Consultation on the Legal Deposit of Non-Print works

Response from the Bodleian Libraries of the University of Oxford

Updated 18 June 2012 

Introduction
The United Kingdom has a long history of securing its cultural heritage through the medium of legal deposit, originating in the agreement between Sir Thomas Bodley and the Stationers' Company of London in 1610 that a copy of every book entered in its register would be deposited in his Library at the University of Oxford. The combined print collections of the current legal deposit libraries therefore provide an invaluable record of our society's cultural activities over the last 400 years. However, the gap created by the lack of provision for depositing non-print works is becoming increasingly large. The Bodleian Libraries of the University of Oxford therefore welcome the present draft Regulations and would like to see them implemented as early as possible.

Legal deposit has enabled the Bodleian Libraries to play their part in the cultural and economic life of the country:
i. providing a national resource to scholars within the context of a world-class University: this historic role was recognized once more by the Higher Education Funding Council for England in 2008 when it designated the Bodleian Libraries as a National Research Library
ii. providing books, journals and other materials to support research, through which valuable discoveries are made and disseminated which improve people's lives and stimulate the economy
iii. supporting teaching in the collegiate University, turning out graduates who contribute to society and the economy.

For this contribution to continue, we need to be able to gather and provide access to non-print as well as print works.

Legal deposit in the digital age requires all countries to play their part because of the international nature of the web. The UK has a vital role to play in recording the world's heritage because of the strength of its publishing activities. Currently we have fallen behind countries like France, Germany and New Zealand in preserving digital content, but if the draft Regulations are implemented in goodtime we have the potential not just to catch up but to be in the forefront of digital archiving.

In an ideal scenario envisaged by Oxford researchers Eric T. Meyer, Arthur Thomas and Ralph Schroeder, web archives have the potential to be 'part of the standard research toolkit of Internet science, political science, economics, sociology, contemporary history (and, in the future, history of
the late 20th and early 21st century), journalism, linguistics, communications, business, media studies, and other disciplines. Beyond academia, web archives would be usable and useful for the general public, governments, policy units and think tanks, businesses, and non-governmental organizations.'(1)

Harvesting the web replaces many aspects of collection development in the print world, as well as introducing new aspects with no previous equivalent. One of the functions of web archiving is the electronic equivalent of collecting print ephemera, which, in the Bodleian Libraries, has centred on the John Johnson Collection, now a valuable resource for the primary study of British history. Working with the publisher ProQuest, highlights from the Collection have been digitized and made available to the public in a project supported by the Joint Information Systems Committee. (2) We need the legislative framework which will allow us to collect digital versions of these documents, building on our existing
print collections, for the benefit of future scholars.

Legal deposit is of particular benefit to researchers in the Humanities and Social Sciences. It creates a body of primary sources for the study of cultural identity and history. The University of Oxford has long had a tradition of teaching and research in the Humanities, and continues to see this as an
important contribution to society. (3) For legal deposit to continue to support the study of Humanities, it is crucial to start to capture the increasing number of primary and secondary sources that only appear in digital format.

The collection of works in digital format is likely to reduce the cost of legal deposit, both to publishers and libraries, and to increase the efficiency of the legal deposit process. This will bring benefits to all parties, and is increasingly important in higher education, as highlighted in the report 'Efficiency and effectiveness in higher education' published by Universities UK in September 2011.(4)

It is important to note, however, that the Bodleian Libraries do not regard non-print legal deposit as a way to acquire content without paying: we do not intend to cancel any of our journal or database subscriptions, and intend to continue to buy electronic books and backfiles as before, once the Regulations are introduced.


Answers from the Bodleian Libraries

  • Consultees
    1. Q: Are you responding on behalf of:

    A micro business (<10 employees)
    A business with less than 20 employees
    A small business (< 50 employees)
    A medium business (<250 employees)
    A large business (250+ employees)
    A legal deposit library
    Other

    A: A legal deposit library
  • Non-print works within scope
    2. Regulation 17
    Q: The types of non-print works within scope of the regulations have been clarified. The regulations, and therefore the obligation to deliver under the 2003 Act, will potentially apply to all off line work and all on line work (that is published in the UK).

    The type of off line and on line work excluded from the regulations has also been clarified. This is content on a closed intranet and content containing personal data on social network-typesites.

    Please comment on whether you think any issues will arise with this approach. Please provide
    reasons and, where appropriate, evidence for your answers.

    A: We are very satisfied with the clarification of the types of non-print works within scope of the regulations. In a non-print world, definitions of a work which derive from a print world are of limited use: it is preferable to provide an open definition so that types of works which we cannot now envisage but which are likely to emerge during the next few years are not inadvertently excluded.

    The Joint Committee for Legal Deposit, which includes representatives of publishers and legal deposit libraries, and on which the Bodleian Libraries are represented, agreed a definition of a work in greater detail for working purposes, and this should be helpful to the Committee once the regulations have been passed.
  • Delivery of online work

    3. Regulation 20
    Q: The obligation to deliver an on line work will no longer only apply to the first deposit library to make the request. In theory, each deposit library will be entitled to request the same work. In practice, however, it is unlikely that individual deposit libraries will request exactly the same work, as this will require individual libraries to make requests by web harvester at approximately the same time (depending on how frequently the content of the website changed).

    In addition, the deposit libraries will operate a co ordinated collections policy which will avoid duplicated collection of on line content.

    Please comment on whether you think any issues will arise with this approach. Please provide reasons and, where appropriate, evidence for your answers.

    A: We are very satisfied with this change to the draft regulations. The legal deposit libraries intend to co-operate in the acquisition and delivery of non-print works, on the basis of a collections policy agreed between them, and this co-operation will result in a
    more economic, streamlined activity which avoids duplication. However, legal deposit libraries vary in their history and in the communities they serve, and are autonomous institutions (or part of autonomous institutions), so it is right that they should have control over the requesting process where it is needed.

    4. Regulation 20
    Q: Where no agreed alternative method of delivery is in place, if a deposit library wishes to request an on line work, the request must be made by web harvester to the IP address from which the work is made available.

    Delivery of on line work requested by web harvester must be made by way of automated response to the web harvester.

    A request made to a webpage which contains a login facility is deemed to be a request for the content behind that login facility.

    Deposit libraries are required to provide publishers with at least 14 days' written notice of a request to site with a login facility in respect of work behind that facility. This will give the publisher the opportunity to provide login details to the deposit library so that, once the request is made, the publisher will be able to meet its obligation to deliver the work by automated response to the web harvester. The enforcement provisions in section 3 of the 2003 Act will apply in circumstances where a publisher fails to deliver on line work in response to a request.

    Deposit libraries will be required to use the login details provided by publishers. The purpose of this regulation is to allow deposit libraries to collect both freely available and access-restricted on line work by web harvesting, at nil or minimal cost or inconvenience to the publisher.

    Please comment on whether you think any issues will arise with this approach. Please provide reasons and, where appropriate, evidence for your answers.

    A: We understand the need to avoid economic burdens on publishers and business, especially given their substantial contribution to the UK economy, which in turn benefits our society. We are hopeful that, in practice, the use of harvesting for the purposes of legal deposit, as well as the provision in Regulation 21 for publishers and deposit libraries to agree on delivery by publishers (please see below), will not exclude any types of work and create gaps in the record of our cultural heritage. We suggest that legal deposit libraries and publishers collect examples, if any arise, to be considered as part of the review stipulated in Regulation 2.

    5. Regulation 21
    Q: Where a publisher and a deposit library, as an alternative to web harvesting, have agreed between themselves another method of delivery for on line work, delivery to the deposit library must be within 14 days of a written request for that work.

    Please comment on whether you think any issues will arise with this approach. Please provide reasons and, where appropriate, evidence for your answers.

    A: We are pleased to see that agreements between publishers and legal deposit libraries are recognized in the Regulations. We hope that the combination of harvesting and such agreements will provide a representative record of the country's cultural heritage. (Please see also response to question 4, above.)
  • Published in the United Kingdom

    6. Regulation 23
    Q: An on line work will be treated as published in the United Kingdom if:
    (a) it is made available to the public from a website with a domain name which relates to the United Kingdom or to a place within the United Kingdom; or
    (b) it is made available to the public by a person and any of that person's activities in relation to the creation or publication of the work take place within the United Kingdom.
    Any on line work which is not accessible from within the United Kingdom, will be excluded from this definition.

    Please comment on whether you think any issues will arise with this approach. Please provide reasons and, where appropriate, evidence for your answers.

    A: We are very satisfied with this definition. In parallel with the definition of a work in Regulation 17, a definition of 'published in the United Kingdom' which specifies domain names is of limited use: it is preferable to provide an open definition so that as domain names evolve during the next few years sites are not inadvertently excluded.
  • Permitted Activities

    Use etc. of relevant material by deposit libraries

    7. Regulation 24
    Q: Permitted activities have been extended to provide for deposit libraries to transfer or lend deposited material to any other deposit library. This will allow the deposit libraries to store and manage non-print work on a secure, linked network.

    Please comment on whether you think any issues will arise with this approach. Please provide reasons and, where appropriate, evidence for your answers.

    A: As stated in our response to question 3, the legal deposit libraries intend to co-operate in the acquisition and delivery of non-print works, and this co-operative venture will result in a more economic, streamlined activity which avoids duplication, delivering savings both to publishers and the public purse, which in the main funds legal deposit libraries. We therefore welcome formal provision for this collaboration in the Regulations.

    8. Regulation 25
    Q: The deposit libraries will be allowed to use deposited material for the purposes of reviewing and maintaining the material, and for the purpose of the deposit libraries'own research and study.

    Please comment on whether you think any issues will arise with this approach. Please provide reasons and, where appropriate, evidence for your answers.

    A: The Bodleian Libraries welcome this permission for the management, care and development of those materials collected through legal deposit for the benefit of our readers. We research and publish for the benefit of the scholarly community and society as part of our public engagement programme. This provision will facilitate those activities.

    9. Regulations 26 and 27
    Q: The National Library of Scotland will be permitted permanently to transfer the off line legal publications it receives to the Faculty of Advocates, in the same manner that the National Library of Scotland currently transfers printed legal publications to the Faculty of Advocates.

    The National Library of Scotland will also be permitted to transfer or lend on line legal publications with the Faculty of Advocates. The Faculty of Advocates will be bound by the restrictions on the use of off line and on line material in the same way as the deposit libraries.

    Please comment on whether you think any issues will arise with this approach. Please provide reasons and, where appropriate, evidence for your answers.

    A: Not applicable

    Research and private study

    10. Regulation 32
    Q: In addition to providing a copy of deposited material for non-commercial research and private study, a deposit library will be permitted to provide a copy for the purposes of parliamentary or judicial proceedings, or a Royal Commission or statutory inquiry.

    Please comment on whether you think any issues will arise with this approach. Please provide reasons and, where appropriate, evidence for your answers.

    A: We support the inclusion of these permitted uses of works.

    Adapting relevant material for preservation purposes

    11. Regulation 35
    Q: In addition to adapting a computer program or database for the purposes of preservation, the deposit libraries will be permitted to adapt any off line or on line work for the purposes of preservation.

    Please comment on whether you think any issues will arise with this approach. Please provide reasons and, where appropriate, evidence for your answers.

    A: This permission will help the legal deposit libraries ensure that works collected are available for future generations of readers.

    Disposing of copies of deposited works

    12. Regulation 36
    Q: This regulation clarifies that a deposit library may dispose of any deposited work, or copy or adaptation of any deposited work, provided that the deposit library retains at least one version of the work. The retained version must be the most suitable for preservation purposes.

    Please comment on whether you think any issues will arise with this approach. Please provide reasons and, where appropriate, evidence for your answers.

    A: We do not believe this will give rise to any issues.

    Copying work from the internet

    13. Regulation 17(3) and 23(3)
    Q: The combination of these regulations will permit the deposit libraries to copy work from the internet, in addition to the ability to request delivery of such on line work under other parts of the regulations (regulation 20). Copied work will be subject to the same permitted use restrictions, and the same exemptions in relation to copyright, database right and defamation as work which is delivered.

    Please comment on whether you think any issues will arise with this approach. Please provide reasons and, where appropriate, evidence for your answers.

    A: The permission to copy with the relevant exemptions in relation to copyright, database right and defamation is essential to the successful implementation of non-print legal deposit by harvesting as proposed in these Regulations. Please see also our responses to questions 2 and 6.
  • Impact Assessments

    Impact on publishers: micro-businesses and start-ups

    14. Q: In accordance with the moratorium policy, we propose to exempt micro-businesses and start-ups from the draft regulations, except for the following measures:

    - regulation 18(1) allowing publishers, if they wish, to switch from providing a deposit library with a print version (the current obligation) to providing a nonprint version of the same work
    - regulation 21 allowing publishers, if they wish, to choose to send their webbased content to a deposit library
    - regulations 17 (3) and 23(3) allowing deposit libraries simply to copy freely available on line work from the internet, which will lead to no cost or obligation on publishers

    Do you agree that the above regulations would place no mandatory burden on microbusinesses and start-ups? If applicable, please provide evidence and a breakdown of
    your calculations.

    A: Not applicable.

    Impact on publishers: general

    15. Q: If you are a publisher, for how long do you believe works will continue to be produced in print and non-print formats?

    A: Not applicable.

    16. Q: If you are a publisher of works in print format, how much does it currently cost you to deposit these works in that format? Please provide a breakdown of your calculations, including the average number of works deposited per year.

    A: Not applicable.

    17. Q: In relation to question 16, if you are a publisher of works in print format, do you consider there will be savings in the medium to long term by being able to deposit these works in non-print format, in relation to otherwise having to deposit in print format? Please provide your calculations.

    A: Not applicable.

    18. Alternative editions
    Q: If you are a publisher who publishes the same works in print and non-print format, would you seek an agreement with a deposit library to deliver these works in the non-print format rather than the print format as currently required? What do you estimate the savings
    to be from depositing in non-print format? Please also provide an estimate of the initial set up costs for depositing non-print works, and an estimate of average annual costs (including cost per work deposited) in the medium to long term once the system has been established. Please provide a breakdown of your calculations.

    A: Not applicable.

    19. Delivery of off line works
    Q: If you are a publisher of off line non-print works, how much would it cost you to deliver these works to a deposit library? Are you already a participant in a voluntary scheme for depositing off line non-print works and if so how would the cost of depositing differ under the regulations? Please provide a breakdown of your calculations, including the average cost per work deposited.

    A: Not applicable.

    20. Delivery of on line works by web harvester
    Q: If you are a publisher of on line works with access restrictions, please estimate the administrative costs for providing relevant login details to allow web harvesting by a deposit library. Please estimate any other relevant set up costs, and the on-going costs (if any) of depositing through online harvesting in the medium to long term.

    A: Not applicable.

    21. Delivery of on line works by agreed alternative method
    Q: If you are a publisher of on line works, would you seek to negotiate with a deposit library an alternative method of delivery to web harvesting? If so, please estimate costs of the initial set up and an estimate of average annual costs in the medium to long term once
    the system has been established, including the cost per work deposited via this method.

    A: Not applicable.

    Impact on deposit libraries

    22. Q: Do you agree that our description of the impact on the Deposit Libraries, as set out in the impact assessments is accurate? If not why not? Please provide evidence and a breakdown of your calculations.

    A: Yes, we agree that the description of the impact by DCMS, as set out in the impacts assessments, on the legal deposit libraries is as accurate as it can be at this point. The legal deposit libraries worked together to provide cost information to DCMS.

    23. Q: Do you have any other comments, issues, concerns or questions? If so please can you clearly label what it is and then set it out, providing any relevant evidence.

    A: The main outstanding concern of the Bodleian Libraries of the University ofOxford is that, as the Regulations are currently drafted, restrictions on the use of nonprint materials collected through legal deposit will never expire, even when all intellectual property rights have lapsed. Unlike materials acquired through purchase
    or donation, it would not be possible to make them available more widely to the public after the date at which copyright would normally expire.

    We believe that this would not deliver the full potential value of works acquired through legal deposit for future generations.

    We can best explain this by giving a couple of examples of how we are making available material which arrived under legal deposit in past centuries. The first is the project called 'What's the score at the Bodleian?' (5) Project staff digitize scores of music, mostly for the piano, published between 1860 and 1880 for amateur musicmaking at home. The digitized versions are put on the web for interested parties to provide metadata, describing the digitized versions, providing background information or adding their own recordings or performances.

    In this instance, the Bodleian Libraries, with the help of Google, are making a littleknown and ephemeral type of material available to the public, increasing our society's understanding of its cultural heritage and its musical, social and artistic history (the illustrated covers of the scores are striking and varied, a window into another era). Professional scholars and enthusiastic amateurs participate in an exciting crowdsourcing project. Good quality digitizations of the scores are freely available, to stimulate further research in this area and provide potential entrepreneurial opportunities for business, in particular publishers.

    In another, bigger, project, we have recently made available, via our library catalogue, over 300,000 digitized versions of out-of-copyright books and periodical publications, many collected through legal deposit during the nineteenth century. Downloads during the first month of availability on the web were nearly 1,300 per day.

    If, 100 years from now, we wanted to undertake similar projects using material received digitally under the proposed Regulations, we could not do so because the
    limitations on use would not be lifted for out-of-copyright material.

    In the Government consultation on copyright (6), it 'agrees with the Hargreaves Review's premise that it should prevent copyright over-regulating activities that do not prejudice the central objective of copyright - the provision of incentives to creators'. The benefits of this approach, it continues, are to 'encourage innovation [and] provide new opportunities for economic growth', and that it gives everyone 'an opportunity to contribute to society [and does not discourage] activity that is of social benefit [...] particularly [...] with regard to public goods such as education that deliver spill over economic benefits over time'.

    We agree with this assessment and believe that the Regulations should be consistent with it.

(1) Eric T. Meyer, Arthur Thomas and Ralph Schroeder, Web archives: the future(s) (Oxford: Oxford Internet Institute, University of Oxford, 2011), 5. Accessed 15 May 2012, http://netpreserve.org/publications/2011_06_IIPC_WebArchives-TheFutures.pdf

(2) 'John Johnson Collection of Printed Ephemera', accessed 15 May 2012, http://www.bodleian.ox.ac.uk/johnson

(3) 'Whither the Humanities' in Oxford today 24 (Michaelmas Term 2011): 26-33. Accessed 15 May 2012,
http://d3gjvvs65ernan.cloudfront.net/Oxford_Today_Michaelmas_2011.pdf

(4) Efficiency and effectiveness in higher education: a report by the Universities UK Efficiency and Modernisation Task Group (London: Universities UK, 2011). Accessed 15 May 2012, http://www.universitiesuk.ac.uk/Publications/Documents/2011/EfficiencyinHigherEducation.pdf

(5) 'What's the score at the Bodleian', accessed 15 May 2012,
http://www.bodleian.ox.ac.uk/bodley/library/special/projects/whats-the-score

(6) HM Government consultation on copyright (London: Intellectual Property Office, 2011): 59-60. Accessed 15 May 2012, http://www.ipo.gov.uk/consult-2011-copyright.pdf

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