The first issue to look at is the definition of the material to be deposited. The definition has to be as inclusive as possible to ensure that electronic publications are covered regardless of the type of carrier. If the current law of a country does not include them, it should be amended in order to clearly specify that they are covered. Since more and more material is being made available only in electronic format, it is important to act as soon as possible to avoid losing track of valuable material forever. Because information technology evolves rapidly, it is essential to make sure that the definition is worded in such a way that amendments will not be necessary each time a new mechanism or technique for providing information is made available. The best definition of material to be deposited is undoubtedly the South African one, which defines a "document" as "any object which is intended to store or convey information in textual, graphic, visual, auditory or other intelligible format through any medium, and any version or edition of a document which is significantly different from that document in respect of its information content, intelligibility or physical presentation, is considered to be a separate document; a medium means any means of recording or transmitting information intended for subsequent reading, listening or viewing."43

There are two main categories of electronic publications that should be included in legal deposit legislation. The first is "off-line" or tangible publications, which are made available on a physical data carrier such as diskettes and CD-ROMs. They are sometimes also identified as "packaged electronic publications." Since these are distributed as individual physical objects, their legal deposit process is quite similar to that of printed products. But the legislation should specify that they are to be deposited together with any associated software manuals and accompanying material needed to enable them to be used. It should also be made clear that any new version or update to the original diskette or CD should be deposited. The other category is "on-line" material. This type of material is characterized by the fact that it exists only as a unique copy that is stored on a computer host system or a worldwide collection of computer systems (Internet). Whereas in the printed and off-line environment, one of the conditions of legal deposit is the existence of multiple copies available for public distribution, in the on?line environment, there is one single copy owned, stored and controlled by the publishers/producers. The real challenges for legal deposit libraries lie with the on-line media. The range of types of on-line publications is increasing as technology evolves. It varies from the independent and complete unit that is stored in a database accessible only through a controlled access code and password, to the Internet website that allows the user to make up his/her own natural resources digital map. It includes e-journals and multimedia materials that can be easily accessed on-line and personal e-books that can be ordered only from a master copy available from the publisher's database.

The so-called "dynamic electronic publications," including databases, are the most difficult to deal with from a legal deposit point of view. A dynamic publication is one that is kept up-to-date on a permanent basis, sometimes weekly, daily or hourly and sometimes even on a continuous basis (real-time updating). As Mackenzie Owen and Walle stated, "By definition a dynamic document is intended to be accessed in its current state. A copy taken at an earlier moment in time represents an invalid instance of the document, i.e. it is not the document as intended by its author if it has changed since the copy was taken. The only and valid correct instance of the document is its most current version. It could even be the case that when a networked document ceases to be available, the author intends it to be non-existent."44 While some suggest that depository libraries should not be collecting dynamic electronic publications because their permanent updating implies they are not meant to be preserved, others say that it is the responsibility of a national deposit library to collect, preserve and make available the cultural and intellectual heritage of a country no matter how it is expressed. While it is almost impossible to keep a permanent deposit copy up-to-date unless a publisher agrees to maintain two parallel versions, the legislation could require that the publisher send a "snapshot" of its dynamic publication on a regular basis as fixed by the law. The legislation could also include a provision specifying that whenever a dynamic publication ceases to be available on-line, its final version will be deposited.

Another area of electronic material that is often a matter of discussion from a legal deposit point of view is the "organized public communications" sent over open networks, such as NetNews, listservs, etc. Some consider these as a "separate intellectual entity" kept up-to-date as databases, and others consider them as archival material, claiming that to them they are no different from personal or private correspondence. There seems to be a consensus for excluding such material, mainly because it is made up of material that is not edited and cannot be considered as "a publication," which is normally defined as an independent, self-contained and organized entity.

Whereas in a print environment it has been relatively easy to define what should be considered as a "publication" for legal deposit purposes, including material such as compilations, the definition ends up being a bit more complex in a digital environment. A publication is generally defined as a document consisting of sequential text and/or other data such as images, sound, etc., which is structured or organized and edited as an independent unit. It exists on a physical support that is made available to the public in multiple copies and can be acquired by anyone. Within a digital environment, a publication is a document that is produced, distributed and stored in electronic form. Available either in a tangible format, such as a diskette or a CD-ROM, or on-line, such as databases or Internet documents, it is a combination of information content and software that provides search capabilities not available within a print environment. Just like a print publication, an electronic publication could be an independent and well-structured entity, or it could include bits and pieces of information not necessarily linked together, such as a GIS database or a statistical database. The way the information is organized, accessed and managed within a digital environment creates specific legal deposit problems, such as the one related to listservs.

Despite all the problems related to the legal deposit of on-line publications, they should be included in the definition of material to be deposited. This will ensure that as problems are solved, the depository library is in a position to request these publications and enforce the legislation. At this point it is important to make a clear distinction between a number of concepts within the legal deposit of electronic publications environment. What should be deposited are the separate and complete "intellectual" units that are stored either separately or as part of a database. Whenever a database is made up of separate and complete units - such as a legal database that includes cases, journal articles, etc. - it should be an object of deposit. But when a database is made up of raw data (i.e. unorganized data that could be selected and gathered on order by an individual to create a separate and complete "intellectual" unit for his/her own private use), it should not be subject to legal deposit. While there is a need to preserve those raw data, it is not within the normal mandate of a national legal deposit institution to be responsible for collecting and preserving them. But that same institution could play a leadership role in convincing governments that such valuable information and/or material should be preserved for future generations. As Mackenzie Owen and Walle write, "The conclusion to be drawn is that publications which cannot be acquired as an independent, self-contained and coherent entity ( in general documents, which cannot be downloaded from the network but only accessed) should not be selected for deposit. Providing access to such documents is not a task for the deposit function."45

It is very important that the deposit library be in a position, both legally and technically, to store and control the electronic publications as deposited. Solely providing access is not sufficient and does not meet the objectives of legal deposit. Legal deposit of electronic publications means "the permanent transfer for retention by the library, not just temporary access from the library to a remote source. Simply allowing access is not equivalent to establishing a permanent store, and is insufficient for deposit purposes."46 National legal deposit institutions must therefore resist the temptation to leave publishers with the responsibility of archiving and preserving electronic publications. As stated by Van Drimmelen, "Are the publishers going to take care of long-term availability? They did not in the case of printed material, so why should they in the case of electronic publications? Their primary concern lies with the continuity of their business operations, and rightfully so."47 Since publishers have no economic incentive to develop an expensive infrastructure to preserve electronic material on a long-term basis, it is much better to let the deposit library play the role of a last-resort source for publications that for economic reasons would otherwise not be preserved.

Already some countries have taken action to include electronic publications in their legal deposit scheme. Canada, France, Germany, Iran, Italy, Japan, Sweden and the United States have specifically identified off-line electronic publications as being subject to legal deposit by referring in their legislation to the necessity of depositing a physical item or a publication in a fixed format. Other countries, such as Denmark, Finland, Norway and South Africa, are including on?line material as well, through a definition that accommodates current new publishing formats and those of the future and through eliminating from the definition any reference to a physical format. As an example, Denmark's legislation states that two copies of any work published in Denmark must be deposited, a work meaning a delimited quantity of information that must be considered a final and independent unit. A work is also considered to be published when notice is given to the public that the work is available from a database from which a user can retrieve a copy. Another example is the 1997 South Africa Legal Deposit Act, which refers to documents to be deposited as being "any object which is intended to store or convey information in textual, graphic, visual, auditory or other intelligible format through any medium."48 The same act refers to "published" as meaning "produced to be generally available in multiple copies or locations to any member of the public, whether through purchase, hire, loan, subscription, licence or free distribution."49

Another critical issue for legal deposit of electronic publications is access to the deposited material. As already mentioned, electronic publications need to be accessed before the user is able to get to the information available, whether it is off-line or on-line material. For the user to have access to the material, there are both technical and legal considerations to be taken care of. From a technical point of view, it is important to make sure that the information is accessible both currently and retrospectively. The legislation must include provisions ensuring the deposit of any associated software, manuals and accompanying material needed to currently consult the deposited electronic publications. But it is just as important that the legislation also include provisions allowing conversion to new formats and/or migration to new operating environments without infringing other laws, such as copyright. The obsolescence of technology is a major concern when considering the legal deposit objective of long-term availability for researchers. As recommended by the Working Group on Legal Deposit of Electronic Publications of the Conference of Directors of National Libraries, "It is important that legal deposit provisions be worded in such a way that repositories have permission to copy, reformat, refresh or migrate deposited publications for preservation purposes. If this permission is not granted, it will not be possible to maintain materials for posterity."50

A sensitive issue related to access is the licensing issue. While there seems to exist a consensus among the deposit libraries that access to deposit electronic material should be controlled, the information producers still fear that a statutory obligation to provide access to their electronic material could jeopardize their revenues and compromise their ability to compete in the international market of information. Mutual understanding of the concerns and objectives of both parties should help to resolve the issue. It is necessary for the publishers to understand that the national deposit institutions have a public interest duty to preserve and safeguard the authenticity and integrity of publications for future generations and to ensure that any citizen of a country has access to the entirety of the national intellectual production regardless of the format in which it is available. On the other hand, the legislator should recognize the financial and human resources investment required to develop digital products. Considering that a single copy stored at a single location on the Internet could serve the whole planet, it is understandable that publishers need to know that their commercial interests are respected by depository institutions. As presented by Van Drimmelen, "The question is, how should legitimate access be defined in order to restrict access to last resort use only?"51 But there is also a legitimate need to define legitimate access in terms of equal accessibility for everyone, a principle that cannot be sacrificed.

Legal deposit legislation should therefore provide that a site licence be granted with the deposited electronic material, both off-line and on-line, in order to allow researchers to search the electronic sources for private and non-commercial use. For off-line publications, the licence should cover both use through a local area network and stand-alone access. The legislation should determine the number of concurrent users, as in the print environment, where legislation determines the number of copies to be deposited. With the encrypted password mechanism and the IP (Internet Protocol) address of workstations, publishers should be less concerned with the protection of their intellectual property rights. It is obvious that the national deposit institutions would also have to put security measures in place to avoid abuses. For remote access, the legislation should include provision for at least one registered user at a time to access the material as long as he/she has demonstrated through a signed agreement that he/she is performing private and non-commercial research.

Before legal deposit of on-line electronic publications becomes fully implemented in most countries, there are still a number of technical problems to be resolved and legal issues to be clarified. But it is important for any country wishing to include electronic publications in its legal deposit scheme to make sure that the appropriate legislation is properly amended, even if the scheme would not be fully operational. As with copyright legislation, legal deposit legislation within the electronic environment should be the result of a compromise based on the balance of rights between citizens and publishers. Whereas including a provision for unlimited free access for the users of a national legal deposit institution would be abusive, not providing at least one access to the registered users of such an institution would be as unreasonable.

43. South Africa. Legal deposit act, 1997, s. 1.
44. Supra note 26, at 25.
45. Ibid.
46. Jim Vickery, "The legal deposit of electronic publications" (1998) 36:1 Against the Grain, 38
47. Wim Van Drimmelen, "The Netherlands depository of electronic publications at the Koninklijke Bibliotheek" (1997) 21:3 Library Acquisitions: Practice & Theory, 321.
48. Supra note 21, at s. 1.
49. Ibid.
50. Conference of Directors of National Libraries, Working Group on Legal Deposit of Electronic Publications, The Legal Deposit of Electronic Publications, on-line: Unesco http://www.unesco.org/webworld/memory/legaldep.htm (date accessed: 22 December 1999).
51. Supra note 47, at 323.