overview

This profile considers legal (aka statutory) deposit schemes.

Those schemes aim to provide long-term access to print and other publications through mandatory or voluntary deposit in national libraries and other institutions.

     contents

This profile covers -

• this overview
• the Australian (federal and state/territory regime) for print, film, audio and online publications
• New Zealand
• Canada
• the UK
• USA
• continental Europe, including Finland, Norway, Germany, Japan and The Netherlands
• other parts of the world - including Japan, Singapore and South Africa
• global - access to the publications of international bodies

It supplements the discussion in the Intellectual Property and Publishing guides elsewhere on this site.

     introduction

Advocates of legal deposit have traced its history to the 1537 Ordonnance de Montpellier of François I of France and contemporary licensing schemes in England and other states that obligated publishers to provide a free copy to one or more repositories (eg a university or royal library) as a condition for authorisation to publish.

In 2004 Legal Deposit - aka Dépôt Légal, Statutory Deposit or Mandatory Deposit - obliges publishers to deposit copies of publications in one or more libraries in the nation of publication.

That obligation is generally embodied in the particular country's national library or copyright legislation. It has been an accepted in most nations for at least a century - and indeed was the centrepiece of what would now be regarded as the national information policy.

     rationale

The rationale is that there is a public good in community access, through particular institutions, to print publications. Publishers and authors gain protection under copyright law for their intellectual property. Their work is also accessible on an ongoing basis through an independent repository, obviating the need for them to maintain a private archive of publications.

In return the state is able to provide citizens with access to those publications in a way that does not serve as a fundamental disincentive to investment or disrespect the author's moral rights.

Statutory deposit has sometimes been associated with national copyright registration regimes (eg protection of works was dependent on each work being formally registered as part of deposit with an institution such as the US Library of Congress).

It has provided a basis for states to build a national collection, thus strengthening national identity and addressing aspirational statements such as the United Nations Declaration on Human Rights which identifies a "right to seek, receive and impart information" (Article 19) and a "right to freely to participate in the cultural life of the community, to enjoy the arts, and to share in scientific advancement and its benefits" (Article 27).

As with all intellectual property regimes, statutory deposit reflects a calculus of perceived costs and benefits. Publishers and authors forgo some revenue by giving rather than selling their work to the institution. In return the institution generally provides long-term access to that work, something that involves appropriate cataloguing and preservation.

Deposit regimes have also had an evidentiary and surveillance function.

The Western Australian Newspaper Libel & Regulation Act 1884 for example provides that a signed copy of every newspaper published in WA must be deposited with the State Library. An amendment of France's legal deposit under Napoleon I in 1810 required routing of the Bibliothèque Nationale's deposit copies via the Ministry of Police to facilitate surveillance of the press. (France currently requires that publishers deposit four copies with the Bibliothèque Nationale and one with the Ministry of the Interior. The unfortunate printer is additionally required to deposit two copies with each of 30 authorised libraries across metropolitan France's 22 regions.)

     legislation

The legislation in most statutory deposit regimes, such as Australia, centres on print publishing and reflects different national circumstances, with variation evident in regimes that require deposit of a single copy to a national library or a copy to each of a handful of libraries, differing coverage and penalties for non-compliance.

In some nations the legislation requiring the deposit takes the form of a legal deposit act (eg in Sweden, France, Greece, Indonesia, Peru and Norway) or a national library enactment (eg in Canada, Japan and Nigeria). In other nations the obligation is bundled with copyright legislation (eg Australia at the federal level and the US). Some nations, such as Chile and Cuba, have relied on an administrative decree rather than a discrete enactment.

     coverage

As noted above, legal deposit regimes have traditionally centred on print publications - in particular books - and have encompassed what has been characterised as 'library materials'. Depending on the ambitions and resources of particular institutions that material may include -

• books
• scholarly and other journals
• newspapers
• pamphlets and other printed ephemera
• maps
• published plans
• sheet music
• microforms

Some nations have sought to cover audiovisual publications (in particular phonographic recordings, films and videos). A handful have made explicit provision for electronic publications. In most instances that provision is restricted to physical format electronic publications (eg works published on CD-ROM or floppy disk) and does not extend to provision of electronic copies of static/volatile content.

Some nations have explicitly included film, video and audio recordings in their legislation. In the EU article 5 of the 2001 European Convention for the protection of Audiovisual Heritage and associated Protocol on the Protection of Television Productions
provide - in principle - for compulsory legal deposit of all moving image material forming part of an EU member's audiovisual heritage, subject to international and national rules on copyright.

     responsibilities

Responsibilities vary from regime to regime.

In all legal deposit schemes the publishers are either required or encouraged to provide one or more copies. That provision is generally at their own expense; Japan provides publishers with nominal compensation. The requirement for free copies has been criticised by publishers with small, high-cost print runs (reflected in provisions in New Zealand that only one copy need be supplied if the price exceeds NZ$1000 or the number of copies printed is less than 100).

One EC study unsurprisingly commented that "publishers are reluctant to acknowledge the benefits of deposit; they tend to view it as an obligation which costs money with little return".

Publisher and author concerns have been heightened by moves to require deposit of online electronic publications, with a 2000 IFLA study noting

Considering that a single copy stored at a single location on the Internet could serve the whole planet, it is understandable that publishers need to know that their commercial interests are respected by depository institutions

Repository requirements differ.

In some nations the institution is the national library (eg Australia, UK, France and Lithuania). In other instances it is that nation's parliamentary library (eg the US, Israel and Japan). Some small states have required deposit in the national archives (eg Antigua and Senegal).

It is common requirement for a copy to be provided to a major university library (eg Oxford and Cambridge in the UK) or institutions within particular provincial jurisdictions (eg state libraries in Australia).

Particular media are often deposited with specialist institutions, eg in France the Centre national de la cinématographie et l'Institut national de l'audiovisuel deals with deposits of audio-visual material.

     digital publishing

Most statutory deposit legislation predates technologies such as films, sound recordings and the internet. Challenges associated with identification, storage (including preservation copying and migration from one format to another) and appropriate access to digital works mean that the development of new deposit legislation is problematic.

Many nations are accordingly using voluntary deposit schemes for handling digital publications (and works such as films) outside legal deposit legislation. Those schemes are typically developed by national libraries and major commercial publishers, reflecting the Statement on the Development & Establishment of Codes of Practice for the Voluntary Deposit of Electronic Publications by the Conference of European National Librarians and the Federation of European Publishers and the 1996 guidelines from UNESCO and the Conference of Directors of National Libraries.

The absence of community pressure, institutional wariness about additional responsibilities and commercial publisher concerns about access mean that it is likely voluntary schemes will continue to predominate for electronic publishing.

     studies

A valuable overview is provided by Jan Jasion's The International Guide to Legal Deposit (Aldershot: Ashgate 1991) and the 2000 study by Jules Larivière on Guidelines for Legal Deposit Legislation.




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