Draft response to Legal Deposit Libraries consultation

National Library of Scotland draft response: 9 December 2010

Annex A: Questionnaire

We are seeking your views on the draft regulations and impact assessments for non-print legal deposit. Specifically we would appreciate your responses to the following questions. You can answer these questions online on the Department of Culture, Media and Sport website.

Question number

Question

1.

Will these regulations provide for a meaningful national archive of non-print publications to be deposited with the legal deposit libraries? Please provide an answer for each category:

  1. Offline publications
  2. Online publications which are free of charge and without access restrictions
  3. Online publications which are subject to a charge or access restrictions.

If not why not? Please provide reasons and evidence.

The National Library of Scotland welcomes the progress made towards implementing the regulations. Since the advent of the digital age much material of national importance to the UK and to Scotland has been lost. As more and more of our national memory is held in electronic format we look forward to seeing this legislation in place in order to prevent any further loss of cultural heritage. The successful preservation of UK printed material in the National Library of Scotland is one of the most valued aspects of our work, and we are enthusiastic about the extension of this to electronic material.

The Library believes that each of the categories listed above (offline publications, online publications which are free of charge and without access restrictions, online publications which are subject to a charge or access restrictions) can be successfully preserved through the proposed regulations.

It is important to note, however, that unlike many regulations these will result in the creation of a permanent resource (the archive) and therefore the application of a sunset clause is not, in our view, appropriate.

As currently drafted, the sunset clause could put an end to the archive and any access to it upon expiry in 2018, whilst committing the legal deposit libraries to fund it forever as a 'dark archive' which it would be illegal to access. The Library therefore strongly favours the option in the Guidance material which envisages an alternative review procedure rather than complete expiry of the regulation. The Library agrees that a review of the regulation would be expedient in 2017. The review should take into account any issues with the regulations as enacted, the extent of their implementation and the resulting costs and benefits for the public, libraries and publishers.

Some of the copyright implications of the regulation are unclear and in certain interpretations there is the chance that they may be in conflict with existing UK and international law. NLS considers it important that these anomalies should be addressed and that the Scottish Government should be kept informed of the resolution of these potential legislative conflicts.

Draft regulations - Introduction

2.

Regulation 2(3) - The regulations are intended to cover all types of non-print publications.

Do you agree with this approach? If not, why not? Please provide reasons and evidence.

Yes, particularly as it is not possible to forecast what new types of format might be developed.

3.

Regulation 2(3) - The regulations provide some illustrative examples of the types of non-print publication which are covered. Are there any other examples of non-print publication which should be that should be expressly included? Please list them.

The National Library of Scotland strongly supports the regulations' coverage of ALL types of non-print publications. Any examples given should be supported by contextual comment that they are illustrative not comprehensive in scope.

Do you foresee any difficulties with the definitions which we have used? If so, please give reasons and evidence. Please suggest an alternative.

[No response]

4.

Regulation 2(3) Should we include the following in the regulations:

Offline publications?

Yes. These are currently received via voluntary deposit. While they appear to be a dwindling part of the market it is always possible that some new types of offline publications might be developed. To ensure comprehensiveness we support the inclusion of this category in the regulations.

Online publications which are not subject to any access restrictions and which are freely available?

Yes. These websites change and disappear with great frequency so we are keen to capture them for the nation. Currently the National Library of Scotland is archiving some websites with the permission of their publishers, but it is impossible to do this for more than a very small number of sites; regulation-based deposit for this category is therefore very important.

Online publications which are there is a charge or which is subject to public access restrictions?

Yes, these are the electronic equivalent of many of the print publications we currently receive, and publishers are increasingly producing these in digital format only, and abandoning print. The legal deposit libraries are building secure systems for the preservation and delivery of these publications, in order to guarantee that the publishers' rights are respected.

Electronic publications which comprise material packaged and filtered in response to an enquiry from a user? If not, why not? Please provide reasons and evidence.

Yes. This is a growing category of material. Digital publications are increasingly interactive and the impact of the end-user is significant and should be captured.

Draft regulations - Deposit

5.

Regulation5(2) - When substantially the same work is published in both print and non-print, the regulations must provide that the medium for delivery is print unless an alternative medium has been agreed between the publisher and the Legal Deposit Library.

The National Library of Scotland understands that print is the default medium for deposit, but welcomes the option for a dialogue between publisher and library concerning the medium for deposit, as strategically we are moving, as a library, from print to digital delivery.

Are there any consequences that make this impracticable? If so what are they? Please provide reasons and evidence.

[No response]

6.

Regulation5(2) - The regulations do not make provision as to the circumstances in which works are or are not to be regarded as substantially the same for these purposes as we think that this will depend on the nature of the work and will evolve over time. We also consider that this is an issue which the legal deposit libraries and the publishers can and should agree between themselves.

Do you agree? If not, please provide reasons and suggest how: (a) the regulations or (b) the Guidance should address this. Please provide evidence.

Yes, we welcome this stated aim of an agreed dialogue between publishers and libraries. We feel that a governance body to discuss such questions will be a necessary part of the process.

7.

Regulation 5(3) - When substantially the same work is published in more than one medium i.e. a word document or a pdf, the regulations provide that the medium of delivery shall be agreed between the publisher and the legal deposit library. However, the Legal Deposit Iibraries Act 2003 stipulates that we must make it clear in the regulations which medium prevails. Therefore, the regulations provide that if the publisher and the legal deposit library cannot reach agreement, it is up to the publisher to decide in which medium they should deposit the work.

Are there any consequences that make this impracticable? If so what are they? Please provide reasons and evidence.

We are keen to work closely with publishers in order to ensure that the most appropriate medium of delivery is used, without placing an undue burden on the publisher. We would therefore prefer that if agreement cannot be reached it should be possible to refer the matter to a governance body.

8.

Regulation 5(3) - The regulations do not make provision as to the circumstances in which works are or are not to be regarded as substantially the same for these purposes as we think that this will depend on the nature of the work and will evolve over time. We also consider that this is an issue which the legal deposit libraries and the publishers can and should agree between themselves.

Do you agree? If not, please provide reasons and suggest how: (a) the regulations or (b) the Guidance should address this. Please provide evidence.

Yes, we agree. Any dispute should be referred to a governance body.

9.

Regulation 13 - The quality of non-print work should be agreed between the legal deposit libraries and the publisher and should be the most suitable for preservation purposes. If agreement cannot be reached the publisher will decide upon the quality of works to be deposited.

Do you consider this the most appropriate approach? If not what do you suggest and why? Please provide evidence.

We feel that we have long-established good relationships with publishers and that agreement would in most cases be easily reached. We feel however that any dispute should be referred to a governance body.

10.

Regulation 14 - This covers online publications which are available free of charge and which are not subject to any public access restrictions. These publications must be delivered as soon as reasonably practicable after a request from a legal deposit library.

Publishers will only have to deposit once with the requesting legal deposit library and will not have to send copies to the other legal deposit libraries.

Do you agree with this approach? If not, please provide reasons and any suggestions you may have for an alternative approach. Please provide evidence.

Yes, we agree. The Library has invested in a secure digital infrastructure so that, working with other legal deposit libraries, these publications can be deposited in this way. Typically the request would be initiated by the web harvester of a single legal deposit library and then shared securely between the libraries via the legal deposit libraries' shared technical infrastructure under strict access restrictions. The web harvesting infrastructure we have piloted uses exactly this approach and we consider it to be a cost effective method of deposit.

11.

Regulation 17 - This covers online publications for which there is a charge or which are subject to public access restrictions. These publications must be delivered within three months of a request from a deposit library unless the request specifies delivery within a period exceeding three months but within the period specified.

As indicated in the Guidance, we included the possibility of a period longer than three months in order to accommodate those publishers who may need more than three months in order to meet this obligation

Regulation 18 - Publishers will only have to deposit once with the requesting legal deposit library and will not have to send copies to the other legal deposit libraries.

Do you agree with this approach and are these timings practical? If not, please provide reasons and any suggestions you may have for an alternative approach? Please provide evidence.

Yes, we agree but have some concerns about the length of time in which the request must be satisfied. Print publications received under legal deposit must be received within 28 days of the date of publication. In our view, extending this period to three months for non-print publications would affect the currency of our collections. We accept that the initial set-up period for depositing might take longer than 28 days but we believe that thereafter the time period for deposit should be amended to 28 days.

12.

Regulation 19 - A request for deposit must be made in writing (whether sent by web harvester or other means).

Are there any consequences that make this impracticable? If so what are they? Please provide evidence.

The Library believes for freely available websites and offline publications it would be impracticable any other way: as with question 11 above, the Regulation's approach gives the legal deposit libraries and the publishers a measured way of dealing with the deposit of these works.

The Library agrees, however, with the suggestion in the Guidance document that for commercial publications it would be much more practical for publisher and Library alike if requesting took place publisher by publisher, within the context of a carefully managed transition from print to digital, rather than requiring separate requests for each individual publication.

13.

Regulation 21 - This covers both online publications for which there is a charge or which are subject to a public access restriction and also online publications which are available free and which are not subject to any public access restriction. The regulation provides that the quality of the deposited work should be agreed between the legal deposit library and the publisher and should be the quality most suitable for preservation purposes. The regulation also provides that if agreement cannot be reached the publisher will decide upon the quality of the work to be deposited.

Do you consider this the most appropriate approach? If not what do you suggest and why? Please provide evidence.

We are keen to work closely with publishers in order to ensure that the most appropriate quality for preservation purposes is used, without placing an undue burden on the publisher. We would therefore prefer that if agreement cannot be reached it should be possible to refer the matter to a governance body.

Draft regulations - Permitted activites

Providing access to the relevant material

14.

Regulation 23 - This provides that access to the same non-print work is restricted to one display terminal at any one time in each of the legal deposit libraries. Therefore the same non-print work can only be viewed on a maximum of six display terminals at the same time as there are only six legal deposit libraries (including Trinity College Dublin). This mirrors the system for printed publications whereby a maximum of six copies of the same work are available for readers across the six legal deposit libraries.

Do you agree with this approach? If not please give reasons and suggest an alternative. Please provide evidence.

We are in favour of the way in which this mirrors the situation in the print environment. The National Library of Scotland is most willing to achieve this proposed model of single concurrent use, as is the Library of the Faculty of Advocates. We believe this model should provide reassurance to publishers.

15.

Regulation 24 - This provides that a legal deposit library may not allow access to a deposited work if a publisher has requested an embargo for a period not exceeding three years from the date of the request. The deposit library may not refuse the request if the publisher has shown that on a balance of probabilities, viewing by a reader would conflict with the normal exploitation of the work and unreasonably prejudice the legitimate interests of the publisher.

Regulation 27 - This provides that an embargo may be extended. Do you agree with this approach? If not please give reasons and suggest an alternative. Please provide evidence.

The National Library of Scotland has concerns about the requirement for a regulation to be put in place concerning embargoes. In the print environment embargoes are used very rarely and for a limited period. We would prefer that the digital environment should mirror the current situation with print embargoes and that the guidance document should make clear the Government's expectation that embargoes are only appropriate in exceptional circumstances.

Research and private study

16.

Regulations 29 and 30 - A legal deposit library may only provide a print copy of an article or part of a work unless permission has been given by the publisher for the legal deposit library to make a copy in another medium.

Do you agree with this approach? If not please give reasons and suggest an alternative. Please provide evidence.

The National Library of Scotland is surprised that digital copying under the widely accepted fair dealing restrictions would not be permitted under the regulations as drafted, especially as our submission to the Legal Deposit Advisory Panel was that digital copying could be managed via strict technical controls.

The regulations also appear to be inconsistent with the key primary and secondary legislation relating to fair dealing for non-commercial research and private study, namely the Copyright, Patents and Designs Act 1988 as amended, and the Copyright (Librarians and Archivists) (Copying, etc) regulations 1989 [SI 1989/1212]. NLS considers it important that these anomalies should be addressed and that the Scottish Government should be kept informed of the resolution of these potential legislative conflicts.

We believe that the public will also be surprised and disappointed that digital copying, albeit under closely controlled protocols, will not be permitted. We consider that this issue should be prioritised for review at the appropriate time.

Visual impairment

17.

Regulation 31 - This regulation sets out the circumstances in which a legal deposit library may make an accessible copy of a deposited work and the conditions which apply.

Do you agree with this approach? If not please give reasons and suggest an alternative. Please provide evidence.

The Library supports the spirit of this copyright exception, but is concerned that it appears to be more restrictive than the current legislation in this field, namely as set out in the Copyright, Patents and Designs Act 1988. NLS considers it important that these anomalies should be addressed and that the Scottish Government should be kept informed of the resolution of these potential legislative conflicts.

Copying and adapting for preservation purposes

18.

Regulations 32 and 33 - These regulations set out the circumstances in which a legal deposit library may copy or adapt copies of deposited works for preservation purposes and the conditions which apply.

Do you agree with this approach? If not please give reasons and suggest an alternative. Please provide evidence.

The National Library of Scotland supports the spirit of this copyright exception.

Disposing of copies of deposited works

19.

Regulation 34 - This provides that a deposit library may dispose of duplicate works by destroying them, but may not destroy all copies of the deposited works. This regulation also provides that the deposit library must retain the copy or copies of the deposited works which it considers most suitable for preservation purposes.

Do you agree with this approach? If not, please give reasons and suggest an alternative. Please provide evidence.

The National Library of Scotland agrees with this approach.

Draft regulations - Exemption from liability

20.

Regulation 35 - This regulation sets out the circumstances in which exemptions from liability apply and thereby define the geographic scope of the works and publishers covered by the regulations.

Do you agree that the regulations should only cover publications which are from publishers based in the United Kingdom and also published in the United Kingdom?

If not, please give reasons and suggest an alternative. Please provide evidence.

No, the National Library of Scotland is concerned about the change in wording from the key legislation, namely Section 10(5) of the Legal Deposit Libraries Act 2003 and section 44A of the Copyright, Patents and Designs Act 1988, which provide that the exemption applies if the publication of the work on the internet, or a person publishing it there, is connected with the United Kingdom.

However Regulation 35 is worded: '...an online publication which is connected with the United Kingdom and published by a person connected with the United Kingdom is a work of a prescribed description.' It is not clear whether a statutory instrument can change primary legislation in this way. Its net effect would be to remove from the exemption works published in the United Kingdom by a publisher who does not use a fixed establishment in the United Kingdom. The Library's proposed solution is to revert from 'and' to 'or' to maintain consistency with the primary legislation.

21.

Regulation 36 - Do you agree that the regulations should NOT cover works which are accessible to readers based in the United Kingdom unless they are published in the United Kingdom by publishers based in the United Kingdom?

If not, please give reasons and suggest an alternative. Please explain your position.

Please see question 20.

22.

Guidance: section 8

We have suggested that for online works which are free of charge and without access restrictions (which will normally be requested via a web harvester), the legal deposit libraries should assume (unless told otherwise) that a publisher:

  • - is based in the United Kingdom; and
  • - is publishing from the United Kingdom;

if:

  • - the publisher has made it clear on its website that it is based in the United Kingdom, has provided its trading location in the United Kingdom and is based in the United Kingdom for the purposes of the e-Commerce Directive; or

  • - the publication is available from a website with a top level UK domain name.

In the event that these assumptions prove incorrect, the publisher could refuse the deposit request by blocking the web harvester.

Other websites may be within scope but will need to be asked directly.

Do you agree with this approach?

The Library will work in partnership with publishers through a transparent governance mechanism with an independent appeals process to ensure that UK legal deposit is implemented fairly in the digital domain. But please also see question 20 above.

We have suggested that, for an online publication for which there is a charge or which is subject to a public access restriction, the test for what amounts to a UK publisher should be based upon the location of who decides to publish the work. How do you think this approach can work in practice?

We agree that the location is the right criterion, and we feel that any disagreement should be referred to a governance group. But see also question 20 above.

Do you agree that, for online publications from UK based individuals who do not have a trading address, the legal deposit libraries should find a way of directly asking the publisher whether they are based in the United Kingdom? If not, please give reasons and suggest an alternative. Please provide evidence.

Yes, we agree.

Impact assessment

23.

Do you agree with the impact, as set out in the impact assessments, for the deposit libraries? If not why not? Please provide evidence and a breakdown of your calculations.

Yes we agree; and we regard this activity as a core responsibility.

24.

If you are a publisher who currently deposits publications in print would you change to depositing non-print works instead? Would this prove to be more economical for you in the (a) short; (b) medium; or (c) to long term? Please state if you are a small, medium and or large business.

Not applicable

25.

If you are a publisher, how much does it currently cost you to deposit print works? Please provide a breakdown of your calculations. Please state if you are a small, medium or large business.

Not applicable

26.

If you are a publisher, how much will it cost you to legally deposit non-print works? Please provide an estimate of the initial set up costs for depositing non-print works. Please provide a breakdown of your calculations and when you estimate you would recover these costs? Please state if you are a micro, small, medium or large business.

Not applicable

27.

If you are a publisher who only produces non-print publications and are therefore not currently depositing publications, but will become subject to the regulations because you will be required to deposit non-print works, please estimate the initial set up and ongoing costs for doing this. In particular please provide an estimate of your costs for depositing any of the non-print works covered by the regulations (offline and online non-print works). Please provide a breakdown of your calculations. Please state if you are a micro, small, medium or large business.

Not applicable

28.

Do you agree with the impact as set out in the impact assessments for publishers? If not, please give your reasons providing evidence for your conclusions. Please state if you are a micro, small, medium or large business.

Not applicable

29.

If you are a publisher, do you consider there will be savings in the medium to long term by being able to deposit electronically? Please provide your calculations. Please state if you are a micro, small, medium or large business.

Not applicable

30.

If you are a publisher, for how long do you believe works will continue to be produced in print and electronic form? Please state if you are a micro, small, medium or large business.

Not applicable

Ireland

31.

The 2003 Act allows for non-print works to be deposited with Trinity College Dublin (TCD). The 2003 Act is clear that we should not extend legal deposit to TCD unless the Secretary of State is satisfied that restrictions on use of the material under Irish law are not substantially less than in the UK. We are still awaiting information from Ireland on this issue and we do not propose to extend the regulations to cover Ireland until we have this comfort. However, for the purposes of the consultation, we consider that the most prudent course is to include TCD as a legal deposit library in the draft regulations.

Are there any points which you would like make on this issue? Please include, if possible, any evidence with your answer.

We believe that the regulations should be drafted in such as way as to ensure that TCD is included now or in the future. The National Library of Scotland wishes to see the continuation of the current valued reciprocal arrangements with Ireland.

Other

32.

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.

The National Library of Scotland would be very willing to participate in a governance arrangement for the implementation of the regulations which fairly represented the views of the libraries, the publishers, the creators of content, and the user community.

Information from the Department of Culture, Media and Sport:

Information provided in response to this consultation, including personal information, may be published or disclosed in accordance with the access to information regimes (primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 1998 (DPA) and the Environmental Information Regulations 2004). If you want the information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory code of practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence. In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the department.

The department will process your personal data in accordance with the DPA, and in the majority of circumstances, this will mean that your personal data will not be disclosed to third parties.

The consultation is guided by the Government's Code of Practice on Consultation.

Regulation 2(3) - The regulations provide some illustrative examples of the types of non-print publication which are covered. Are there any other examples of non-print publication which should be that should be expressly included? Please list them.

The National Library of Scotland strongly supports the regulations' coverage of ALL types of non-print publications. Any examples given should be supported by contextual comment that they are illustrative not comprehensive in scope.

Do you foresee any difficulties with the definitions which we have used? If so, please give reasons and evidence. Please suggest an alternative.

[No response]



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