Australia

This page considers legal (aka statutory) deposit schemes at the federal and state/territory level in Australia.

It covers -

• introduction
• coverage
• federal legislation
• state/territory legislation
• voluntary schemes
• studies

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

     introduction

The Australian legal deposit regime embraces the Commonwealth (ie federal government) and the state/territory governments.

As with overseas regimes, legislation in Australia has centred on statutory deposit of print publications (in particular monographs). Moves towards mandatory deposit of physical format electronic publications, online content and other media (eg film and sound recordings) have been erratic. There is no requirement for archiving of free to air or subscription television and radio broadcasts.

Commonwealth legislation does not require deposit of electronic publications, films, videos or sound recordings. Some states have legislation that includes particular media. No state has legislation that explicitly covers online publications.

In 1995 the National Library and the National Film & Sound Archive (now ScreenSound Australia) had made a joint submission to the Copyright Law Review Committee seeking:

• endorsement of the principle of legal deposit
• recognition of the principle of selection by the depository institution
• the extension of the scope of publications covered by legislation to include all electronic formats
• the extension of the definition of the term 'publication'.

That submission was reflected in a 1997 discussion paper by the Copyright Law Review Committee (CLRC) on Legal Deposit of Copyright Materials under the Copyright Act 1968.

Follow-up to that discussion paper did not progress and in 1999 the CLRC instead dealt with Legal deposit as Issue 13 in its report on Simplification of the Copyright Act 1968. Part 2: Categorisation of subject matter and exclusive rights, and other issues.

Recommendations in that report included:

• the definition of 'library material' be broadened to include audiovisual material and material in electronic form
• deposit of all materials remain compulsory
• the National Library and the National Film & Sound Archive should not need to seek authorisation of copyright owners regarding storage of deposited material
• deposited materials would be made available on a restricted access: both hard copy and electronic material would only be available for examination at the repository institution

As we have noted elsewhere, under the Copyright Act 1968 protection is granted automatically in Australia from the moment of creating a work. Protection is not dependent on registration or payment of fees. Publication is not necessary for copyright to subsist in a work except in the case of broadcasts and publishers' copyright in editions of works.

     coverage

The Australian legal deposit regime is concerned with publishing per se. It thus encompasses commercial publishers and private individuals, clubs, churches, societies and organisations that have produced publications. A work is deemed to have been published if reproductions of the work or edition have been made available (whether by sale or otherwise) to the public.

It does not, however, cover electronic publications in non-physical formats, eg websites. Archiving of non-government sites - through initiatives such as the National Library's PANDORA program - has a voluntary basis.

As we have noted in discussing archiving of the net, that has led calls for mandatory 'deposit', with for example the deliciously zany comment in 2004 that

I'd like to see mandatory digital-recording of all .au websites legally deposited by all .au domain re-sellers every 6 months, together with up-to-date who-is information for the ip address perhaps especially for pages which make e-commerce offers. ... Having leased out the .au address the registrars have some ongoing public responsibility as to what is placed there, eg at the very least to record it regularly. I do not believe registrars should be able to lease out an Australian public asset (an Australian web address) and ignore how that asset is then utilized. Eleven trainee positions each with six or so burners could easily copy most or all non-passworded .au domain webpages and legally deposit them without problems, and benefit all Australians.

Monkeys, on the other hand, could be fed with bananas and peanuts.

     federal legislation

a book, periodical, newspaper, pamphlet, sheet of letter-press, sheet of music, map, plan, chart or table, being a literary, dramatic, musical or artistic work

There is a small penalty for non-compliance which, with inflation over the years, would scare no one, not even an eight year old self-publisher with an average amount of pocket money. The Library has never relied on imposing a penalty. We have always chosen to encourage publishers to deposit with us based on the public good argument.

     state/territory legislation

In New South Wales deposit is required under sections 5 to 7 of the state's 1952 Copyright Act, updating legislation of 1879. The Act requires that a copy of every 'book' first published in NSW be lodged with the State Library within two months of publication. The Act defines 'book' as any book, newspaper, pamphlet, leaflet, music, map, chart or plan separately published and 'bound', sewed or stitched together'.

In Victoria deposit is required under section 49 (PDF) of the Victorian Libraries Act 1988, which requires the deposit within two months of every new publication published in Victoria. Publication includes every book, periodical, newspaper, musical score, map, chart, plan, picture, photograph, print and any other printed matter, any microfiche or microfilm and a range of other types of publication.

In Queensland deposit is required under sections 68 to 73 of the Queensland Libraries Act 1988 (PDF). The Act requires deposit with the State Librarian and the Librarian of the Parliamentary Library of material published in Queensland. That material is to be deposited within one month of publication. Material is defined as every part or division of a book, periodical, piece of sheet music, map or chart, also non-print: an audio tape, film, video recording, disk, microfilm or microfiche. Material is considered to have been published if reproductions of the material or edition have been supplied (whether by sale or otherwise) to the general public.

In South Australia deposit is required under section 35 of the South Australian Libraries Act 1982. The legislation requires that material published in South Australia be deposited with the State Library within one month after publication. That material includes a book (or a part or division of a book), a newspaper, magazine, journal or pamphlet, a map, plan, chart or table and printed music. It also includes a record, cassette, film, video or audio tape, disk or other item made available to the public, designed to store and facilitate the reproduction of visual images, sound or information. Items received by the State Library under legal deposit are listed in the Mortlock Miscellany.

In Tasmania section 22 of the Tasmanian Libraries Act 1984 requires that a book published in Tasmania be deposited with the State Library within one month of publication. 'Book' encompasses

any book, periodical, newspaper, printed matter, map, plan, music, manuscript, picture, print, motion picture, sound recording, photographic negative or print, microphotography, videorecording and any other matter or thing whereby words, sounds or images are recorded or reproduced

That has been interpreted as covering physical format electronic publications and web pages are included in the broad definition of 'records' that are required for deposit under

Deposited online content is made accessible through the State Library's Our Digital Island (ODI) site.

In Western Australia deposit was required under the Western Australian Copyright Act 1895, which specified that a book published in Western Australia be deposited with the State Library within two months of publication. The Act was repealed in 1994 and replacement legislation (notably the Culture, Libraries and the Arts Bill 1998) has stalled. The 1998 Bill identified 'publication' as a book, newspaper, magazine, journal, pamphlet, map, plan, chart or table, printed music, a film, tape, disc or other device, and anything prescribed to be a publication for the purposes of that definition. The Newspaper Libel & Regulation Act 1884 (here) provides that a signed copy of every newspaper published in the State must be deposited with the State Library.

There is no Australian Capital Territory legislation mandating deposit of items published in the ACT. Publishers are encouraged to deposit with the ACT Library Service a copy of any book, pamphlet, newspaper, periodical, sheet music, map, plan, chart, printed sheet, film, video or sound recording published in the Territory.

There is no Northern Territory legislation regarding Legal deposit of items in the Territory. Publishers are encouraged to deposit with the Northern Territory Library a copy of any book, pamphlet, newspaper, periodical, sheet music, map, plan, chart, printed sheet, film, videocassette, audio cassette, CD and floppy disks published in the Territory.

     voluntary schemes

Most state libraries and some archives have encouraged voluntary deposit of non-book publications.

The National Film & Sound Archive (aka ScreenSound) encourages deposit of films and sound recordings.

The National Library of Australia has implemented an interim Voluntary Deposit Scheme for Electronic Publications (here) and a Policy on the Use of Australian CD-ROMs and Other Electronic Materials Acquired by Deposit (here) which controls access to these publications in recognition of the interests of authors and publishers.

     studies

Most studies regarding the Australian regimes have come from the library sector, with recent work concentrating on electronic publications in online and physical formats.

The federal regime is discussed in Pam Gatenby's brief 2002 paper Legal Deposit, Electronic Publications and Digital Archiving: The National Library of Australia's Experience and touched on in Paul Koerbin's 2005 Report on the Crawl & Harvest of the Whole Australian Web Domain Undertaken During June & July 2005 (PDF). Broader perspectives are provided in responses to the CLRC discussion paper, accessible on the CLRC site.

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