The Department indicates that it is concerned with -
a proposed model to extend the legal deposit obligation in section 201 of the Copyright Act 1968 in relation to material deposited with the National Library of Australia (the National Library). Existing obligations to deposit print-based library materials under section 201 are not under consideration.The proposed scheme is similar to that in several countries and in practice would enshrine the NLA's PANDORA web publishing initiative (which has involved the Library gaining permission from copyright owners and thence archiving chunks of the web, including several hundred thousand words by the author of this blog).
In 2007, the Attorney-General’s Department and the then Department of Communications, Information Technology and the Arts released the 2007 Discussion Paper on the Extension of Legal Deposit. That paper sought views on extending legal deposit to electronic material, broadcasts and audiovisual material and on the National Film & Sound Archive of Australia (NFSA) also being made a repository institution for legal deposit.
This current paper is focussed solely on a proposal for an extended scheme in the Copyright Act for the National Library and is without prejudice to further consultation to be conducted by the Office for the Arts on legal deposit of audiovisual material to the NFSA.
The nine page consultation paper indicates that the proposed scheme
distinguishes between offline physical format electronic publications and online electronic publications. Essentially, the current mandatory deposit obligations would be extended to physical format electronic publications, while online electronic publications would be subject to a deposit on demand basis.Under the new regime the NLA would have authority for statutory deposit of "physical format electronic publications" (eg those on DVDs or CD-ROMs). Publishers would be required to provide the NLA with a free copy without a Technological Protection Measure (TPM).
A reason for making a distinction between two classes of electronic publications is that this recognises the differences between material in a physical form and material in a virtual form and tailors the deposit requirements accordingly. It also implements a selective scheme for online material, recognising the large volume of material that is potentially eligible for inclusion in the legal deposit scheme.
The proposal encompasses selective but mandatory archiving and electronic provision by the NLA of "online electronic publications on a selective basis". The paper indicates that -
• On notification from the Director-General of the National Library, the publisher making the material available online would be required to deposit.The paper sensibly notes that -
• Where the material is made available online, subject to access controls or a TPM, the publisher will be required to deposit the material unencumbered.
• In deciding categories of electronic material that will be subject to new deposit obligations, the Director-General will need to consider a range of factors including cultural importance and collecting priorities.
Material of this kind includes: scholarly e-journals, e-magazines, ephemeral publishing such as e zines, online newspapers, e-books, blogs, websites, and conference proceedings.
A reason for restricting deposit requirements to a deposit on demand basis is that it would be impractical to place a deposit obligation on all publishers on the internet. The current requirement in section 201 applies to ‘published’ library material. Under copyright law, ‘published’ means a work has been ‘supplied to the public’. In the context of the internet, most works made available online without restrictions may be considered ‘published’ for the purposes of the Copyright Act. As such, an unrestricted obligation to deposit electronic material would fall on nearly all users that place material online. This would result in the collection of an excessive amount of material and would raise significant compliance and administration issues.Who would have access to the publications that the NLA has scraped? The paper succinctly indicates that "As with the current scheme, public access to material deposited through legal deposit would be subject to the relevant provisions of the Copyright Act". There;'s some vagueness about NLA plans to make the electronic publications available outside its Canberra premises, although the state libraries, university libraries and other venues are likely to argue for 'controlled' access through their premises. The paper notes that -
Public access to deposited material: In 2007, a number of submissions argued that in order to avoid potential conflict with the commercial interests of publishers, access to deposit material should be restricted. However, libraries and library associations argued that access should be in keeping with existing copyright provisions. It is proposed that the National Library will be able to be make deposited material available to the public within the existing copyright framework for libraries and archives.The paper concludes with a reference to penalties -
Use of deposited material by the National Library: It is proposed that the National Library may use deposited material in accordance with relevant exceptions to copyright in the Copyright Act (such as preservation copying).
The current scheme imposes a penalty of $100 on any publisher that does not provide the National Library with their library material within one month. Under an extended scheme, a similar penalty provision, perhaps expressed in penalty units, would apply where a publisher does not deposit within a specified period.
