In most countries, legal deposit is a matter of legislation that takes into account the country's publishing environment and traditions. Whenever a voluntary instead of a legislative route is chosen, it is necessary to ensure that the voluntary deposit system is based on the traditional objectives, including free and unconditional access to the material.

Considering the objectives of a legal deposit system and the requirements of a formal legislative structure to achieve them, a certain number of legal questions have to be carefully examined when developing a legal deposit scheme. The first is to decide on the legal route that will be favoured to implement the program. If the compulsory approach is chosen, the form of the legal obligation will have to be determined. It could be a stand-alone legal deposit law, such as in Belgium, the Dominican Republic, France, Iran, Latvia and South Africa. It could be part of another law, such as the national library act (China and Japan) or the copyright act (Australia, Great Britain, Ireland, Mexico, New Zealand and the United States). While the act will establish the basic principles of legal deposit, it will usually be accompanied by regulations or another type of legal instrument that will specify the details of the system, such as the categories of material to be deposited, the number of copies, the exceptions, etc. Governments can also issue decrees or any other form of statutory order requiring the deposit of published material (Ivory Coast, Lebanon, Lithuania and Philippines). The legal instrument chosen depends on the legal system in place in that jurisdiction. If a country decides to go with a non-statutory deposit arrangement through voluntary deposit agreements with publishers, as in the Netherlands, all issues will have to be covered by the terms of the agreements, and the legal framework will be the one related to contracts.

It is much more preferable for a legal deposit scheme to rest on a separate and specific legal deposit law enacted by the national legislature. This will avoid the situation of major changes being made to a scheme following simple administrative decisions and without the public debate that an amendment to an act would normally require.

The legal deposit scheme should be established at the national level and as a national responsibility. However, this should not prevent countries where the legislative powers are divided among various levels of governments from having more than one legal deposit system in place. In countries with a federal structure, for example, there could be more than one law related to legal deposit - Australia, Canada, India, Switzerland and the United States are good examples. This could have an impact on the publishers, who will be required to deposit copies in more than one institution.

A very important question related to the implementation of legal deposit legislation is the issue of enforcement. To be effective, a law must be enforceable, and to be enforceable, a law must include a penalty if contravened. To rely on good will to ensure the comprehensiveness of deposit collections could be risky and might necessitate a complex administrative structure. With a penalty structure, pressure is placed on the depositor to comply. A fine for non-compliance is the usual enforcement mechanism used.

While the fine should be substantial enough to support the legal deposit requirements, it should not be unreasonable; otherwise, the law may be challenged in court as going against the principles of free expression. In France, for example, the fine for not complying with legal deposit ranges up to F500,000.18 In Canada, the maximum fine is C$25,000 for a publisher and C$2,000 for an individual.19 In the United States, it could reach US$2,50020 and in South Africa, it should not exceed R20,000.21

It must be stressed that the use of such penalties should really be a last resort. Close co-operation between the national institution responsible for legal deposit and the publishers, as well as all the other information producers, is much more desirable and beneficial for all parties involved. It is essential that the documentation providers be informed about the legal deposit legislation and be convinced of the advantages to them of complying: increased visibility and wider publicity for their publications, better bibliographic control and a long-term guarantee of availability of their published material. The long-term guarantee of availability can be useful for the depositors themselves, in cases where the originals have been lost or destroyed.

The "copyright deposit" issue has to be looked at separately. As already mentioned, in many countries the early legal deposit collection was built up through the "copyright deposit," whereby copyright could not be claimed unless copies of the book had been deposited. Even if fewer jurisdictions are taking this route, it may be considered for practical or administrative reasons. But before taking this approach, it is important to verify which of the two main international copyright legal instruments, the Berne Convention or the Universal Copyright Convention, the country is signatory to. The Berne Convention requires that copyright protection be available without any formalities,22 and therefore the deposit of copies cannot be compulsory. If the country has signed only the Universal Copyright Convention, it can include formalities, such as deposit, in its copyright legislation. Also to be considered is the fact that copyright deposit does not permit the requiring of material for which copyright is not sought; therefore, a parallel acquisitions scheme is necessary. Since legal deposit and copyright legislation are aiming at two different objectives, the one at preservation for posterity and the other at protection of rights, as Lunn stated, "logically there is no reason why legal deposit for libraries should have any association with copyright."23 But this should not prevent a country from including legal deposit within its copyright legislation, as in the United States and the United Kingdom, as long as legal deposit is not linked to obtaining copyright protection. Section 407(a) (2) of the United States Copyright Act clearly states that the deposit requirement is not a condition of copyright protection, while Section 15 of the 1911 United Kingdom Copyright Act, which is still in force, requires that "the publisher of every book published in the United Kingdom shall, within one month after publication, deliver, at his own expense, a copy of the book to the trustees of the British Museum."

An issue that is closely related to copyright is the need for national legal deposit institutions to make copies for preservation purposes and/or for future use, which may conflict with the national copyright legislation in force. This issue is particularly critical in the non-print environment, where either the fragility of the support itself or the obsolescence of the equipment to use it may oblige the institution to reproduce the material. Two very good examples of such cases are the Beta videocassette format and the 5¼-inch diskette. Even with print materials, where the issue of preservation could be solved by making sure that two copies are deposited, one for preservation and one for use, there might be instances where the preserved copy is damaged or lost. But because copyright gives an author the exclusive right to authorize the reproduction and dissemination of a work, such activities can be performed only by the copyright owner unless formal permission is granted through a licence or a legislative exception. Although some jurisdictions, such as Australia, Canada, Great Britain and the United States, among others, have provisions in their copyright legislation allowing libraries to reproduce protected works that have been lost or damaged and are no longer available on the market, no country provides legislative permission to make backup copies of all types of library material in anticipation of need. Therefore, there might be a need to revise the copyright legislation to include a provision allowing copying for preservation purposes. Another option could be to include a notwithstanding or derogation clause in the legal deposit legislation allowing reproduction of a protected work for conservation purposes, regardless of format and despite the provisions of a copyright act that does not permit it. A notwithstanding or derogation clause is a partial repeal or abrogation of a law by a later act that limits its scope or impairs its utility and force. Most legislative drafting experts agree that such a clause should be used with extreme caution to avoid leaving an impression of contradiction on the part of the legislator. The use of such clauses to permit the making of copies should be on an "exception" basis.

The copyright issue will also be critical when looking at the legal deposit of electronic publications. As publishers and information producers are becoming more concerned about the facility offered by new technologies to access and reproduce published material, they might be reluctant to get involved in a legal deposit scheme without some assurance that their intellectual property rights will be respected. It is obvious that they will fear uncontrolled dissemination of their material and may want to protect their legitimate commercial interests by providing only limited access. But limiting a researcher's access to electronic publications to the premises of the legal deposit collection will greatly reduce accessibility compared with that of traditional materials and, in the end, defeat the benefits of remote access.

There are two major problems related to legal deposit of electronic or digital material vis-à-vis copyright. The first is related to the deposit process itself. The legal deposit of electronic publications necessitates the reproduction of protected works. (Exceptions are the off-line carriers, where deposit procedures are quite similar to those for print material, and the cases where publishers/producers of digital documents "deposit" their documents themselves by sending them through the network at the national legal deposit institution.) Since digital material might have to be collected through downloading from the master copy on a server, the process raises the issue of permission to reproduce a protected work. Again, national copyright legislation or legal deposit legislation should provide legislative permission to reproduce documents for legal deposit purpose.

The second issue to deal with is access. Considering that it is widely recognized, at both the national and international level, that a copyright owner has an exclusive right to communicate a protected work to the public and that most electronic publications need to be "communicated to the public" in order to be seen and read, the deposit copy of such electronic publications might require a specific exception allowing access to the clientele of the national legal deposit institution.

Another important issue to look at when planning legal deposit legislation is the language of the law and the writing style used. While it is obvious that the national tradition and the historical rules and guidelines of each jurisdiction should always prevail, there might be some basic considerations applicable to all. A law is a form of communication that is unique, considering its consequences. It is imperative that the language and the writing style used to perform such a particular way of communicating meet certain standards. It must be remembered that legal deposit legislation is imposing an enforceable duty on individuals who have the right to know and understand what they are being asked to do.

A good legal writing style should have the following characteristics: it should be accurate, well-structured, clear and easy to read and concise. The fundamental rule is to avoid ambiguity and vagueness. A legal text will necessarily be interpreted and it is important that the intention of the legislator be identified. Legislative texts are designed to confer rights, privileges or powers, or to impose obligations or duties, or to prohibit something. The importance of a good legislative text is therefore quite obvious. It should contain three basic elements. First is the legal subject, which is a clear identification or description of the person or class of persons affected by the law: are only publishers affected by the legal deposit act? Are individuals publishing their own material subject to the law? Are all categories of publishers included or only the ones corresponding to certain criteria? The second element is the legal action, which includes a description of the legal action or the legally significant impact that will result from the law: where should the copies be deposited? How many copies should be sent? The third element of legislative text is the case, which refers to a description of the circumstances or the conditions under which the law will apply: if a book that meets the identified criteria is published, it must be deposited.

Most of the time, the text of the law will be written by an expert legislative drafter. But the national library or the legal deposit national institution should be heavily involved in the planning of the legal deposit legislation to ensure that all aspects of the program will be covered.

Another legal issue, and one that is seldom looked at when considering a legal deposit collection, is the question of whose property it is. The law should clearly state that the collection is an integral part of the country's cultural heritage and that the sole owner is the national institution responsible for maintaining and preserving it. A good example of such a clear statement of property is contained in Canada's National Library Act. Section 3(2) states that "Every book placed in the case of custody of the National Librarian or delivered to or otherwise acquired by the National Librarian pursuant to this Act, otherwise than by loan, is vested in Her Majesty and forms part of the Library." But it should be made very clear to both the national legal deposit institution and the publishers that ownership of the collection does not mean ownership of intellectual property rights. A related property issue is the right of the depository to dispose of certain categories of material under certain conditions. The legislation should include a commitment by the depository that all possible and reasonable efforts will be made to permanently keep all material deposited, but the legislation should also include a right of disposal.

Finally, a legal issue that is important to consider when preparing legal deposit legislation is the possible conflict with other laws. The two best examples of such a problematic situation relate to pornographic material and hate literature. Even if most countries have laws forbidding the publication, production, distribution, circulation and possession of such material, any such material should be subject to legal deposit. Since both pornographic and hate material may be found on carriers subject to legal deposit (books, periodicals, videos, etc.) and is also extensively available in electronic format, it is worth considering the issue. One of the basic elements of this discussion is the fact that the issue deals with the values of society, which vary from one country to another and from one period to another. One of the objectives of a national legal deposit scheme is to build up a comprehensive collection of published material for preservation and research purposes, and not allowing such material to be deposited might jeopardize the historical and sociological value of the national collection as the prevailing standards of tolerance evolve. From a strictly legal point of view, unless the legal deposit legislation clearly states that such material is not subject to legal deposit, it should be deposited. But after it has been deposited, the depository will have to comply with its jurisdiction's legal requirements with respect to access to material deposited.

1. Loi no. 92-546 du 20 juin 1992 relative au dépôt légal, J.O., 23 juin 1992.
2. National Library Act, L.R.C. 1985, c. N-11, s. 13(4).
3. 17 U.S.C. '407(d).
4. Legal Deposit Act, South Africa act no. 54, 1997, s. 9.
5. Supra note 14.
6. Supra note 1, at 22.