The Need for a Legal Deposit Law in Malta

The Need for a Legal Deposit Law in Malta – Comparing New Zealand’s and The United Kingdom’s Case to Draft a Legal Deposit Act for Malta

By Ryan Scicluna

Library Assistant Outreach Department University of Malta Library Tel: 2340 2541 e-­‐mail: ryan.scicluna@um.edu.mt http://www.um.edu.mt/library

Looking at the Malta Libraries Act 2011, even though it is a comprehensive work for a small country like Malta, only paragraph 10 and 11 deal specifically with legal deposit, with paragraph 11 being a small paragraph about electronic documents. Such paragraphs are quite limited in their description and this leaves a lot of room for improvement. In 2011 a basic outline for electronic documents might have sufficed but the constant exponential increase of online material requires a more detailed law. In comparison, countries like Britain, Australia and even New Zealand have whole Acts on Legal Deposits only and very detail Notices or regulations about electronic documents and non-­‐print material. By comparing the Legal Deposit Libraries (Non-­‐Print Works) Regulations 2013 of the United Kingdom and the National Library Requirement (Electronic Documents) Notice 2006 of New Zealand a model for Malta can be drafted.

New Zealand’s Case

The New Zealand Libraries Act 1965 was reviewed and revised in 2003. With this new edition of the law the legal deposit section was expanded upon to examine contributions made by legal deposit to the National Library’s role of maintaining a comprehensive collection and record of knowledge relating to New Zealand. It also explored the options available for extending legal deposit to cover knowledge recorded in formats not covered by the previous legislation. Prior to the extension to legal deposit, the National Library had to ask permission to copy electronic publications. The process was inefficient with some publishers simply ignoring the Library’s request and others declining to allow their sites to be harvested. However it was the new forms of online publication that challenged the National Library’s collection Mandate the most. For these reasons The National Library saw electronic legal deposit as a means of ensuring that New Zealand’s digital heritage would be available in perpetuity. Penny Carnaby, then National Librarian, noted “we do not want to fail the future by leaving a gap in New Zealand’s history because we were to slow or unwilling to confront the challenge of digital preservation now.”

(Elliott, 2011)

While the Act provided for the extension of legal deposit to electronic publications, secondary legislation was required to bring certain provision into force. In 2006 the National Library’s Minister issued the National Library Requirement (Electronic Documents) Notice 2006.

This specified further the law that deals exclusively on electronic/digital documents. The notice interprets different media and definitions that relate to electronic material such as off-­‐line document and optical media (Paragraph 3, National Library Requirement (Electronic Documents) Notice 2006). It also tries to clearly define terms for the online environment such as publishing. These definitions help to make clear what falls under such law. That is why for the National Library Requirement (Electronic Documents) Notice 2006 it was important to avoid wording and definitions that would rapidly date any new provisions. Such technicalities might seem trivial however having the proper structure in a clear defined way will avoid any unnecessary misunderstanding between all stakeholders involved. One such case was the expressed concerns about the breadth of the definition of public document. To avoid provisions in the Act rapidly going out of date a broad definition was essential. Such a definition covered material collected by other archives but not the National Library. This also avoided duplications of collections and exemptions from the requirement to deposit.

The Notice also makes a distinction between an online electronic document and an off-­‐line one. This allows for the collection of digitally born published online documents even though they are not available online in any other format. Such a distinction allows a shift from an “obligation to deposit” to an “obligation to copy” approach (Elliott, 2011). Concern was expressed about the costs to publishers to submit their legal deposit copies in physical formats. The electronic documents notice had the potential to significantly increase such costs for electronic material. These issues were addressed by shifting responsibility from the publishers onto the Library i.e. publishers are obliged to deposit physical format publications, books, serial, newspapers, DVDs and CDs. However the National Library is obliged to harvest/copy online public documents (Paragraph 8, National Library Requirement (Electronic Documents) Notice 2006).

As an example, the National Library of New Zealand (te puna matauranga o aotearoa) Act 2003, obliges the publisher of a public document (other than internet document) to give to the National Librarian, at the publisher’s own expense, a specified number of copies (not exceeding 3) in print format or for electronic documents, in the medium that contains the document (Paragraph 31). In the National Library Requirement (Electronic Documents) Notice 2006 this is further expanded and referred to as the off-­‐line document.

In such a case the publisher, at his own expense, must supply 1 copy or more copies to the National Librarian as follows; 2 copies of the medium or device that contains the document or 1 copy of the medium or device that contain the document, if -­‐ i) the document is a single discrete item the of which exceeds $1,000 or ii) the document is available for an annual subscription that exceeds $3,000 (Paragraph 5). The superseded Act did not have the same flexibility and specific distinctions.

Something that the Notice does not expand upon is the access provisions for the electronic documents under legal deposit, even though New Zealand publishers strongly expressed their concerns about the potential electronic legal deposit to impact their commercial interests (Elliott, 2011). However the National Library of New Zealand (te puna matauranga o aotearoa) Act 2003 addresses such issues in paragraph 34 (3) and (4) stating that the provision listed apply for physical and electronic documents.

The act also specifies that it was still required to abide by the copying provisions of the New Zealand Copyright Act.

United Kingdom’s situation

New formats and the sheer volume of published electronic material have challenged the New Zealand’s National Library’s approach to the collection of electronic documents. The National Library Requirement (Electronic Documents) Notice 2006 allowed the Library to develop different strategy guides for such a task. Similarly the United Kingdom developed a separate Act for the Non-­‐print material that still fall under legal deposit.

Similar to New Zealand in 2003 a new Legal Deposit Act Libraries Act was given royal assent in 2003. This legislation did not bring legal deposit of non-­‐print publications into effect, but created a framework within which allowed for this to be achieve through secondary legislation. This secondary legislation came in the form of The Legal Deposit Libraries (Non-­‐Print Works) Regulations 2013 in April 2013. Such regulations come into effect due the concerns expressed by many, especially the Chief executive of the British Library, who wrote of the “danger of creating a digital black hole for future historians and writers” unless urgent action is taken to preserve web sites and other digital records “to ensure that our digital future can be a rich gold mine and not a void” (Gibby, 2012).

The Legal Deposit Libraries (Non-­‐Print Works) Regulations 2013 are more detailed and comprehensive than the New Zealand ones. Before the actual regulations there are a set of considerations by the Secretary of State that clarify the consultations made for these Regulations, the equal priority with regards other laws and also justifies the costs incurred as a result of these Regulations. Part one which deals with the introduction has an expanded list of definitions and interpretations to furthermore clarify terms such as computer terminal, IP address, permanent collection and web harvester (Paragraph 2 (1)).

Part 2 deals primarily with exemptions for micro-­‐businesses and new businesses. This is a very interesting section as it offers an insight into new ways by which the government creates initiatives designed to promote economic growth by encouraging new business and giving start-­‐ups and micro-­‐ businesses “breathing space” from the constant flow of new domestic statutory requirements (Gibby, 2012). In this paragraph one finds a definition of what is defined by micro-­‐businesses and new businesses (Paragraph 5 and 7(1)) and also what these types of businesses are exempted from (Paragraph 4). It is very interesting to see the level of detail by which the regulations try to account for everything. Such an example of this is the detailed explanations about the number of employees in paragraphs 9, 10 and 11.

When it comes to the part of the Deposit itself, like New Zealand the act makes a distinction between online works and off-­‐line. Defining also for what non-­‐print works this Act applies to and what to do with regards new and alternative editions (Paragraph 13 and 14 respectively). Paragraph 15 (2) specifies the entitlement of delivery of off-­‐line work where a copy must be submitted to the British Library Board within one months of publication, however each other deposit library even though entitled for a copy must submit their requests with provisions under paragraph 15 (4). For online works the Act presumes a default process in which content is harvested by the deposit libraries and publisher-­‐initiated deposit is only an option at the publisher’s choice, rather than a requirement. This is very similar to the shift of obligations in New Zealand’s case. However the UK model is described in terms of an obligation for the publisher to deliver material by electronic means in automated responses to a request from the library (Gibby, 2012).

This becomes clear in paragraph 16 (3) specifies that if there is no agreement between a publisher and the deposit library, delivery of work must be made by means of a web harvester from one or more IP addresses by the deposit library. Paragraph 16 (4) continues to explain the provisions in case a web page contains a login facility.

When it comes to new formats of technology one must keep in mind the proper tools and requirements that are needed in order to view or use certain formats. In this regard paragraph 17 requires publishers to provide additional material such as manual, computer programs, data or information that is required to make the deposited work accessible and functional to the public.

The permitted activities of the deposit libraries are explained in detail and this holds the deposit libraries responsible for what they collect and what and how to make it accessible to the public. A copyright owner or database right owner may make a request in writing to a deposit library to withhold access to a relevant material for a specific period of time (Paragraph 25 (1)). The Regulations also specify lending between legal deposit libraries (Paragraph 19), how certain material is to be accessible by readers (Paragraph 23) even those visually impaired (Paragraph 26).

Since the 2003 Act contains a clause which prohibits all uses of deposited material as default except in ways specified by the regulations, there was no need to have special paragraphs on this issue. However the Regulations do make specific provisions on supplying copies for research (Paragraph 27) and copying or adapting relevant material for preservation (Paragraph 29 and 30 respectively). The Regulations do the extra step of supplying a form of declaration for the copying of relevant material which is to be filled in by the person requesting the copy in accordance with the regulations.

Another important issue that the New Zealand Notice does not address is the disposal of relevant material. Paragraph 31 declares that copies must be destroyed however at least one version of the material must be retained and that this version should be the version which the deposit library considers most suitable for preservation. Such detailed legislation makes for efficient procedures that ensure the preservation of the digital heritage of the UK. Similarly New Zealand and the UK cover important issues in their respective legislations.

A Draft for Malta

In the UK, developing e-­‐legal deposit legislation has been a slow but extensive process, covering a wide range of issues with detailed discussion and negotiations between the deposit libraries, publishers and a wide variety of other stakeholders. Even though the UK was amongst the first countries to be actively considering non-­‐print legal deposits it still took over 10 years to iron out the details for said legislation.

When we look at the case for Malta we have to keep in mind that notwithstanding the fact that we are a small country compared to New Zealand and the UK, the Maltese public create a huge number of works that should fall under Legal Deposit. The 2011 Libraries Act is a detailed and compact law however when it comes to the legal deposit of printed works it does not specify alternative provisions for different formats regardless of costs. It also does not specify ways in which such work are to be accessible to the public and how the deposit library is to make use of deposited copies. For non-­‐printed works, paragraph 11, only gives the deposit library the right to download, copy or store electronic documents published via networks or otherwise available online, for the purpose of public access within the premises of the library, and for the preservation of the national published output deemed necessary for the long-­‐term national memory and future use (Malta libraries act 2011). Electronic document is defined as a document regardless of form or medium produced using electronic means to make information available to the public and stored in computers or other storage media, which can be accessed or displayed either on a computer monitor, on other storage media or as a print-­‐out.

A more detailed and flexible law is require which clearly identifies what is required from publishers and what is the duty of the deposit library with regards online and off-­‐line content. The Act should also contain clear definitions of specific material so that more precise provisions can be outlines for different material. Another consideration that should be made in the Maltese context is non-­‐print material such as audio visual. The UK has a separate legislation for such material nonetheless within the Maltese context this can be outlined together with an e-­‐document legislation due the similar nature of the contents, the formats and accessibility.

Even if there is a clearly defined law that addresses every issue of legal deposit unless the deposit library has the infrastructure and equipment to carry out the obligations of the law the process of Legal deposit will not be an efficient and accurate one. The law give the deposit library a legal tool for its mandate however if the proper application of such a law is not enforced by said deposit library it will all result in a futile exercise with the national bibliographic output that suffers because of it.

Draft for Maltese Legal Deposit Regulations (Print, non-­‐print and audio-­‐visual material)

Part 1 -­‐ Interpretations

1 -­‐ (1) In these Regulations, unless the context otherwise requires, “the Act” means the Malta Libraries Act, 2011; “computer terminal” mean a terminal on a library premises controlled by the deposit library from which a reader is permitted to view relevant material; “medium” is any means of storing information or communication; “National Librarian” means the head of the Malta Libraries appointed under article 5 of this Act; “National Library” means the National Library of Malta; “publication” means any published document, record, or work, regardless of form or medium, including printed, audio-­‐visual, microform, electronic hand-­‐held or online documents, records or work, made available to the public whether freely, on loan, or for sale; “publisher” means any person or body corporate responsible for making available to the public any publication, regardless of form or medium, irrespective of whether such person is the author, printer, producer or other person or body making finished copies of such publication; “off-­‐line works” means an electronic document that is not an Internet document, and includes an electronic document that is stored or used by means such as; (a) magnetic media (for example, a floppy disk, hard drive, an audiotape, or a videotape): (b) optical media: (c) an electronic storage device (for example, a universal serial bus device (USB) or memory card)

“optical media” includes; (a) a compact disc (CD) and variants of a CD; and (b) a digital versatile disc (DVD) and variants of a DVD “publish” means; (a) in the case of an off-­‐line document, making the docu-­‐ment publicly available by issuing copies of the public document to, or making copies of the public document available on request by, a member of the public, whether or not there is any restriction on the acquisition of the document by members of the public (as by payment of a price or fee); and (b) in the case of an Internet document, making the docu-­‐ment publicly available on the Internet, whether or not there is any restriction on access to the document. “non-­‐print media” refers to both non-­‐print digital documents and audio-­‐visual material “audio-­‐visual material” refer to works published primarily in the formats of moving pictures such as videos, movies and films and sound recordings. It also includes other non-­‐print formats available online.

Part 2 -­‐ Deposit

2 -­‐ (1) The act applies to the following descriptions of work published in Malta; (a) publications and audio-­‐visual material off-­‐line. (b) publications and audio-­‐visual material online.

(2) Exempted from the publications described in paragraph 2(1) include: (a) personal publications and data published online through social media networks. (b) personal audio-­‐visual material published through social media networks. (c) publications and audio-­‐visual material published before these Regulations were made.

3 -­‐ Where substantially the same work is published in Malta in print and in one or more non-­‐print media, the National Librarian decides in which format or medium such a work is to be deposited to the National Library by a written request to the publisher.

4 -­‐ Where substantially the same work is published in Malta in two or more non-­‐print media (and is not published in print), the The National Librarian decides in which format or medium such a work is to be deposited the National Library by a written request to the publisher.

5 -­‐ With regards paragraphs (3) and (4), the cost of the deposit shall be incurred by the publisher if; (a) the cost of the work does not exceed 100 Euros. (b) the work is available for commercial use.

6 -­‐ With regards paragraphs (3) and (4), the cost of the deposit shall be agreed upon by the Deposit Library and the publisher if; (a) the cost of the work exceed 100 Euros. (b) the work is considered to be rare and of a significant historical value. (c) the work is produced in limited quantities or was part of a private collection.

7-­‐ Deposit of off-­‐line work still falls under the provisions of paragraphs 2(1), 3 and 4, however the National Library can decide what works are to be deposited by a request from the National Librarian submitted to the publisher of said works.

8 -­‐ The National Library is entitled to the delivery of works as mentioned in paragraphs 2 (1), 3 and 4 within; (a) one month for print published works. (b) one month for audio-­‐visual published works. (c) one month for online non-­‐print media. (d) three months for offline works, commencing from the date of the written request for the deposit of such works made by the National Librarian.

9 -­‐ Requests made by the National Librarian must be made within 12 months beginning with the day of the publication of requested works.

10 -­‐ For online material any request for delivery of a work must be made by the deposit library by means of a web harvester from one or more IP addresses dedicated for the purpose of making requests under this paragraph to the IP address from which the work is made available to the public.

11 -­‐ A request by a deposit library under paragraph (10) made in respect of a webpage which contains a login facility will be deemed to be a request for the work or works available behind that login facility provided that the deposit library has given the publisher at least one month’s notice in writing before making the request.

12 -­‐ Delivery of a work requested under paragraph (10) must be by electronic means and by automated response to the request made by the web harvester.

13 -­‐ When making a request under paragraph (10) for work or works available behind a login facility, a deposit library must use any relevant login details provided to it by the publisher.

14 -­‐ A deposit library must not use such login details for any purpose except for compliance with these Regulations.

15 -­‐ The publisher of a work delivered under regulation 2(1) or regulation 7 must deliver at the same time; (a) a copy of any computer program or any other data or information necessary to access the work; and (b) a copy of any manual and other material that accompanies the work and is made available to the public.

16 -­‐ (1) Subject to paragraph 2(1)(a), a work published on line shall be treated as published in Malta if; (a) it is made available to the public from a website with a domain name which relates to Malta or to a place within Malta or (b) it is made available to the public by a person and any of that person’s activities relating to the creation or the publication of the work take place within Malta.

(2) A work published online shall not be treated as published in Malta if access to the work is only made available to persons outside Malta.

Part 3-­‐ Accessibility and Use

17 -­‐ A deposit library may transfer or lend relevant material to any other deposit library.

18 -­‐ A deposit library may use relevant material for the purposes of; (a) reviewing and maintaining the relevant material, and (b) the deposit library’s own non-­‐commercial research (whether the subject matter of the research is the permanent collection or not).

19 -­‐ A deposit library must ensure that only one computer terminal is available to readers to access the same relevant material at any one time.

20 -­‐ A deposit library must ensure that audio-­‐visual material can only be accessed within the premises of the deposit library either; (a) through optical media with security certificates that do not allow copying or saving of said audio-­‐visual material or (b) stored digitally on the deposit library’s serves with security certificates that do not allow copying, saving or downloading of said audio-­‐visual material.

21 -­‐ In the case of relevant material which is work published on line, at least seven days must elapse from the date of delivery of that relevant material to the deposit library before a reader may be permitted to view it.

22 -­‐ (1) A copyright owner or database right owner in relation to relevant material may make a request in writing to a deposit library to withhold access to that relevant material from readers for a specified period of time.

(2) The deposit library receiving the request must comply with that request if the following conditions are met;

(a) the period specified in the request does not exceed two years from the date on which the request is made; (b) the deposit library is satisfied on reasonable grounds that, for the period specified in the request, viewing of the relevant material by a reader would, or would be likely to, unreasonably prejudice the interests of the person making the request or is of conflict with a the commercial interests of the individual.

(3) The entitlement to make a request under paragraph 22 (1) includes an entitlement to make subsequent requests, and (subject to paragraph 22 (4)) a deposit library must comply with a subsequent request if the conditions in paragraph 22 (2) are met in relation to that request.

(4) If a subsequent request seeks to extend the specified period of time relating to an earlier request made under paragraph (1), that subsequent request must be made at least one month before the specified period expires.

23 -­‐ (1) A deposit library may copy relevant material if the copy is made in any of the circumstances falling within paragraph 23 (2).

(2) The circumstances are that the copy is made (whether from the relevant material itself or from a copy made by the deposit library by virtue of this regulation) in order; (a) to preserve or replace the relevant material by placing the copy in the permanent collection in addition to or in place of the relevant material; (b) to replace the relevant material in the permanent collection of another deposit library if that relevant material has been lost, destroyed or damaged.

(3) A copy may be made by virtue of this regulation in a different medium or format from the relevant material if the deposit library considers the change is necessary or expedient for the purpose for which the copy is made.

(4) Paragraph 23 (1) does not apply if database right subsists in the relevant material.

24 -­‐ (1) A deposit library may adapt relevant material if the adaptation is made in any of the circumstances falling within paragraph 24 (2).

(2) The circumstances are that the adaptation is made (whether from the relevant material itself or from a copy made by the deposit library by virtue of regulation 23) for the following purposes; (a) To preserve or replace the relevant material by placing the adaptation in the permanent collection in addition to or in place of the relevant material; (b) To replace the relevant material in the permanent collection of another deposit library if that relevant material has been lost, destroyed or damaged.

(3) An adaptation may be made by virtue of this regulation in a different medium or format from the relevant material if the deposit library considers the change is necessary or expedient for the purpose for which the adaptation is made.

(4) Paragraph 24 (1) does not apply if database right subsists in the relevant material.

25 -­‐ (1) A deposit library may dispose of relevant material, or copies or adaptations of relevant material, by destroying it but must retain at least one version of any relevant material.

(2) The version or versions retained by a deposit library must be the version or versions which the deposit library considers most suitable for the preservation of the relevant material.

Part 4 -­‐ Obligation of the National Library

26 -­‐ The National Library is obliged to publish a Malta National Bibliography every two years.

27 -­‐ The Malta National Bibliography shall include all legal deposits received by the National Library within time period stipulated in paragraph 26. Failure to publish such a list will have the National Library liable to fines which are to be equivalent to the number of deposited items deposited within the National Library.

28 -­‐ In order to give publishers some reassurance, Maltese publishers can take the National Library to court if the National Library infringes regulations as mentioned in paragraph 26 and 27.

29 -­‐ The National Library is obliged to invest in the necessary infrastructure to store all legal deposit materials regardless of in which format or medium they are, to provide the right access for such material, and to facilitate the publishing of the Malta National Bibliography as per regulation 26 and 27.

30 -­‐ The National Library has the obligation to preserve both print and audio-­‐visual material and make all legal deposits accessible for present readers as per regulations 17, 18, 19, 20 and 21 whilst also preserving material for future generations with the best technologies present for preservation.

31 -­‐ Failure to comply with regulations 29 and 30 the National Library can hold the present government directly responsible and request compensation in any form to rectify such issues directly from said government.

32 -­‐ The government is obliged to assist the National Library in the enforcement of this Act and act as the direct entity responsible for the National Library.

References

Elliott, A. (2011). Electronic legal deposit: The new zealand experience. 193 - e-Legal Deposit: From Legislation to Implementation; from Ingest to Access - Bibliography Section with IFLA-CDNL Alliance for DIgital Strategies Programme (ICADS), Information Technology, National Libraries and Knowledge Management, Puerto Rico.

Gibby, R., & Brazier, C. (2012). Observations on the development of non-print legal deposit in the UK. Library Review, 61(5), 362.

Gibby, R., & Green, A. (2008). Electronic legal deposit in the united kingdom. New Review of Academic Librarianship, 14(1-2), 55.

The legal deposit libraries (non-print works) regulations 2013, Libraries no. 777U.S.C. (2013).

Malta libraries act 2011, ACT No. VIIU.S.C. A 501 (2011).

National library of new zealand (te puna matauranga o aotearoa) act 2003, Public Act 2003 No 19U.S.C. (2013).

National library requirement (electronic documents) notice 2006, SR 2006/118U.S.C. (2006).