5.1 Print Material

5.1.1. Books

As the original object of legal deposit, books are included in the legal deposit legislation of all jurisdictions. It is important to clearly define what is considered as a book, since such a term can be very inclusive. The broadest definition is undoubtedly the Canadian one, which states that a "book means library matter of every kind, nature and description and includes any document, paper, record, tape or other thing published by a publisher, on or in which information is written, recorded, stored or reproduced."34 The definition might therefore need to include an "exclusion" list of material not to be deposited. Among the criteria to consider is the number of pages: Belgium, as an example, excludes publications of fewer than five pages. Material might be excluded when the print run is very small or the item is not for general distribution. As an example, in Canada, books printed in fewer than three copies do not have to be deposited. Material of very limited research or bibliographical value, such as owner's manuals, price lists timetables for transportation services, colouring and cut-out books for children, might also be excluded. As recommended by Lunn, the law should make it clear "that residual power is with the list of inclusions, so that everything is subject to deposit unless specifically excluded."35 However, it should be remembered that an adequate infrastructure is required to process and list all items for a national bibliography.

Another aspect to consider is to make sure that the legislation clearly specifies that variations in content, language and/or form of the same book should be deposited. As stated by Lunn, "books may be issued in various editions, revised, corrected, enlarged, abridged. Obviously editions thus varying in content should be treated as new works, subject to all requirements of the deposit law. Translations, the same work appearing in different languages, must of course be subject to deposit as new and separate publications."36 A decision also has to be made regarding the variations in the form of a book. While the content may not vary, the form might, the same work being issued in a trade edition and in a deluxe edition, in hard cover and in soft cover, in pocket book format, in microform and in some cases in Braille or as a talking book on tape or CD. It is very important that the law be explicit with respect to any special conditions that may attach to any of these forms. As an example, if the law specifies that two copies have to be submitted it could perhaps specify that in the case of a deluxe edition only one copy has to be deposited. Impressions and reprints also have to be dealt with. The law must specify whether only the first printing of a book has to be deposited, or whether new impressions (i.e. reprints without alterations) should be deposited as well. Facsimile reprints of works long out of print should undoubtedly be subject to legal deposit.

Electronic monographs are now a reality, and national legislation for legal deposit must therefore include the proper provisions to ensure that this new medium will also be preserved for future generations. At present, most titles are also available in a print edition, but already some titles are only available electronically. One of the major issues that will have to be analyzed is how the material will be accessed. For off-line material, the procedures of deposit should be quite similar to those for print material. Such material will have to be accompanied with appropriate instructions for use. But on-line material will have to be either sent in directly by the publisher or downloaded by the national institution responsible for legal deposit. This way of accessing material is raising serious copyright questions, since it is agreed that downloading is reproduction. Other questions to consider will be the number of concurrent users and the possibility of mounting the off-line documents on local area networks within the national legal deposit institutions. Other situations that will have to be looked at are publishing on demand and e?books. Some already say that when such material is being made available on the market, it should be considered as "published" and the legal deposit legislation should reflect that. Such publishing does correspond to the criteria of a legal deposit system. Technically speaking, it could mean that the database of e-books would have to be deposited with the national depository institution or downloaded from the publisher's server and kept up-to-date as new titles are added. This raises a very interesting question: would it be possible to "order" an e-book from the national collection instead of from the server of the publisher? Most copyright laws, if not all, would consider such an activity as an infringement of copyright. Since the national deposit collection is built up for research and consultation purposes as well as for preservation, users of the national legal deposit institution should normally have free access to e?book databases, just as they have free access to all other parts of the national deposit collection. Copyright and legal deposit laws might have to be amended accordingly and appropriate exceptions granted. If e-book databases are deposited and kept up-to-date for preservation, the issue of access to such a commercial database by the users of the national legal deposit institutions will have to be carefully analyzed with regard to copyright legislation. It will be necessary to make sure such access does not violate the provision of the Berne Convention (Section 9(2)) prohibiting the introduction in a national copyright act of an exception that conflicts with the normal exploitation of the work or unreasonably prejudices the legitimate interests of the author.

5.1.2. Serials

Serial publications constitute the biggest part of any collection of library material. The number of new titles published each year is impressive. Serial collections are also an invaluable research source, both for current and historical information. Legal deposit of serial material is therefore an important component of any deposit scheme.

Serials include all types of publications issued periodically, even on an irregular basis. They therefore include journals, newspapers, law reports, directories, lists, indexes, annual reports, loose-leaf services, newsletters, etc. To enable the deposit institution to build up a comprehensive national collection of serials, the legal deposit legislation has to require that each and every issue of every title be deposited. Such a requirement obviously calls for an efficient organization, including sufficient staff and space. As an example of the efficiency needed, a claiming system has to be put in place to make sure that all issues are delivered. Another example is the handling of the numerous updates of the loose-leaf services. This kind of publication is a useful research tool as long as it is kept up-to-date. Comprehensiveness is the ideal to be reached for, but this should not preclude considering the possibility of identifying some exceptions for materials that might be considered as ephemeral. While it is extremely difficult, not to say hazardous, to decide on the contemporary or historical research value of an item, the question should at least be raised. As an example, should all annual reports of companies and/or commercial organizations, mainly containing financial data, be deposited? Should all newsletters of all organizations, mainly containing ephemeral information, be submitted? There are no standards to be followed or even recommended, since the answer ultimately depends on the philosophy of the national program of legal deposit. In France, as an example, even if the legislation is rather inclusive, the Bibliothèque nationale de France does not collect and retain everything, such as publicity material and some types of loose-leaf. A compromise solution for such material could be to require that the first issue be deposited for recording in the national bibliography, but that subsequent issues not be sent in. Canada has such a policy for most print newspapers.

The phenomenon of electronic journals and e-books also has to be taken into account. Some electronic journals and e?books replicate in electronic format the existing print material, and others exist only in electronic format. The first question to be asked is whether they are subject to legal deposit. The answer will depend on the original definition of material to be deposited. If it has been restricted to "print" documentation, the legislation has to be amended. But if the definition has purposely been made broad enough to include any type of written material, there might not be a need to revise the legislation. The second element to consider is the type of support: if the material is made available off-line, such as on a CD-ROM or a diskette, it will be quite easy to include in the legal deposit collection, as is the case now in many countries. But if it is available only on-line, there are numerous issues to look at, some technical - such as compatibility of in-house systems to support the access protocols - and some purely organizational - such as the physical set-up of the work stations allowing access to the material.

Finally, the economic component will have to be examined carefully, as there are financial considerations for the e-journal providers and e-book publishers that cannot be ignored. It must be remembered that the new information and publishing technologies require a large investment by the publishers and that it is only normal that they would want to protect their investment. Considering that technological developments now permit a journal article to be available worldwide when a single copy has been put on a server in a national legal deposit institution, the publishers want to make sure that access to their deposit material will be controlled. But the objective of accessibility to the national deposit collection cannot be ignored either. A citizen wishing to access the national collection of deposited e-journals for private research should be able to do so without having to pay. The principle of free access to the national deposit collection must apply within the electronic environment, as it applies within the print environment.

5.1.3 Pamphlets and Offprints

Pamphlets should be deposited, even ones containing a minimum number of pages. Whereas on one hand, Belgium excludes from deposit publications of fewer than five pages, on the other hand, Canada has not established any criteria based on minimum number of pages. But as so rightly mentioned by Lunn, "the comprehensive indiscriminate claiming of pamphlets is, however, likely to net a quantity of trivia and ephemera."37 As an example, the enormous amount of publicity folders of all sorts could easily become a nightmare to administer.

Another category to look at is offprint. Defined as extracts from books and periodicals, they should not be subject to legal deposit. Again as stated by Lunn, "The work is already available in the publication from which it is extracted, much of it can be located through periodical and other indexes, the processing of numerous small items is time-consuming, they may not be worth listing in the national bibliography if they are author's offprints, few in number and not available for general distribution."38 But some consideration might have to be given to offprints that have been repaginated and issued for public distribution, as well as to ones that are part of a series.

5.1.4 Music Scores

Printed music is an important part of a nation's cultural heritage and should be systematically collected and preserved through legal deposit. Because of its nature, sheet music should be considered as a separate type of material.

5.1.5. Iconographic Material

Iconographic material, such as posters, broadsides, photos, post cards, engravings, etc., is an important element of a country's culture and represents a valuable research tool. Some countries, such as France, include such material as part of their legal deposit requirements. It is important to remember that legal deposit deals only with "published" material (i.e. reproduced in multiple copies and made available to the public) and does not, by definition, consider "archival" material (i.e. a unique item, not available for public distribution and more of a personal or private nature). The distinction is important with iconographic material, which often includes archival material. When considering whether to include iconographic material in a legal deposit scheme, serious thought has to be given to the substantial number of items involved and to the related storage and recording problems.

5.1.6. Government Publications

Government publications, also known as official publications, are part of the legal deposit scheme in most countries, even if they are not always part of the general legislation covering legal deposit. Depending on such factors as the nature of the state, centralized or not, the constitutional requirements, such as the Crown or executive privilege, the organization of the administration, for example whether government publishing is done by a government agency or by commercial publishers on behalf of the government, there might be a need for separate legislation or a different legal instrument to include government publications within the legal deposit program of a country. While some countries, such as Japan, the Philippines and Nigeria, include deposit of government publications in their main legal deposit law, others, such as Poland and the United States, have other legislation to cover the legal deposit of official publications. It should be noted that often, for example where a federal system of government is in place, the central government cannot impose legislative requirements on the constituent governments. In these cases, it is through administrative arrangements based on the good will of the parties that constituent government publications may be made part of the national legal deposit scheme. Canada is a good example of this, where provincial and territorial government publications are sent to the National Library by means of a variety of administrative arrangements.

The question of municipal publications has to be looked at in a similar way. As noted by Jasion, "A sector of government publishing which is rarely included specifically in legislation is that of municipal or local government publications. Japan specifically refers to them, as do several states of the USA, though many do not. Canada specifically excludes them from national deposit. If we presume that local government is a basic unit of democracy, then the information produced by local government should be made available and be preserved, not just for local use, but for the nation as well."39 Very often the reason for not including municipal publications is a legal and constitutional one. The separation of legislative powers in countries with a federal system might prevent a national institution from imposing an obligation of deposit on organizations that are under the jurisdiction of another level of government, as is often the case with municipal governments. As a general guideline, it could be recommended that municipal publications should be collected and preserved at the level of government that has the legislative power to vote a law to this effect.

In many jurisdictions, the government is the most prolific publisher, from the point of view of both the number of titles and the variety of material produced. Monographs on all subjects, periodicals of all categories (journals, law reports, parliamentary papers, monographic series, statistical reports, etc.), audio-visual material, maps and pamphlets are all part of any government publishing program. And today, governments are often acting as leaders in electronic publishing. More and more government publications, mainly reports and studies, are now made available electronically, including some e-journals. As well, more and more parliamentary papers are also being made available electronically, both off-line (CD-ROM) and on-line. As many countries are in the process of revising their legal deposit legislation in order to adapt it to the new electronic publishing environment, a recommendation of Mackenzie Owen and Walle, made in their study on deposit collections of electronic publications, is of major interest. Their recommendation is that "Priority should be given to publications by 'official' publishers."40

Not including government publications in a national legal deposit scheme would be depriving the nation's cultural heritage of an important component.

Finally, while the collection, preservation and bibliographic control of the publications of intergovernmental organizations (from the United Nations to the World Trade Organization) are extremely important from both a research and long-term preservation point of view, these publications cannot be subject to national legal deposit according to the rules of international law. Following international agreements, such as the 1975 Vienna Convention on diplomatic relations and individual specialized agency conventions, as well as headquarters agreements with countries, international and intergovernmental organizations enjoy immunity from every form of legal process. Known as the immunity from jurisdiction, such a provision is quite comprehensive and covers all property and assets of the organizations, including their publications. Considering the tremendous amount of material published by the intergovernmental organizations for so many years now and the extensive use being made of electronic formats, there is an urgent need to raise the issue of an "international legal deposit scheme" in order to preserve and ensure long-term availability of this particular category of material.

5.1.7. Maps

Since the scope of legal deposit legislation should include all materials of possible research and/or bibliographic interest for the present and/or the future, maps undoubtedly should be included. However, not all countries are systematically collecting, recording and preserving them. Whereas most countries will include maps published in a book format, such as an atlas, a limited number of countries include separate maps in their legal deposit scheme. Algeria, France, South Africa, Spain, Switzerland and the United States (as government publications) do. Mostly produced by governments, maps are more and more being commercially produced as well and made publicly available.

The handling of maps within a legal deposit scheme requires expertise from both a recording and a preservation point of view. Their research value is indisputable and they are definitively part of a nation's historical heritage; they therefore should be preserved as such. However, as for audio-visual material, it might be more efficient if the responsibility for collecting, recording and providing services to users were delegated by the legal deposit institution to another national organization more specialized in the handling of maps and geographical information and data.

Many of the legal deposit issues concerning maps are related to new mapping technologies and are quite similar to those concerning other digital databases and electronic publications. But GIS (Geographic Information System) software, which merges automated mapping and database management capabilities to provide users with personalized, comprehensive spatial information, is raising specific legal deposit problems, to the point of putting the future of large-scale mapping production in question. Because users are able to develop their own individual maps by using the data stored on a server, the issue is to decide on the legal deposit status of such a database of spatial information and of the maps as downloaded. First, whereas with on-demand publications, the product resulting from the "order" of a book from a server already exists as an "intellectual" separate entity within the server, a map does not exist as an "intellectual" separate entity until an individual gathers data from a server and creates a map using the appropriate software. And second, the map is produced in a very limited number of copies, often only one copy and often for personal research use, not for public distribution. Such a system almost makes it irrelevant for an organization, governmental or commercial, to publish maps any more. But if such a database is not preserved within a national legal deposit institution or through another legal mechanism, invaluable and irreplaceable data will be lost. And as with other databases, the need for a retrospective archive of digital maps for historical purpose is still there. A certain number of studies are currently being conducted and initiatives taken, namely in the United Kingdom and Denmark, to preserve electronic maps on CD-ROM, diskette or the Internet. But as in many other areas of legal deposit of electronic material, time is becoming a major issue: there is a serious risk that information will be lost forever while analysis and pilot projects are going on.

As a matter of principle, the database - and not the products derived from it for personal use - should be subject to legal deposit. But as discussed in Chapter 6, databases made up of raw data (i.e. unorganized data that could be used to select, gather and structure information to create a separate independent intellectual entity) should not be object of legal deposit.

5.1.8. Other Types of Material

In principle, any print material may be of contemporary or historical value. That said, however, acquiring all printed matter could be an uncontrollable process that would make it impossible to handle all the material received and result in getting trivial and ephemeral material. It is, therefore, important at an early stage to clearly identify and to properly define the types of material to be deposited and to evaluate the practical consequences of the decision. France, for example, has a very broad definition, including engravings, post cards, posters, plans, maps, musical scores and photographs, with a very limited list of exclusions. On the other hand, Canada, which also has a broad definition of a "book," has a list of 26 exclusions that limit its definition.

As already discussed in the comprehensiveness section, decisions relating to the level of comprehensiveness have to be taken keeping in mind various considerations, such as staff, space, budget and legal or philosophical issues. The point is that a country has to make decisions in order to be able to live with its definition of materials to be deposited.

5.2. Non-Print Material

This is a category that is taking on more and more importance in library collections. It presents particular problems, mainly related to the fact that each different medium calls for special conditions.

5.2.1. Microforms

Publication of microforms is defined as the production of a microform master from which copies can be made, such copies being offered to the public. Micropublications are usually reprints of works already published, but they may also be original works published solely in microform. The microform edition should be subject to deposit, as are editions of books that vary in form but not in content. The original microform should also be subject to legal deposit, like any other original work. The depository should be free to specify the deposit of microform editions instead of one or more copies of the original print edition, for example when requesting newspapers. The law should include all the technical specifications required for deposit. The law should also make it clear that "microform" includes all varieties, films, cards, fiches, etc. Care should be taken to collect microform reprints of government publications, often produced by private firms by arrangement with government, and to claim university theses often published in microform only.

5.2.2. Audiovisual Material

Sound and visual recordings, separate or combined, should also be collected, recorded, preserved and made available for research, as part of a country's cultural property and national heritage. They should, therefore, be subject to a legal deposit requirement whenever it refers to material made available to the public and intended to be heard or seen, regardless of the numbers of copies produced. It is important that the legislation establish a clear distinction from "archival" material, which includes original documentation not made available for general distribution and more of a private nature, such as photographs. Broadcast material, both radio and television should also be subject to legal deposit. Intended for public reception and/or consumption, broadcast material is not considered by many countries as archival material any more, but rather as material that falls under the criteria of a legal deposit scheme. As stated in the United Kingdom Report of the Working Party on Legal Deposit, "there is no logic in the exclusion of television production from a legal deposit system; its omission both contradicts the aim of comprehensiveness and threatens a huge and anomalous gap in the maintenance of an audio-visual national archive. Some might argue that television output has become the most vital and important part of our moving image heritage in terms of contemporary culture and historical record keeping. Television is not, in any case, an alien or separate medium; it is simply another means of publishing moving images."41

Audio-visual material differs from traditional written publications mainly because of the need to use specific equipment to have access to the recorded information, but also because of the susceptibility of both the information carrier and the equipment to technological change or obsolescence. While this will also be a problem with electronic documentation, it is even more critical with audio-visual material, because of the numerous formats involved. Audio-visual documentation includes materials such as discs, CDs, tapes, slides, films, videotapes, videodiscs and multimedia kits. Examples of such problems of obsolescence include the Beta/VHS videocassette format and the eight-track cassette.

Because of the great variety of formats and the specific handling and preservation problems related to each one, the legal deposit legislation should clearly define which types of audio-visual material will be covered and include as well an exclusion list, if any material is to be excluded. As with books, all different formats should be deposited. For example, if a sound recording is produced as a CD and as a cassette, both formats should be deposited. There is no common approach to audio-visual material for legal deposit purposes. Whereas some countries, such as France, cover almost all categories of audio-visual material, including radio and television programs created and/or broadcast within the country, Denmark refers to sound recordings (music and speech), films and video games, photography, Braille and combined publications. Canada has a fairly unusual arrangement for the Canadian content of sound recordings. Excluded from legal deposit are sound recordings that are only manufactured or distributed in Canada, but have no Canadian content or major Canadian contributor such as a composer, artist, narrator, conductor, orchestra, performer, writer or producer.

As a general rule, it is recommended that "the material shall be deposited by the producer, editor, or distributor of the audio-visual material having his headquarters or habitual residence with the country, irrespective of any co-production arrangement made with a foreign manufacturer."42

As with all library materials, there are important issues related to copying for preservation purposes, but these issues are accentuated when dealing with audio-visual material. As already mentioned audio-visual materials are fragile and need special treatment for long-term preservation, including in some cases a transfer to another support. Since a general right to make copies for preservation purposes is not considered as an exception in international copyright treaties and does not appear as well in many countries' national legislation on copyright, each country will have to determine whether a provision for copying for preservation purposes is required in the legal deposit or copyright legislation Also to be taken into consideration is the potential for any researcher to have easy access to the legal deposit collection and to be able to make a copy of the audio-visual material for personal research use.

The digital environment is drastically transforming access to audio-visual material, raising new technical, organizational and legal problems related to legal deposit. A good example is multimedia-networked publications, which can be made up of text, sound, pictures, music, moving images, etc. Each of the elements, as well as the multimedia work itself, may be protected. In order to collect such works, a national legal deposit institution needs to access them, and in order to access them, it might have to reproduce them. As already mentioned, making a copy of a protected work requires permission, which is granted through a licence or a legislative exception.

Another problematic area is the advent of systems which digitally encode music. Such systems enable music to be sent over the Internet. Musical sound recordings can now be made available in a standard format (CD, tape) or on the Internet, or both. As for electronic publications, legal deposit legislation should include provisions ensuring that such material is subject to legal deposit; therefore, copyright issues related to the reproduction of such material should be dealt with.

Finally, the question of decentralizing legal deposit of audio-visual material should be examined. Some countries involve more than one national institution in legal deposit of audio-visual material. The ever-increasing amount of material and the diversity of formats to be deposited and preserved, along with the complex problems related to organizational, technical and legal issues, require more specialized personnel, equipment and physical facilities. Material will all be collected on the basis of unique legal deposit legislation, but with decentralized implementation. In France, for example, the Centre national de la cinématographie et l'Institut national de l'audiovisuel are involved with legal deposit of audio-visual material, while the Bibliothèque nationale de France is responsible for all print material. To achieve efficient results with such an organizational set-up, a sound communications infrastructure and a good deal of inter-institutional co-operation are required.

5.2.3. Other Non-Print Material

A deposit law can include virtually anything a country wishes to collect and preserve. Some countries require deposit of medals, coins, banknotes, stamps, etc. But in general, legal deposit is usually assumed to be associated with library materials and the depository assumed to be a library. As a matter of principle, legal deposit should not be concerned with archives and museum material.

34. Supra note 19, at s. 2.
35. Supra note 1, at 3.
36. Supra note 1, at 5.
37. Supra note 1, at 7.
38. Supra note 1, at 6-7.
39. Supra note 7, at 15.
40. Supra note 26, at 22.
41. United Kingdom, "Report of the Working Party on Legal Deposit," on-line: Department of Culture, Media and Sport http://www.culture.gov.uk/LDWGRPT.htm (date accessed: 22 December 1999).
42. Birgit Kofler, Legal questions facing audiovisual archives (Paris, Unesco, 1991) at 32.