As more and more material is produced solely in an electronic
form, should its publishers be required to deposit an electronic
copy with Australia's National Library? That's the question
at the heart of the Australian Government's new consultation
paper "Extending Legal Deposit".
Currently, the publisher of certain materials published in
Australia, and in which copyright subsists, must deliver one copy
of the material to the National Library of Australia. The types of
materials covered are "a book, periodical, newspaper,
pamphlet, sheet of letter-press, sheet of music, map, plan, chart
or table, being a literary, dramatic, musical or artistic work or
an edition of such a work, but does not include a second or later
edition of any material unless that edition contains additions or
alterations in the letter-press or in the illustrations"
(section 201 of the Copyright Act).
The consultation paper proposes extending the current mandatory
deposit obligations to "offline" electronic publications
– basically electronic publications that have a physical
embodiment, such as DVDs or CD-ROMS. Currently the National Library
accepts physical format electronic publications on a voluntary
deposit basis through voluntary arrangements with publishers and
creators. If this model were adopted, not only would deposit be
mandatory, but the copy supplied would have to be stripped of any
Technological Protection Measure.
Publishers of purely online electronic publications would only
be required to deposit their materials on demand. According to the
consultation paper, the types of material that could be subject of
a deposit demand includes "scholarly e-journals, e-magazines,
ephemeral publishing such as e-zines, online newspapers, e-books,
blogs, websites, and conference proceedings." How online
material without a physical embodiment would be delivered is yet to
Issues flagged in the paper include:
administration and compliance costs, especially considering the
wide range of material that could be subject to the deposit scheme
and the changes that might need to be made to it;
public access to the deposited material: could there be a
conflict with publishers' commercial interests?; and
what use could the National Library make of it?
Submissions must be in by 14 April 2012. There will also be
further consultation to be conducted by the Office for the Arts on
legal deposit of audiovisual material to the National Film and
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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