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Australia: National Library to Implement Digital Legal Deposit from January 2016

(July 13, 2015) As a result of changes to the legal deposit provisions in the Copyright Act 1968 (Cth) made by the Civil Law and Justice Legislation Amendment Bill 2014 (Cth), the National Library of Australia will have the power to collect and preserve Australian works published in electronic format, beginning January 1, 2016. (Clarissa Thorpe, Australian Electronic Books to Be Preserved at the National Library in Canberra Under New Laws, ABC NEWS (July 3, 2015).) The bill, which was passed by the federal Parliament on June 25, 2015, amends the Copyright Act 1968 to specifically allow the National Library to “request the delivery of works that are available online.” (Civil Law and Justice Legislation Amendment Bill 2014 (Cth) sch 7 inserting new section 195CB into the Copyright Act 1968 (Cth), ComLaw website; Civil Law and Justice Legislation Amendment Bill 2014, Parliament of Australia website (last visited July 10, 2015).)

A new section 195CC inserted into the Copyright Act 1968 provides that

(1) The Director-General of the National Library may request, in writing, a person to cause a copy of National Library material to be delivered under section 195CD if:
(a) the person publishes the material; and
(b) the material is available online; and
(c) the Director-General considers that a copy of the material should be included in the national collection of library material (see section 6 of the National Library Act 1960).

Note: The national collection includes a comprehensive collection of library material relating to Australia and the Australian people.

(2) The request may be made any time after the person publishes the material.

(3) For the purposes of paragraph 9(2)(d) of the Electronic Transactions Act 1999, one way of consenting to a request being made by way of electronic communication is having the ability to automatically receive user agent requests.

Example: The Director-General could use a web harvester to make requests in the form of user agent requests.
(Civil Law and Justice Legislation Amendment Bill 2014 (Cth) sch 7, inserting new section 195CC into the Copyright Act 1968 (Cth).)

Subsequent provisions define “National Library material” and specify requirements for delivering copies of such material, including those items published in electronic form, to the National Library. National Library material includes “[a] literary, dramatic, musical or artistic work, or an edition of such a work, (whether in an electronic form or otherwise)” where the work or edition is a “website, web page, web file, book, periodical, newspaper, pamphlet, sheet of music, map, plan, chart or table” in which copyright subsists. The National Library can also prescribe that certain works are National Library material for the purposes of the provision. (Id. sch 7, inserting new section 195CE into the Copyright Act 1968 (Cth).)

In terms of delivery of the material, the new provisions specify that, if the copy is in an electronic form, it must be “free from any technological protection measure” and be “accompanied by any software or additional information necessary for the National Library to access the material from the copy.” (Id. sch 7, inserting new section 195CD(1)(c) into the Copyright Act 1968 (Cth).)

Previously, while some Australian state and territory legislation provided for digital legal deposit of relevant materials at state libraries, the federal law only applied to print-based material published in Australia. (Legal Deposit Requirements Australia Wide, NATIONAL LIBRARY OF AUSTRALIA (last visited July 10, 2015).)

The Need to Change the Deposit System

An attachment to the explanatory memorandum for the Civil Law and Justice Legislation Amendment Bill provides detailed information about the existing deposit system and the need for changes to enable the comprehensive collection of digital material by the National Library. It explains that the National Library has “attempted to acquire digital materials under a voluntary scheme for some years,” but has only collected a “small fraction of the digital output in that time,” due largely to the need to seek publisher permission before acquiring a copy. This has included “selective, permissions based, web archiving procedures” involving the .au web domain that have resulted in the collection of “less than 3% of the freely available web materials that could be collected through bulk harvesting processes.” (Civil Law and Justice Legislation Amendment Bill 2014, Explanatory Memorandum, Attachment A, COMLAW.)

Following the passage of the legislation, the National Library stated: “[a]fter a long wait, Legal Deposit legislation has now been updated and we will be collecting everything on the Internet relating to Australia. Future generations of Australians will now have access to today’s online stories, ebooks, journals and magazines and any new forms of publication that appear in the future.” (Digital Legal Deposit Is Here, NATIONAL LIBRARY OF AUSTRALIA (July 2, 2015).) The Director-General of the National Library further stated, “[c]ollecting this digital material will let us create a picture of what it’s like living in Australia today: how we think, how we feel, what we care about. This will provide invaluable social history to scholars of the future.” (Library Captures the Internet, NATIONAL LIBRARY OF AUSTRALIA (July 2, 2015).)