Ymgynghoriad ar Adneuo Gweithiau Di-brint yn Gyfreithiol. Consultation on the Draft Legal Deposit Libraries (non-print works) Regulations 2013

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1 Ymgynghoriad ar Adneuo Gweithiau Di-brint yn Gyfreithiol Consultation on the Draft Legal Deposit Libraries (non-print works) Regulations 2013 Ymateb Llyfrgell Genedlaethol Cymru Response from The National Library of Wales

2 INTRODUCTION The National Library of Wales welcomes the draft Regulations for non-print legal deposit. There has been a world-wide move to ensure preservation of digitally published content, and enacting these regulations will bring the many benefits of this approach to Wales and the UK. The Library has warned of the creation of a digital black hole, with valuable content not being preserved but these Regulations will enable preservation and permanent access to the United Kingdom s digital heritage for future generations. The Library has worked in partnership with the other legal deposit libraries of the UK and Ireland since the Legal Deposit Libraries Act 2003 to prepare for implementation of Regulations which will enable the Library to continue to collect, preserve and safeguard the published output of the UK. Along with the British Library and National Library of Scotland we have undertaken the development of the essential technical infrastructure that will support the implementation of the Regulations. The Welsh Government s Digital Wales strategy recognises the importance of online content for educational, cultural, social and economic purposes and expresses a vision for the role of online content in Wales. A comprehensive archive of contemporary Wales on the web is essential to fulfil a number of these points by ensuring open government, facilitating the citizen s access to current and past information, preserving Wales cultural heritage and providing opportunities for business. The National Library of Wales broadly supports many of the amendments made to the Regulations, and given the risk to the published record of Wales urges the UK Government to finalise the Regulations as soon as possible.

3 QUESTION 1 CONSULTEES The National Library of Wales is a legal deposit library. QUESTION 2 NON-PRINT WORKS WITHIN SCOPE [Regulation17] The National Library of Wales agrees with and welcomes this all-inclusive approach. Furthermore the Library believes that the revised draft Regulations intention to broadly cover all types of non-print publication and clarification of what is out of scope aids future-proofing. QUESTION 3 COORDINATING REQUESTS FOR DELIVERY OF ONLINE WORKS [Regulation20] While The National Library of Wales is committed to working with the other legal deposit libraries to co-ordinate the collection of online content and sharing of this content collected between the libraries, we welcome this change. This change from the previous draft regulation will allow for flexibility in collecting arrangements in response to differing circumstances. QUESTION 4 WEB HARVESTER REQUESTS [Regulation20] The National Library of Wales agrees with the presumption of web harvesting as the default method of deposit where no alternative method has been agreed. This will allow for harvesting of freely available content with minimal burden placed upon the publisher. The Library also agrees that a publisher must be allowed sufficient time to deal with a request for login details to allow for the harvesting of content which is behind a login facility. However, Regulation 20 as currently drafted would not be practical for the libraries to implement. Parts 20(2) and 20(3) of the revised draft Regulation specify that a request may be made by web harvester and may apply to material behind a login facility and Parts 20(5) and 20(6) specify that a legal deposit library must give at least 14 days prior written notice to the publisher and use any login details provided by the publisher before making the first web harvester request. As the legal deposit libraries will be using an automated crawling process to find/discover and copy websites from the internet for the shared archive the crawler is likely to discover and request access to password protected pages amongst freely available pages. The Library will therefore not be aware that a request is being made to a password protected page beforehand and will not be able to comply with 20(5).

4 It is the Library s view that Regulations 20(3) and 20(5) could be amended to allow for the following: an automated web harvester request to be made at any time to a web page that contains a login facility but only requests made after at least 14 days (separate) written notice has been given by the deposit library will be taken as referring to content behind the login facility. Or perhaps Regulation 20(5) might simply be amended so that a publisher of a work or works available behind a login facility must give a deposit library the relevant login details within 14 days of written notice from the deposit library requesting those details. QUESTION 5 AGREEMENTS FOR AN ALTERNATIVE DELIVERY METHOD [Regulation21] The provision of a possibility of a mutual agreement for an alternative method of delivery of content to harvesting between a legal deposit library and a publisher under the protection of the regulations is extremely important. Many publishers may prefer to use alternative methods of delivery for reasons of cost and practicality and the National Library of Wales fully supports this provision. The drafting of Regulation 21 as it currently stands seems to exclude micro and start-up businesses from the option to voluntarily deposit content in non-print format which is situated behind a log in facility via web harvesting. They may only choose the alternative methods, even if web harvesting were more cost effective for them, or beneficial in other ways. The National Library of Wales believes that the option to voluntarily deposit non-print content behind a login facility via web harvesting should be available to micro and start-up businesses under the protection of the regulations should they wish to take advantage of it. In Wales, with a large number of micro-businesses, many of whom provide unique content, and publish in the Welsh language, this provision would be especially important. Information provided by the Welsh Books Council regarding the 124 publishers which they deal with leads the National Library of Wales to believe that up to 90% of them could be classed as microbusinesses and therefore would be exempt from the provisions of the regulation which do not relate to open web harvesting. QUESTION 6 PUBLISHED IN THE UNITED KINGDOM [Regulation23] The National Library of Wales supports this definition. The definition of published in the UK to be either under 23(1)(a) or 23(1)(b) is clear, practical and will allow the legal deposit libraries to use automated web crawlers to collect a high proportion of qualifying web content.

5 QUESTION 7 SHARING DEPOSITED MATERIAL BETWEEN DEPOSIT LIBRARIES [Regulation24] The National Library of Wales believes that this regulation is of benefit to all parties, by allowing publishers to deal only with one legal deposit library in terms of arrangements for alternative methods of delivery and for legal deposit libraries to carry out web harvesting as a joint enterprise. As stated in our answer to question three, The National Library of Wales is committed to working in collaboration with the other legal deposit libraries to pool collected content in a secure, shared technical infrastructure and coordinate dealings with publishers, therefore the provisions in this regulation are essential. QUESTION 8 DEPOSIT LIBRARIES OWN USE OF DEPOSITED MATERIAL [Regulation25] The National Library of Wales welcomes the addition of this Regulation to permit the use of relevant material by a deposit library for its own research and study. QUESTION 9 FACULTY OF ADVOCATES [Regulations 26 and 27] The National Library of Wales supports the inclusion of these two Regulations. QUESTION 10 RESEARCH AND PRIVATE STUDY [Regulation 32] The National Library of Wales welcomes the inclusion of the ability to provide copies of deposited material for non-commercial research, private study, judicial proceedings, Royal Commission or statutory inquiry. It is important to our readers that they are able access and use our collection in this way for the purpose of research for a non-commercial purpose or private study without need to seek the permission of the copyright holder. It was noted in The National Library of Wales response to the last consultation, that the regulations did not include many other exceptions which are permitted under the Copyright, Designs and Patents Act 1988, and while the provision of copies for the purposes of parliamentary and judiciary proceedings and now permitted, there are a number of other purposes such as criticism, review and news reporting or copying under statutory authority which are not.

6 The National Library of Wales believes that Regulation 32(2) should permit the making of copies for any of the purposes allowed under section 50 of the Copyright, Designs and Patents Act 1988 (as amended). The National Library of Wales would also seek to clarify that Parliamentary proceedings include those of the devolved assemblies and parliaments in the UK. There is also an on-going concern that restrictions on copying will, under the proposed regulations, last in perpetuity. The indefinite duration of these restrictions, which is discussed in full in the response to Question 23, is very likely to have serious implications for access and use of non-print content in the future. QUESTION 11 ADAPTING RELEVANT MATERIAL FOR PRESERVATION PURPOSES [Regulation 35] The National Library of Wales regards this Regulation as essential for the long term preservation of non-print content so that it can continue to be used by researchers of the future. QUESTION 12 DISPOSING OF COPIES OF DEPOSITED WORKS [Regulation 36] The National Library of Wales does not have any concerns about this Regulation. QUESTION 13 COPYING WORKS FROM THE INTERNET [Regulation 17(3) and 23(3)] The National Library of Wales fully supports Regulations to permit archiving of freely accessible websites in the UK domain under legal deposit legislation, and the provision of copies for researchers without infringing copyright or database rights. We fully support the policy intention of the UK Government as set out in this question and the consultation document. While legal advice has confirmed that the Regulation as drafted does indeed permit the copying of works from the internet and the provision of copies to researchers without infringing rights, this is not explicitly clear within the Regulations themselves. This could cause confusion, and we therefore suggest the addition of a statement to paragraphs 4.6 and 4.7 of the Consultation Document confirming that the deposit libraries may copy relevant works published online by start-ups and micro-businesses, be included in the Explanatory Note to the Regulations. QUESTION 14 IMPACT ON MICRO-BUSINESSES AND STARTUPS

7 The National Library of Wales agrees that Regulations 18(1), 21, and 17(3) and 23(3) do not place any mandatory burden on micro or start-up-businesses. The National Library of Wales believes that the exemption of micro and start-up businesses from the Regulations (which the impact assessment estimates would cost 26 per annum to micro-businesses and start-ups if they were not exempted) would contribute to the continuance of the digital black hole, which the regulations seek to plug. In Wales, where there are a high proportion of micro businesses and many small traditional publishers (as detailed in the answer to question 5), this exemption could create a gap in the collection of Welsh language material and content relating to Wales and its culture which would in turn undermine the role of The National Library of Wales as set out in its Royal Charter. The National Library of Wales believes that, micro and start-up-businesses could benefit from inclusion within the regulations through having access to a securely stored copy of their content. The National Library of Wales is consulting with the Welsh Government regarding the possibility of amending the regulations in Wales. The National Library of Wales is also concerned that the definition of micro-businesses could also lead to the exclusion of third sector organisations whose material would otherwise not be excluded from the regulations. The National Library of Wales is concerned that as drafted, the Regulations could be read to preclude copying of material from the internet. In one interpretation of the Regulations as currently drafted, the manner of exempting start-ups and microbusinesses from Regulation 20 in combination with the application of Regulation 18(2) could make it impractical for the deposit libraries to copy any freely available on line works from the internet, even those published by medium-sized and larger organisations. There is a clear statement in the Consultation document confirming the Government s aim to allow the deposit libraries without seeking agreement to copy material that is published on line by micro businesses and new businesses regardless of Regulation 18. The National Library of Wales strongly believes that the Government s intention as phrased in the consultation document should be expressed clearly in the Regulations and / or the Explanatory Note. QUESTION 15 QUESTION 16 QUESTION 17

8 QUESTION 18 QUESTION 19 QUESTION 20 QUESTION 21 QUESTION 22 IMPACT ON DEPOSIT LIBRARIES In the National Library of Wales view the description of impacts and the estimated costs and benefits for deposit libraries, as presented in the Impact Assessments, are accurate overall. The Impact Assessments present a very strong case for regulation on economic and practical grounds, and while the cultural benefits have not been quantified, The National Library of Wales believes that they would be significant. QUESTION 23 OTHER The National Library of Wales wishes to draw attention to two issues. As set out in our answer to question fourteen, The National Library of Wales noted its concern that the definition of micro-businesses could also lead to the exclusion of third sector organisations whose material would otherwise not be excluded from the regulations. Regulation 14 defines business by reference to the Income Tax Acts and Corporation Tax Acts. Therefore, clubs, societies and individuals who publish in a personal capacity without earning any income form their work would not be classed as businesses but individuals publishing as self-employed traders or as part of a vocation, anyone earning an income from writing, many charities, private schools and other not for profit organisations and many other types of publisher might all potentially be classed as businesses. This makes it very difficult to assess how the exemptions in Regulation 5 might be implemented appropriately. The National Library of Wales believes that greater clarity or additional information, whether in the Regulations, the Explanatory Notes or a separate publication, on the factors which should be considered when determining whether a particular publisher is considered to be a start-up or micro-business, would be welcome.

9 The Library also suggests in its response to question fourteen that there would be benefits to libraries, businesses and stakeholders should micro and start-up businesses not be excluded from Regulations 19, 20 and 22. This would remove the need to further define business. The second issue, mentioned in the response to Question 10, is that the proposed regulations will allow restrictions on copying to last in perpetuity. This concern was raised in the National Library of Wales s response to the last consultation, but without redress. While the Library believes that the interests of publishers and authors should by all means be protected, extending that protection beyond its duration under copyright law is regarded as excessive. If the potential value of preserving non-print content is to be fully realised, then this issue is of the utmost importance. It should also be viewed within the context of recent developments relating to the UK copyright framework and access to information held by public bodies. The Hargreaves Review of Intellectual Property and Growth, which published its report in May 2011, concluded that the current framework was unfit for the digital age and inhibitive to innovation and growth. Since then, the Government has entered consultation on its proposals to reform the UK copyright framework. They include a proposed solution to the orphan works problem which would enable the use of works that may still be in copyright but whose authors are unidentifiable or untraceable. Allowing restrictions on the copying of non-print content to last in perpetuity, even in cases where copyright is known with certainty to have expired, would not be in keeping with the general direction of copyright reform in the UK as well as other EU states. In recent years, there has been an emphasis on widening access and enabling the reuse of information held by public bodies, including libraries, via the World Wide Web and through the use of open content licensing models such as the Open Government Licence. At a time when the Web is becoming accessible anywhere and anytime, imposing indefinite restrictions on the copying of non-print content that would limit access to out of copyright works to library premises would be contrary to the ethos of recent developments made possible by these technological advances. While the prospect of restrictions being applied long after copyright has expired is far from satisfactory, an even worse scenario is that, if the regulations were not extended, all permitted uses of the material would be terminated. Measures should be taken to ensure that the possibility of such a situation arising is eradicated altogether. To conclude, the National Library of Wales believes that these is no reasonable justification for allowing the restrictions to last beyond the expiry of copyright and/or database rights which may subsist in the non-print material and that, unless this issue is addressed, it will severely limit and potentially negate their cultural and economic value in years to come. We therefore urge the Government to include an additional Regulation which refers to Section 7 of the Act and, once the intellectual property rights in relevant material have expired, confers the same rights upon a relevant person as any other person in lawful possession of a copy would have, to use, copy, adapt, lend, transfer or dispose of the material.