Government consults on revised archive plans for 'non-print' content

Out-Law News | 23 Mar 2012 | 10:40 am | 4 min. read

New laws on the archiving of digital content will not require publishers to provide online content to storage libraries if the information is not able to be obtained through web harvesting, the Government has said.

The Department for Culture, Media and Sport (DCMS) said the draft Legal Deposit Libraries (non-print works) Regulations 2013 would not place such a requirement on publishers. Web harvesting involves the collection of online content through the use of automated software.

Previously DCMS consulted with publishers and legal deposit libraries (LDLs) over plans for libraries to have access to online, as well as printed, content. It backed away from progressing the plans last year after saying it could not be sure that the publishers or libraries would not incur unreasonable costs as a result of the process.

However, DCMS is now consulting on revisions to its plans. Under the proposals publishers will be able to deposit content with LDLs in a 'non-print' format instead of having to provide print copies if LDLs agree. This will reduce the cost publishers incur in providing the works, the Government said.

"The objective of the regulations is to allow the preservation of non-print publications for future generations," DCMS said in its consultation.

"The draft regulations will extend the formal depositing system in the legal deposit libraries to include off line content, and on line content that can be obtained through a harvesting process. The draft regulations also cover on line content that is substantially the same as a printed work. This will remove the need for publishers to deposit in print and reduce the costs to the publishing sector," it said.

Currently the Legal Deposit Libraries Act requires that publishers send a free print copy of their work to the British Library and to any other LDL that requests it. The British Library, the National Libraries of Scotland and Wales, the university libraries of Oxford and Cambridge, and Trinity College Dublin make up the Government's list of LDLs.

Under the draft regulations publishers would not be forced to allow their online content to be collected by LDLs through web harvesting. However, DCMS said it expects "most" publishers will elect for material to be collected in this way.

"In most cases, the delivery of on line work to deposit libraries will be by web harvester," it said. "The ‘visit’ by the web harvester software to the IP address of the website hosting the work will constitute a request for that work. The regulations will make it mandatory that the delivery of the work in response to the request must be by way of automated response from the website to the web harvester."

If content is stored behind paywalls publishers will be required to provide LDLs with login details in order that web harvester can collect the information, DCMS said.

"For on line works behind a login facility, the request by the web harvester software to the login page will be deemed to be a request for the on line works behind that page, and the obligation on the publisher to deliver those works in automated response to the web harvester software will still apply," it said.

"The draft regulations require the deposit library to give the publisher at least 14 days’ notice before directing a web harvester to a login webpage for the works behind that page. This will allow time for the publisher to provide the deposit library with login details so that when the request is made by web harvester for the on line work behind the login page, the web harvester will be able to gain access behind the login page and the publisher consequently will be able to comply with the obligation to deliver the work by automated response to the web harvester," DCMS said.

"Deposit libraries will be required to use relevant registration details provided by publishers for the first and all subsequent requests by web harvester to registration or pay sites, which will avoid the need for deposit libraries to give advance notice each time the web harvester software requests works from those sites."

LDLs and publishers can form voluntary agreements on other ways content can be collected. However, if they do not settle on an alternative "agreed method" for collection both could be found liable for any copyright infringement or infringement of other intellectual property rights.

"If an agreement is reached, web-based content which is deposited using the agreed method of delivery will benefit from the exemptions from liability that these regulations would offer," DCMS said.

The draft regulations "potentially" apply to all off-line work, such as CDs and DVDs, and all online work that is published in the UK. Material is said to be published in the UK "when an on line work is made available to the public from a website with a domain name which relates to the United Kingdom or a place within the United Kingdom; or when it is made available to the public by a person and any of that person’s activities in relation to the creation or publication of the work take place within the United Kingdom," DCMS said.

Information published on a "closed intranet" system or "content containing personal data on social network-type sites" will not have to be deposited by publishers.

The proposed regulations will not generally apply to micro-businesses and start-ups until March 2014. However, those companies will be allowed to provide content in non-print format in place of print copies after the legislation comes into force "if they wish", DCMS said.

Those organisations can also choose to send other "web-based content" to deposit libraries prior to March 2014, whilst LDLs will be allowed "simply to copy freely available on line work from the internet" from those publishers.

Respondents have until 18 May to submit their views on the Government's revised proposals.