With the advent of new information technologies and more specifically of the digital environment, the feasibility of maintaining legal deposit schemes has come into question. As the nature of the material changes, documents are no longer "published" but "made available" on networks. "Copies" are no longer "sold"; instead, "paid subscriptions" are required from the users to "access" the material. Most legal deposit schemes have been able to integrate off-line electronic publications without any major problem, mainly because of their physical support and the fact that their handling is quite similar to that of print material. But the on-line environment, and more particularly the case of dynamic electronic publications, is creating serious legal deposit problems. The main one is obviously the fact that the information is constantly being updated in real time, so that data and information systematically disappear in a matter of seconds and are not available any longer as historical records. The biggest challenge for legal deposit within an electronic or digital environment is the issue of preservation for future generations. And as Vickery correctly states, "If it is true that some forms of publication cannot be physically deposited or retained for future use, this is of major significance for the role of national libraries in their efforts to preserve the world's knowledge."53

Another issue related to "publishing" on networks such as the Internet is the incredible proliferation of "private" or "individual" publishers. As more and more individuals make their material directly available on the Internet, the situation could easily become a nightmare for any national legal deposit agency that wishes to ensure the deposit of all the works of its citizens. At the rate technologies evolve, it is now almost impossible to predict, even for the near future, how material will be accessed. A good example of this evolution is the MP3 environment for sound recordings, which now makes music directly available to users on the Internet.

Do these issues mean that the national legal deposit agencies should limit their responsibility to preserve knowledge and information for future generations to tangible materials only? The answer to such a question is an unambiguous no. The preservation of the national cultural and intellectual heritage is a clear matter of public interest and is a state responsibility. It is absolutely necessary that the "collective memory" be identified, described in the national bibliography and preserved. A legal deposit is an essential element of any program aiming at such an objective.

It is very important that the national legal deposit agencies resist the temptation to let the information producers archive their own electronic material for future generations. It is not up to the producers to do so. Moreover, if there is no financial benefit, why would they take on such a major responsibility? But it is obvious as well that the philosophy, and therefore the legislation, of legal deposit will have to change. While traditional information carriers (books, serials, microforms, CDs, videocassettes, etc.) will remain, the digital environment will bring along new types of material in new formats that cannot be handled in the same manner and with the same approach as the traditional carriers. Like copyright legislation, legal deposit legislation will have to be based on a balance of interests between the rights holders and the citizens who have a right of access to information. While rights holders stress the importance of legislation ensuring the legal protection of their material against any unauthorized use, access solely through licences controlled by the information producers may limit the citizens' right of free access to information.

Not only should national legal deposit schemes be maintained, but they should be expanded to include material that traditionally has been considered as "archival" material and therefore not subject to legal deposit. Dynamic publications, such as databases, existing in one copy that is stored on a main server accessible to any authorized user should also be subject to legal deposit since they now constitute a major portion of the cultural and intellectual heritage of a country. Legal deposit should therefore include material that exists in one copy only, as long as it is publicly accessible material. With the acceptance of this principle, other "archival" material, such as radio and television broadcasts, could become subject to legal deposit - as is the case in France and in Norway. In many countries, this would require a major modification to the laws related to radio and television broadcasters to ensure that legal deposit is compulsory for both public and private stations.

As a matter of principle, electronic publications of all types should be subject to legal deposit. It is unjustifiable that because of unsolved technical and legal problems, an important component of the world's published heritage would not be preserved. It is absolutely necessary that all national legal deposit legislation include digital material. National legal deposit agencies have always co-operated with information producers to ensure an efficient legal deposit system, and there is no reason to believe that this would change within a new publishing environment.

There are big challenges ahead in balancing the rights of creators with the rights of users. It is clear that there must be close Cupertino between the national agencies and the rights holders within an efficient copyright clearance system. Solutions must be found. In fact promising models are currently being developed to track the use of material in the networked digital domain and that may include the ability to ensure equal access to information for everyone.

It is very important for all national legal deposit agencies to get involved in the discussions, as the sole organizations able to preserve the cultural and intellectual heritage of nations and to be the guardian of the democratic right of freedom of access to information for all citizens. Legal deposit legislation throughout the world should reflect this responsibility. But there is a certain urgency. As technology evolves, the threat of potential loss of valuable material is growing. Indeed, in certain areas, the situation is almost at the point of no return.

52. Supra note 46, at 36.
53. Ibid.