Introducing electronic legal deposit in the UK

One of the greatest of Lynne Brindley’s achievements during her twelve years in charge of the British Library was to remain steadfastly true to the Library’s aim, shared with the other UK copyright libraries, of extending the law of legal deposit to encompass publications in digital form. This article casts a retrospective and sometimes rueful eye on the whole process of achieving this legislation, and another eye to the future, in an attempt to identify some of the critical factors that underlie electronic legal deposit in Britain and that will influence its further development.

Introduction

Being responsible for a national library is not a task for those who favour rapid results. Planning calls for the foresight of an Old Testament prophet, and execution requires the patience of Job. Of this truth there is no better recent example than the effort to introduce electronic legal deposit in the UK.[1]

One of the greatest, and possibly the least noticed, of Lynne Brindley’s achievements during her twelve years in charge of the British Library was to remain steadfastly true to the Library’s aim, shared with the other UK copyright libraries, of extending the law of legal deposit to encompass publications in digital form.

Most of the story of how this aim was realized, despite almost every possible impediment and disappointment on the way, has been told elsewhere (Field, 2004; Milne and Tuck, 2008; Gibby and Green, 2008; Gibby and Brazier, 2012). The current paper will cast a retrospective and sometimes rueful eye on the whole process, and another eye to the possible future, in an attempt to identify some of the critical factors that underlie electronic legal deposit in Britain and that will influence its further development.

A brief summary

Plans for a new law of legal deposit to enable the five UK legal deposit libraries[2] to begin collecting electronic as well as print publications were first drawn up in 1996. It has therefore taken seventeen years to achieve a working scheme, with the coming into force of the Legal Deposit Libraries Regulations on 6 April 2013.[3] This extraordinarily lengthy period might be divided into two phases, corresponding to Homer’s two epic poems, the Iliad and the Odyssey. The Iliadic phase culminated in the successful passage through Parliament of the Legal Deposit Libraries Act 2003, after a difficult and adversarial process of negotiation between the ‘Greeks’ – the British Library, the other legal deposit libraries and their allies – and the ‘Trojans’ – publishers and others sceptical or cautious about the effects of the extension.

The 2003 Legal Deposit Libraries Act[4] established the principle of electronic legal deposit and the legal protections needed by the libraries to allow them to collect on a large scale. On the other hand it placed severe restrictions on the actions of the libraries, especially in giving readers access to their collections, and it constituted only an ‘enabling’ Act, in that it required a further piece of subordinate legislation to give practical effect to its provisions and to enable the libraries to begin work.

Therefore as soon as the Act became law, Lynne Brindley and her fellow Copyright Librarians immediately faced a further challenge of ensuring that it was followed by satisfactory ‘Regulations’. So began the ‘Odyssean’ phase of the campaign: an apparently interminable sea journey, beset by metaphorical whirlpools, clashing rocks, one-eyed giant and sorceress. For a long period the ship was becalmed, as a body called the ‘Legal Deposit Advisory Panel’ spent some years coming to few firm conclusions, before finally the current UK government became convinced that action had to be taken and the shores of Ithaca came into sight.

The Regulations as enacted finally allow the libraries to begin collecting, storing and giving limited access to most electronic publications of the UK. It now becomes possible to recognize some of the emerging key features of the e-legal deposit landscape, and some of the ‘unfinished business’ for the future.

The anthropology of legal deposit

Any outside observer could not help but notice a remarkable and consistent feature of the development of e-legal deposit in the UK: the adversarial relationship between librarians and publishers.

In part, this mutual suspicion – sometimes bordering on hostility – is the result of a natural tension between the owners of financially valuable intellectual capital and those instinctively in favour of free, unimpeded public access to knowledge. It is also true that the UK is home to one of the largest and most economically significant publishing industries in the world: much is at stake. Moreover, it is an industry on the defensive, as the barriers to publishing reduce and open access to knowledge advances: defensiveness often breeds aggression, and it is no surprise that newspaper owners, who are under most market pressure, proved the least tractable interlocutors. One suspects, too, that the antipathy has deep-seated historic and geographically specific origins: after all, publisher-library relations are much closer and more amicable on continental Europe, and indeed in the UK outside England.

Nevertheless, our observer would find it hard to understand the rational basis for some of the publishers’ objections and doubts about how e-legal deposit would work. Most suspicion centred on how readers will gain access to electronic publications. The 2003 Act ruled unambiguously that access could take place only on the premises of the deposit library: networking across the internet was outlawed. The threat to their commercial interests was therefore virtually non-existent, but the publishers persisted in trying to place ever more severe restrictions on use, including copying by readers: digital copying is banned by the Regulations and printed copying heavily restricted.

It was always in the commercial publishers’ interest to maintain that they were representative of most electronic publishers. In fact the reverse is true: the vast majority of e-publishers – almost all of those captured by a web crawl – are non-commercial. For them ease of public access is a benefit, not a threat. Their lack of representation has been a problem in the formation of e-legal deposit, and may prove to be so again in future.

However, the passage of the Regulations does represent a rapprochement between the two sides. Indeed, the provisions rely for their effectiveness on libraries and individual publishers cooperating in order to secure the deposit of some types of electronic publications. They also leave many of the details of implementation, including collecting policy and technical security, to the Joint Committee on Legal Deposit, the main library-publisher liaison body.

The role of government

The 2003 Act originated in a Private Member’s Hand-out Bill[5] and, although the Bill would not have succeeded without the support of the government at the time, the commitment of successive governments and their civil servants to implementing the Act has tended to fluctuate over the years.

The passage of the Act was followed in 2005 by the establishment of a non-departmental public body, the Legal Deposit Advisory Panel, charged with advising the Minister on future regulations. This must have seemed like a rational solution at the time. The Panel consisted of equal numbers of library, publisher and ‘independent’ representatives, with an independent Chair. However, it soon became bogged down in conceptual uncertainty (see Finding the Right Conceptual Model below), hampered by over-bureaucratic structures and dogged by conflicts between the librarians and the publishers, with the independents uncertain of their role. At this point Lynne Brindley played a crucial role in persuading the then Labour Government to breathe new life into the process. The Panel reported, then ceased, and the task of preparing regulations was brought back ‘in house’ within the Department for Culture, Media and Sport.

Waves of ‘compliance’ measures, originating elsewhere in government, caused further delay. Impact assessments, as many as three public consultations, ‘better regulation’ rules, and European Union directive checks: all these and more needed to be negotiated before the draft Regulations could be laid before Parliament.

This stage was reached, one suspects, as a result of a number of factors, including astute and intelligent work by civil servants, diplomatic activity behind the scenes to reduce conflict, and a certain battle fatigue on all sides. Thanks are due to the current government for seeing the Regulations through to enactment: a small measure for politicians, a large one for libraries and their users.

Finding the right conceptual model

One of the hardest problems for members of the Legal Deposit Advisory Panel in thinking their way towards regulation was how to devise a conceptual framework to deal with the very large and diverse universe of electronic publications – so different from the limited, tidy and familiar world of print publications.

Some of the objects to be found in the new world were familiar enough: e-journals paralleled print journals, and e-books were beginning to make their appearance. Others, though, were stranger: websites, blogs, datasets and many others, some only just emerging. Following their normal instincts the librarians immediately began to attempt to impose a classification on these disparate creatures, as a preliminary to drafting a set of regulations, each dealing with a separate group.

Slowly the Panel members awoke from their self-imposed Circe-like spell. In 2008 they commissioned David Powell of Electronic Publishing Services to conduct a review of the e-legal deposit ‘universe’ and devise a classificatory framework (Powell, 2006). Powell advocated an alternative taxonomy. This recognized that the earlier approach had been futile: it would have led to a never-ending process, since more material types are constantly being invented, so that more and more regulations would have been needed. The new framework, on the other hand, could be expressed in a single set of Parliamentary regulations. This new taxonomy ignores the types of e-materials; it is based instead on the machinery by which the materials are collected or deposited. There are just four categories in the final Regulations:

• Offline, hand-held objects: collected or deposited physically
• Websites and open-access e-material: harvested by means of an automatic crawler
• E-material hidden behind pay-walls or authentication barriers: collected by the libraries with the help of the publisher’s ‘key’
• E-material deposited directly by the publishers.

The shining virtue of this framework is that it is hospitable to new material types and avoids the need for further regulations in the near to medium future.

Although this was the major conceptual difficulty, there were other tangled problems that needed to be solved. The question of ‘territoriality’ – what was meant by ‘published in the UK’ – provoked much discussion between librarians and publishers, as did the meaning of ‘library premises’ as the sole place for readers to consult electronic publications, the salience of ‘audio-visual’ material in websites and the extent of the restriction of (disallowed) concurrent use by readers.

Organising ourselves

The ten-year delay in transforming the Act into Regulations had one very serious result. It meant that during the decade 2003–13, years when electronic publishing grew into a large-scale activity, very few publications were being collected and preserved by the libraries.[6] But it also had one advantage: it gave the libraries ample time to plan how they were going to collect material, what they would start to collect, and how public access might operate.

Two principles became clear: first, that of the five libraries only the British Library possessed the resources to plan and deliver a system of the scale and complexity that would be needed to deal with millions of deposited items, and second, that any such system would need to be a single, shared one: it made no sense for each library to develop its own separate collection, following the long-established print model.

It was clear too that whereas the three national libraries shared a natural interest in all aspects of electronic legal deposit, the primary interest of the two academic libraries, Cambridge and Oxford, lay in just one: securing access to the resulting collection for their readers. It was therefore the National Library of Wales – the National Library of Scotland joined later – that signed an agreement with the British Library in 2006 to create a shared technical infrastructure reliant on what was termed a ‘network of self-replicating nodes’. These nodes – connected, secure servers designed to contain identical copies of the common collection – are located in St Pancras and Boston Spa (British Library), Aberystwyth and Edinburgh. This arrangement allows all three libraries to select material for inclusion in the collection. A later agreement between all five libraries determined how each library would contribute financially to the developed system.

Although the British Library has been responsible for the technical development of the system, the planning of policies and procedures has been done cooperatively by all the libraries, thanks to a stable set of committees and to two highly successful joint appointments, an overall Legal Deposit Libraries’ Manager and a specialist technical Project Manager.

Unfinished business

The birth of electronic legal deposit in April 2013 was a beginning – but only a beginning. It will be some years before a state of ‘collection equilibrium’ has been reached. Some procedures and technologies are still in their infancy. Relationships with publishers, critical for some collection methods, need time to develop trust and maturity.

There is also ‘unfinished business’: unsatisfactory (from a library and a user perspective) features of the current electronic legal deposit regime that will need to be challenged in future. The most significant of these are:

• The libraries’ inability to allow extramural, networked access to non-commercial material that was never intended to be locked up in buildings
• The ban on readers making any digital copy of a deposited work
• The exclusion of sound and moving image material, unless incidental to the work in question: it is anomalous that material must be ‘still’ to be eligible for legal deposit
• The imposition of what is effectively ‘perpetual copyright’ on works collected, a decision entirely contrary to government efforts elsewhere to liberalize the law of copyright.

Since the Government has promised a review of the Regulations after the initial period of their operation it should be possible to debate these deficiencies in the light of experience.

In the meantime the deposit libraries’ task, in collaboration with publishers, is to make the Regulations work, and to realize fully what has always been the fundamental aim of legal deposit, to record the intellectual output of the countries that make up the United Kingdom.

Acknowledgements

The author wishes to thank Avril Jones and Richard Gibby for their helpful comments on a previous version of this paper.  The final version appeared in Alexandria, vol. 23, no. 3, 2012 (Festschrift for Dame Lynne Brindley), p.103-109.  Many thanks to Manchester University Press for permission to make available this version of the paper.  Thanks to Robert Fludd (1574-1637) for the illustrations.

References

Field, Clive (2004) ‘Securing digital legal deposit in the UK: the Legal Deposit Libraries Act 2003’. Alexandria, 16(2), pp. 87–111.

Gibby, Richard and Brazier, Caroline (2012) ‘Observations on the development of non-print electronic legal deposit in the UK’. Library Review, 61(5), pp. 362–377.

Gibby, Richard and Green, Andrew (2008) ‘Electronic legal deposit in the United Kingdom’. New Review of Academic Librarianship, 14(1–2), pp. 55–70.

Milne, Ronald and Tuck, John (2008) ‘Implementing e-legal deposit: a British Library perspective’, Ariadne, 57, October, http://www.ariadne.ac.uk/issue57/milne-tuck (visited 20.3.13).

Powell, David (2006) ‘Refining the map of the universe of electronic publications potentially eligible for legal deposit’. Unpublished report. London: Electronic Publishing Services.