The British Library and other legal deposit libraries have suffered a setback in their attempt to impose on publishers the legal obligation to deposit copies of all digital publications made in the UK, with the government accepting that it needs to rethink its draft regulations.
As the law stands (in the form of the Legal Deposit Libraries Act 2003), a copy of each book or serial or other printed publication which is published in the UK is required to be deposited free of charge in the British Library. In addition, five other libraries (the National Libraries of Scotland and Wales, and the University libraries of Oxford, Cambridge and Trinity College Dublin) are each entitled to receive, on request, one free copy of any book or other printed publication published in the UK. The 2003 Act also created a framework in which regulations could be made to extend this system to cover various non-print media, including off-line publications such as CD Roms and online publications such as e-journals.
In September 2010 the UK government went out to consultation with draft regulations, but it seems that they pleased virtually no one. On the one hand the libraries were concerned that the regulations did not go far enough; publishers had control over the format of their content, there were provisions for temporary embargoes on some material, mechanisms were to be adopted to protect copyright, and some libraries felt that the regulations should extend to audio and video material. On the other hand publishers expressed significant concerns about data security and access to content, the potential for the duplication of archives and a number of technical implications, but perhaps most of all about the costs that they might have to incur.
In its response to the consultation exercise published on 5 April 2011 the government concedes that one of the key objectives of the consultation was to try and clarify the costs to business of the regulations (something which is required under the 2003 Act before regulations can be passed), and it has not be able to get this information. In the light of the overall responses, and the lack of evidence from both libraries and publishers to support the case that the draft regulations do not impose a disproportionate burden, the government has concluded that it is not viable to go forward with the regulations as currently drafted.
The government indicated in its response that it remains committed to producing regulations that cover non-print content, and it now proposes to develop the draft regulations to include only off-line content and online content “that can be obtained through a harvesting process”.
In the short-term at least it would seem that proposals to extend the current legal deposit system from printed works to digital works has been kicked back into the long grass, but the publishing industry will need to watch this area closely to see how the draft regulations are further developed. Given the latest government comments, it looks likely that publishers will wish to consider placing their more valuable content behind systems that resist data scraping and other harvesting technologies if the revised regulations do indeed entitle the legal deposit libraries to “harvest” content in this way.
©Taveners 2011