonwealth's cultural development policy, defined in Creative Nation as:

3.2 The Cultural Ministers' Council has endorsed the statement National Conservation and Preservation Policy for Movable Cultural Heritage which recognises

3.3 The National Library of Australia ("the Library") is a statutory authority which provides a range of library and information services to organisations and individuals throughout Australia. Required by its Act to maintain and develop a national collection of library material relating to Australia and the Australian people, a major factor in achieving this has been the designation, in section 201 of the Copyright Act 1968, of the Library as the nation's deposit library for Australian printed publications.

3.4 The National Film and Sound Archive ("the Archive") was established in 1984, and exists to increase knowledge, appreciation, use and enjoyment of Australia's screen and recorded sound heritage by acquiring, preserving, and providing access to a national collection of film, television, video, radio, and recorded sound materials. Associated documentation and equipment is also collected. At present the Archive has no legislative basis as a depository.

3.5 This submission addresses term of reference (3) "Issues remaining from the work of the CCG". It includes seven recommendations which should form the basis of ongoing recognition of the cultural importance of legal deposit and how this can be put into effect through legislation. It also includes a recommended text for replacement of section 201 of the Copyright Act 1968, provided as Appendix 1.

4. Legal Deposit

4.1 Legal deposit is the requirement, binding on publishers and enforceable by law, to deposit with one or more designated institutions a copy or copies of their publications. The Archive, and the Library believe that recognition of the principle of legal deposit is essential if they are to implement the Commonwealth's heritage policies effectively. These policies are to:

4.2 The principle of legal deposit is enshrined in international convention and national law. The UNESCO Recommendation for the Safeguarding and Preservation of Moving Images (1980), to which Australia is a signatory, recognises the need for the systematic preservation of moving images as part of the cultural heritage. It sets out, at length, the preferred features of a mandatory deposit system and has influenced the creation of such systems internationally. These now operate in 21 countries (including China, USA and Russia) and are in the process of introduction in a further 14 countries. Still others, including the European Community, are developing laws or conventions in this regard.

4.3 Australian practice with regard to legal deposit and the preservation of the nation's cultural heritage materials should conform with international best practice. Most countries have legislated to ensure legal deposit of published materials. More recently, a number of countries have taken action to incorporate the new forms of publication brought about by technological change.

4.4 Canada and Norway, have introduced technology-neutral provisions into their legislation, and have extended legal deposit coverage beyond print-based materials. Changes to legislation, both overseas and in the Australian states, have reflected the evolving situation. Canadian legislation specifies a book as "library matter of every kind and description", and the National Library of Canada has recently begun to exercise its right to collect electronic publications through legal deposit. In Norway, a new Legal Deposit Act of 1989 broadened the definitions of the terms used, such as 'document' and 'publisher', to allow for legislation general enough not to require updating when new publication media are introduced. Institutions in the United Kingdom are currently seeking the legal deposit of non print publications which they regard as part of the "nationally published archive".

4.5 The Copyright Act 1968, was legislated at a time when it was not possible to foresee the impact of new technologies and new means of communication. Consequently legal deposit provisions were limited to print materials only. Revision of the Act provides an opportunity to recognise the significance of publication in a wider range of formats and to recognise the role of the National Film and Sound Archive in safeguarding the national heritage. The concept of legal deposit remains valid in the new technological environment and this has been recognised by both the Copyright Convergence Group [5] and the Copyright Law Review Committee report on computer software protection [6].

4.6 Within Australia, the legal deposit provisions in the state legislation of Queensland, South Australia, Tasmania and Victoria have been extended, to varying degrees, to enable the state libraries to collect a wider range of materials than the Commonwealth legislation currently allows. Similar legislation for New South Wales is waiting to be tabled in the State Parliament.

4.7 The recent Copyright Law Review Committee report Computer Software Protection included among its recommendations:

The definition in s.201 of the Act be amended to include computer programs and works stored in computer memory; and
in relation to these classes of materials, the National Library should be given a discretion to determine the particular materials for inclusion in its collection. [7]

5. Rights and Responsibilities

The principle of legal deposit rests on a number of rights and responsibilities which are set out below.

5.1 Ensuring the Survival of Cultural Material

5.1.1 National cultural identity depends largely on the survival of cultural material. Designated public institutions acting in the public interest need to be empowered to ensure the survival of cultural material. Survival of cultural material is always at risk. The National Library has been able to achieve a good coverage of Australian printed publications precisely because legal deposit provisions for printed publications have been in place. This has included much material published by Australia's multicultural and indigenous communities, not readily available through the normal channels of the publishing trade. The loss of much of Australia's audio-visual heritage demonstrates the vulnerability of cultural materials unprotected by legal deposit requirements. Only 5% of Australia's silent film heritage survives. Much early television and radio material, including almost all of the famous serial Blue Hills, has been lost. The past six months have already seen the appearance and disappearance of electronic journals on the Internet.

5.1.2 It is not enough to depend on publishers to keep their works. They may lose that information when ceasing operation, or they may decide that it is uneconomic to maintain information which they consider has lost its relevance or commercial value. They may be ill-equipped, unwilling, or unable to allocate funding to ensure that cultural property is preserved and maintained. Those publishers which maintain an archive do not necessarily provide public access to their holdings. Legal deposit arrangements are essential to ensure the collection, preservation and access to this material.

5.1.3 The Archive and the Library bear the Commonwealth Government's responsibility to preserve the published national heritage. For this reason, no publisher should be allowed to prevent the acquisition or retention of a work by a designated public collecting institution for heritage purposes.

5.1.4 By definition, it is neither possible nor desirable to preserve everything that is published. While publishers have an obligation to make available all of their publications for deposit, public institutions acting as depositories require the right to select what is judged to be of lasting cultural value. This includes the right to initiate or decline deposit, and the right to deselect material judged to lack continuing value, or which may be more appropriately housed elsewhere.. These processes need to be "due processes", publicly accountable, with published policies open to public scrutiny and discussion.

5.1.5 Based on the professional judgment of their officers, designated public institutions need the right to choose the appropriate format or delivery system for material they acquire, relative to the preservation and access objectives involved. Since formats and technology constantly change, these cannot be rigidly legislated.

5.1.6 Once items are acquired on legal deposit, the collecting institution needs to be at liberty to take any action which it considers essential to ensure their continued existence. This may involve copying, or transferring the information to another, more stable medium to preserve the content for future generations.

5.2 Serving the Public Interest

5.2.1 The freedom to publish and exploit a work under the legal protection of copyright is not independent of social responsibility. It is balanced by the right of the public to have access, through libraries and archives, to its intellectual and cultural heritage. This is most explicitly stated in the law of the United States, where:

"The primary objective of copyright is not to reward the labor of authors, but "To promote the Progress of Science and useful Arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. ... This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art." [8]

5.2.2 Copyright is not an inherent right of the copyright holder, but a limited duration right bestowed as part of government policy calculated to serve a number of interests. This is implicit in Australian copyright law which strives to balance the interests of owners and the users of copyright materials. Content creators, in order to continue creating, must be able to draw on available material for inspiration and study. Fair access to, and use of material is important in fostering creativity.

5.2.3 Guaranteed acquisition of published works on fair and reasonable terms [9] is the best and most appropriate expression of the public interest and serves the interests of the publisher and creator. The survival of the work and hence the owner's ongoing potential to exploit the copyright is assured and enhanced through public funding. In addition to housing and preserving works, depositories create catalogues, lists and bibliographies promoting awareness of the work's existence. In some cases they physically safeguard the work until a future time when the copyright owner is ready to exploit it.

5.2.4 This principle of guaranteed acquisition is best implemented through the extension of traditional legal deposit methods to include all forms of published materials.

5.3 Respecting the Rights of Copyright Owners

5.3.1 The Copyright Act balances rights and rewards to authors with the interests of the public and eventually the public domain. It provides remuneration for creators, publishers and other copyright owners for a limited time. Consistent with the above principles, the legitimate rights of copyright holders to fairly control the use of their works, and to receive reasonable returns for their creativity, are supported by public collecting institutions and are in no way incompatible with the principle of legal deposit.

6. Recommendations

6.1 The Archive and the Library believe that the principle of legal deposit should be acknowledged in the Copyright Act as the best mechanism for achieving the cultural policy objectives of the preservation of Australian published cultural heritage and access to it. We therefore recommend:

6.1.1 That the Copyright Law Review Committee endorse the principle of legal deposit, and the subordinate principle of selection by the depository institution, and ensure that legal deposit provisions are retained in the revised Copyright Act.

6.2 The National Film and Sound Archive came into being subsequent to the enactment of the Copyright Act 1968, but has a mandate for care and preservation of heritage sound and moving-picture materials similar to the National Library's mandate for other types of published material. In our view, reforms to the Copyright Act 1968 should include provisions for the legal deposit of all types of published materials. The appropriate depository institutions are the National Film and Sound Archive for certain forms of material having a primary focus on moving picture and sound, and the National Library of Australia for other formats. There is an immediate and urgent need to extend the legal deposit provisions of the Copyright Act, and to designate the National Film and Sound Archive as a depository institution. We recommend:

6.2.1 That in the assignment of depository responsibilities under the revised act, both the National Film and Sound Archive and the National Library of Australia be named as depository institutions and that their complementary roles and responsibilities be recognised in the legislation.

6.3 The Commonwealth's legal deposit provisions contained in the Copyright Act 1968 designate the National Library of Australia as the depository library for "library material" published in Australia. Library material is defined as "book, periodical, newspaper, pamphlet, sheet of letter-press, sheet of music, map, plan, chart or table ..." To fulfil its purpose, the scope of legal deposit needs to be extended beyond the categories defined in the act. Libraries and other collecting bodies now acquire a range of materials including microforms, multi media publications, computer software, films, sound recordings, computer games, and electronic formats (magnetic tapes, floppy discs, CD-ROMs, machine-readable data files, image files, electronic journals, and networked information resources). They will continue to have the mandate to collect information in new and emerging formats. For this reason, the legal deposit provisions should not attempt to be specific, but should cover any form of publishing whether currently in use, or yet to be devised. Accordingly, we recommend:

6.3.1 That the scope of publications to be covered by the legal deposit provisions of the revised Copyright Act be extended to include microforms, audio-visual materials of all kinds and electronic publications, both networked and artefactual (eg CD-ROM), or formats yet to be developed, in addition to the print-based publications currently included.

6.4 As the Copyright Convergence Group pointed out in their report [10], the existing definition of "publication" may be inadequate. If the National Library is to receive electronic journals and other publications transmitted via networks, and the National Film and Sound Archive is to receive transmitted moving images and sound recordings (not released in a tangible form), it is possible that these items may not be considered published according to the existing definition in Section 29 of the Act. It is the view of both institutions that the definition of publication should be extended to include making material available to the public by electronic means. We therefore recommend:

6.4.1 That the definition of "publication" in the revised Copyright Act be extended to include the concept of publication by transmission.

6.5 Depository collecting institutions need to be able to take any action required to ensure the preservation of heritage material, including the copying or transfer of information from one medium to another. We recommend:

6.5.1 That in the revised act, designated depository institutions be permitted to reformat materials in their collections when necessary for preservation purposes.

6.6 Penalties should apply for non-compliance with the legal deposit provisions, with the details set forth in regulations under the act. These penalties should be increased over the present levels, and expressed in terms of penalty points. We recommend:

6.6.1 That, under the revised act, penalties for non-compliance be retained and increased.

6.7 With the assignment of national responsibilities for collecting, libraries are no longer the only collecting bodies. Changes to the Copyright Act, 1968 should make the act broad enough to allow the collection of any existing publishing format and any yet to be developed. We strongly support a simple, comprehensible and straightforward act, with detailed information covered by regulations as necessary. Among other things, the regulations should provide, where appropriate, for continuance of existing voluntary arrangements which achieve the objective of guaranteed acquisition. We recommend:

6.7.1 That the Copyright Law Review Committee endorse the specifying of the operational details of legal deposit through regulation rather than in the body of the revised act.

7. Contacts

7.1 The National Film and Sound Archive and the National Library of Australia would be willing to elaborate on the themes discussed in this paper, and welcome the opportunity to appear at hearings of the Copyright Law Review Committee and any other opportunities for discussion of this issue. The relevant contacts are:


National Film and Sound Archive
GPO Box 2002
Canberra ACT 2601
Email: collection@nfsa.afc.gov.au

Ms Pamela Gatenby, Assistant Director-General
National Library of Australia
Canberra ACT 2600
E-mail: pgatenby@nla.gov.au

7.2 The National Film and Sound Archive and the National Library of Australia accord the Copyright Law Review Committee Secretariat permission to make this submission available in digital form.

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