Any legal deposit program raises a certain number of questions that need to be carefully looked at to ensure that the scheme will meet its objectives, both for the present and for the future.

4.1 Origin of the Publication

The origin or place of publication of each item is an essential consideration when forming a national collection. Countries normally limit legal deposit to their national production of publications issued under various formats. The basic publication details, such as origin or place of publication, issuing agency and publishing date, are therefore important data to consider in deciding whether to include an item in the legal deposit scheme. Some countries claim publications from all authors, printers, publishers and importers in the country.24 France, for example, requires that printers deposit two copies, while publishers must deposit four copies. From a strictly legal point of view, a legal deposit law can only apply within the boundaries of the country, since a national law cannot apply on an extraterritorial basis. Therefore, if a country wishes its residents publishing abroad to deposit copies of their work with the national depository institution, it has to specify in the law that residents are subject to legal deposit regardless of where their works are published. As far as citizens living abroad are concerned, the national deposit library has to acquire their works through regular acquisition processes.

Within the electronic environment, and more specifically with on-line material, the question of national production raises an interesting legal deposit issue. Whereas the "nationality" of a print publication is easy to determine and cannot be argued, since it is not problematic to identify the physical location where a work is "published," it is more difficult to determine the origin of an on-line publication and to decide which legal deposit law should apply. Several countries can be involved as sites for production and distribution of an on-line publication, and while the publication may be stored at a single location on the global network, many countries might claim a legal deposit right. In a report prepared in 1996 for the European Commission, J.S. Mackenzie Owen and J.v.d. Walle recommended that "The nationality of an electronic publication should be established using the following criteria (in order of significance): geographic location given in the publication or its accompanying metadata, the location of the publishing organization if it can be established, the domicile of the first author, the author's nationality, or the primary location of the publication on the network."26

4.2 Comprehensiveness

Comprehensiveness is an important quality to analyze since it is the fundamental one on which the whole system is based. The key question is what materials should be subject to the legal deposit requirement. Whereas those Lunn calls the traditionalists assert that everything should be claimed in order to avoid losing that apparently insignificant material that could later assume historical value,27 other considerations should be taken into account. Space and staff available, technical and technological capabilities as well as legal issues might limit the extent of comprehensiveness for very good reasons.

The law governing legal deposit should be as broad as possible in order to be flexible and should also include provisions to make exceptions. The wording should be more inclusive than exclusive. This would permit the inclusion of any new type of information carrier made available. As an example, recent legislation on legal deposit uses words such as "document" instead of "book" or "publication," and "producer" in place of "publisher."

In general, any type of library material, regardless of the format, as long as it is made available to the public and produced in multiple copies, should be an object of legal deposit. Legal deposit therefore applies to all types of print material (books, serials, pamphlets, maps, etc.), to most audio-visual material (sound recordings, discs, videos, films, multimedia kits, microforms, etc.) and to electronic material.

The history of legal deposit has demonstrated that print material, as well as most non-print material, can be handled without any major problems within any legal deposit scheme as long as the legislation has been well planned, and is flexible and enforceable. The new electronic or digital environment, however, is challenging the fundamental precepts of legal deposit, including comprehensiveness. While there is agreement that off-line electronic publications, such as diskettes and CD-ROMs, should be subject to legal deposit since they correspond to the traditional format of print material, mainly the relation to a physical support, there is no agreement on how to treat on-line material. Some argue that on?line electronic material, such as networked databases, is not meant to be preserved for future use since it is continuously updated (in real time) and therefore it should not be deposited. Others argue that such material should be deposited, but at the time it is removed from the network so that it can be stored off-line in a deposit collection. Still others suggest that at least snapshots should be taken on a regular basis in order to avoid losing valuable historical information. Another consideration is the fact that even if a depository library wants to preserve on-line publications, and the legislation provides the right to do so, there might be situations where the depository library cannot handle the material within its technical environment or the technology is just not there to store on-line material. However, it should be remembered that the national depository libraries still have a long-term preservation responsibility in spite of the difficulties raised by the electronic environment.

Irrespective of the arguments brought forward and all the expected technological problems, as a matter of principle, all electronic publications, both off- and on-line, should be subject to legal deposit. As more and more materials of national cultural value are now made available either simultaneously in print and in electronic format or only in electronic format, it is imperative to make sure that such material is preserved for posterity. The only way to get such a guarantee is to ensure that national legislation on legal deposit includes electronic publications. There is no reason for a legal distinction between electronic and non-electronic publications. Furthermore, despite their best intentions, commercial producers of electronic publications cannot guarantee that they will preserve or archive their material when it has lost its commercial value. It is also important to ensure that the national legal deposit collections include all electronic publications as they are made available in order to avoid losing material that otherwise could eventually be inaccessible because of an obsolete technology. While there is no doubt that many aspects of the legal deposit of electronic publications are problematic and necessitate major investments in information technology resources and personnel, there is a certain urgency to the matter of developing efficient and practical methods of long-term preservation of electronic documentation.

It is obvious that despite the incredible development of information technology, especially at the networking of information level, the national legal deposit collections of electronic publications will develop on a gradual basis, as the national institutions responsible for legal deposit are not able to cope with new developments at the same pace as the information producers. Already countries such as Canada, Denmark, Finland, France, Germany, Japan and Norway have included provisions in their legal deposit laws to include electronic publications. Most of them are limiting legislation to off?line materials such as CD?ROMs and diskettes, but some countries such as the Netherlands and Finland are including on-line publications.

Finally, comprehensiveness raises the issue of the retrospective collection of both print and non-print material. Since in most countries, legal deposit is implemented on a gradual basis as new categories of material are added, there is always material that has not been collected because it was produced prior to the legal deposit legislation coming into force. As a matter of legislative principle, a law with a retroactive effect is exceptional and should be avoided as much as possible. The need to build up a complete national collection of published material cannot be considered as an "exceptional" situation. Also meriting consideration is the fact that the producer of the materials may no longer exist or the actual piece of information may no longer be available, two circumstances that would make a retrospective legal deposit law impossible to enforce. To develop a complete national collection, the depository library therefore has to undertake a systematic acquisition program for retrospective material, based on a voluntary deposit approach or on standard acquisition methods, namely purchase, gift or exchange.

4.3 The Depositor

Current legal deposit laws generally require that all producers of materials subject to legal deposit should deliver copies to the national institution responsible for the implementation of the law. Some countries, such as France, require that all documents published, produced, printed or distributed, whether commercially or not, be deposited by the publishers, producers, printers or distributors. If imported books are claimed, the obligation to deposit may rest with the importer. In countries where there is a direct relation between copyright and legal deposit, the owner of the copyright could be the one responsible for delivering the copies.28 To make sure that all material published is deposited, it is important that "publisher" be defined as broadly as possible so that commercial and private publishers are included and, whenever legally possible, government publishers as well. It is also important that the definition include producers of any type of non-print material, including both tangible and intangible electronic publications.

Again, it should not be too problematic to identify the producer or publisher of static or tangible electronic publication, but it might be difficult to determine one specific, homogeneous group as the producer of an on-line database. The responsibility for legal deposit for such material could belong to the "owner" or "distributor" of the on-line database.

4.4 The Depository

In most countries, it is the national library that is responsible for legal deposit. In some countries, another national institution, such as the Library of Congress in the United States or the National Diet Library in Japan, is called upon to play the role of national depository of legal deposit materials. In other countries, France and Sweden for example, other governmental organizations are involved in the legal deposit of particular materials. In France and Sweden, audio-visual materials (films, sound recordings, etc.) are deposited in national institutions that specialize in the collection of such items and that are able to provide more suitable accommodation and experienced staff. In France, it is the Centre national de la cinématographie and the Institut national de l'audiovisuel, whereas in Sweden it is the National Film Archive. Some countries require delivery of copies to other institutions as well as the one mainly responsible for building up the national legal deposit collection. As an example, the British Library is only one of six libraries entitled to receive a copy of every print item published in the United Kingdom. While British publishers are under a legal obligation to deposit published materials with the British Library, the five other libraries - the national libraries of Scotland and Wales, and the university libraries of Oxford, Cambridge, and Trinity College in Dublin - must each request that the same publishers send them a free copy of any eligible title. Another example is Finland, where statutory legal deposit collections of print material are maintained in five university libraries and in the parliamentary library.

While there is no legal problem in decentralizing legal deposit within a jurisdiction and such a decision could help spread the burden of administering the law, it must be remembered that "the scattering of collections may, however, be inconvenient to the user seeking information from a variety of media and sources. Moreover, in the interests of uniformity of policy and its application, of standardization of bibliographic records, and of publication of the national bibliography, very close co-ordination and co-operation would be necessary."29

As far as the digital environment is concerned, it is evident that the depository institutions responsible for collecting, recording and organizing print material have a major leadership role to play in developing the national framework or infrastructure for the development of a national collection of electronic publications. Whenever a law is amended it is important to include electronic publications, so that the role of the national depository institution will be reinforced to give it the necessary legislative powers to enforce the legal deposit legislation in a digital environment.

4.5 Number oF Copies

In order to ensure that copies are available for preservation and for use by researchers having access to the national collection of legal deposit material, a minimum of two copies should be deposited. However, the number of copies deposited varies widely. As already mentioned, British law calls for six copies, one for the British Library, and the others for five university libraries involved in the legal deposit scheme. Sweden and Norway require that seven copies be deposited. The People's Republic of China legal deposit law requires that five copies be deposited with the National Library and that two others be sent to the copyright library. France requires that publishers deposit four copies with the Bibliothèque nationale de France and one with the Ministry of the Interior. It is interesting to note that in France, the printer is also under obligation to deposit copies: two copies with each of the 30 authorized libraries of the 22 regions in metropolitan France (among them the Bibliothèque nationale de France for Île-de-France) and eight regions in the overseas departments and territories. Latvia also requires a rather high number of copies, with 20 being requested.

While the law or the regulation establishes as a general rule the requirement that a certain number of copies be deposited, this number could be reduced for certain types or categories of materials. As an example, for expensive publications, such as art books, limited editions or motion pictures, only one copy might be requested. Another possible approach is to determine the number of copies to be deposited in relation to the number printed. In Canada, for example, two copies must be deposited when 101 or more copies are made, and only one copy when more than three but fewer than 101 copies are made. Such a measure is a means of avoiding undue financial burden on the publishers. There is no basic rule in this area. As explained by Crews, "the decision to increase the number of copies depends on practical and economic factors. Lawmakers must evaluate the effect of additional deposits on publishers and on their ability or willingness to comply. Lawmakers also must evaluate each library's ability to contend with additional copies and the accompanying staffing and storage expenses."30

For electronic publications, the issue of the number of copies is still in question. For on-line material, the issue is the number of accesses or concurrent users. Some producers already had problems acknowledging the benefits of legal deposit of print material; they are also reluctant to accept legal deposit of electronic publications. As stated by Mackenzie Owen and Walle, "Publishers are reluctant to acknowledge the benefits of deposit; they tend to view it as an obligation which costs money with little return. In addition, they envisage problems with electronic publishing which also pertain to electronic deposit. Two major issues are: electronic information on networks and on diskettes can easily be manipulated. It is difficult to guarantee integrity and authenticity, both of content and of appearance. This problem is less apparent with CD-ROM publications. The other issue is that it is very easy to reproduce and distribute electronic information; therefore it is not easy to prevent unfair use and to ensure that copyrights are respected."31

Deposit libraries are quite sensitive to the producers' concerns and, as a matter of principle, most deposit libraries agree that access to publications should be controlled. While on-site consultation within a controlled environment within the deposit library should satisfy most producers and permit multiple concurrent users, remote access is more problematic, and finding solutions will necessitate more research and pilot projects. As a general rule, legislation on legal deposit should include the principle that access be limited. The number of concurrent users should be limited, just as the number of physical items to be deposited is.

4.6 Compensation

As a matter of principle, legal deposit should be free since its objectives are to serve the public interest, mainly to ensure the preservation and the availability for future generations of the intellectual record of the nation's economic, social, scientific and educational activities. Over the history of legal deposit, compulsory deposit of multiple copies has been a concern to publishers, especially when the number of copies has been increased. Even if legal opinion on this issue is not unanimous, when the number of copies to be deposited is limited, the principle is generally accepted. As stated by Lunn, "unpaid deposit has, notwithstanding undeniable if not excessive opposition, worked well for centuries."32 But this should not prevent countries, as is the case with Japan, from having a compensation system whereby a publisher could be paid the equivalent of the cost of producing the publication.

Some countries, such as Belgium and France, acknowledge publishers' concerns by limiting the number of copies for deluxe or limited editions. As a sign that it understands the financial concerns of publishers vis-à-vis legal deposit, the deposit library could make a policy decision to pay the full market price of a second copy of deluxe or limited editions. But such an arrangement should not be part of the legislation and should depend on the financial situation of the national legal deposit institution.

4.7 Time of Deposit

The period of time allowed for deposit varies. It ranges from twice a year, in Denmark, at one extreme to the day of availability to the public at the latest, in France, at the other extreme. Between these two extremes, South Africa has a 14-day dispatch rule (i.e. the item must have been mailed or sent by another means within that period), and Canada has a seven-day deposit requirement. Finland requires that deposit be completed within two months and Indonesia, three months.

While there is no general rule, it is recommended that the deposit take place as soon as possible. As noted by Lunn, "the earlier the deposit the better, both to meet the needs of users seeking new publications and to permit prompt listing in the national bibliography."33 Another reason for ensuring early deposit is that some publications go out of print quickly, and any delay in depositing material could mean the material will never be collected.

24. Council of Europe, Council for Culture Cooperation, Culture Committee, Guidelines on Library Legislation and Policy in Europe (Strasbourg,, 1999) at 23.
25. Supra note 1, at 4.
26. J.S. Mackenzie Owen and J.v.d. Walle, Deposit collections of electronic publications (Luxembourg, Office for Official Publications of the European Communities, 1996) at 22.
27. Supra note 1, at 4.
28. 17 U.S.C. '407(a).
29. Supra note 1, at 17.
30. Supra note 10, at 564.
31. Supra note 26, at 16.
32. Supra note 1, at 21.
33. Ibid. at 13.