The United Kingdom has a robust system of copyright laws that was revised in 2003. The 2003 Act provided the Secretary of State with the power to introduce regulations to require publishers to deposit non-print materials with the legal deposit libraries across the UK. Non-print materials that meet certain criteria must be deposited with the legal deposit libraries if published in the UK. The regulations also enable the legal deposit libraries to perform web harvesting to obtain content, and provide restrictions as to the use of such content.
The deposit of books has been required by law in the United Kingdom since 1662. It is currently provided for by the Legal Deposit Libraries Act 2003. This Act requires publishers and distributors to send one gratis copy of each publication to the Legal Deposit Office of the British Library within one month of publication.
Five other libraries, which collectively with the British Library are known as legal deposit libraries, may within twelve months of publication obtain, upon request, a free copy of any recently published book for deposit. These libraries are the National Library of Scotland, National Library of Wales, Bodleian Library in Oxford, Cambridge University Library, and Trinity College Library in Dublin. While the law states that the five other libraries must submit a request within a year of publication to receive materials, “in practice many publishers deposit their publications with all six libraries without waiting for a claim to be made.” The aim of this requirement is to preserve knowledge and information for future generations and “maintain the national published archive of the British Isles.”
Provided work is original and falls within one of the copyright categories, registration of copyright in the United Kingdom is automatic, and as a result there is no official copyright register. Whether a work is original is ultimately a determination that can only be made by the courts.
II. Mandatory Deposit of Non-Print Materials
The Legal Deposit Libraries Act 2003 included a framework under which regulations could be introduced to extend the requirement to deposit print materials to non-print materials. This power was used and, on April 6, 2013, ten years after the Legal Deposit Libraries Act was enacted, the Legal Deposit (Non-Print Works) Regulations 2013 entered into force. These Regulations extended the obligation to deposit materials to non-print materials to enable the legal deposit libraries to build and preserve a “national collection of e-journals, e-books, digitally published news, magazines and other types of content.”
A. Background to the Regulations
The 2013 Regulations were created amid a significant increase in online publications, leading the government to acknowledge that the internet has emerged as “an important record of national and world events.” The government has stated that these regulations are to achieve the policy objective of ensuring that the UK’s non-print publications are preserved for future generations:
[t]he extension of legal deposit to non-print works is designed to ensure that the UK’s non-print published output (and thereby its intellectual record and published heritage) is preserved as an archive for research purposes, while also reducing the costs of legal deposit to publishers overall.
To help determine the best way to implement these new obligations, the government established an independent, nondepartmental public body in 2005, known as the Legal Deposit Advisory Panel, whose remit was to advise the government on how to implement the 2003 Act. The government undertook a consultation in 2010, soliciting input on recommendations from the Legal Deposit Advisory Panel on proposals for e-deposit and the response from the consultation prompted it to drop regulations that it had drafted. Issues that were highlighted during the 2010 consultations included
- a lack of clarification over the scope of the material covered by the regulations and whether or not the requirement to deposit non-print materials applied to both offline and online materials,
- uncertainty over what non-print materials are considered to be published in the UK,
- restrictions on access to the content,
- costs of providing and maintaining this content, and
- the data security and integrity of deposited materials.
The government determined from the responses provided to the consultation that the regulations as proposed would create a disproportionate burden, not overcome by the public benefit of deposit, to both libraries and publishers, and it worked to revise the draft regulations to take the feedback from the consultation into account.
Concerns were also raised over how restrictions on access to content after the expiration of copyright protections would be managed, but the government stated that this issue would be addressed at a later date, during a review of the regulations after their implementation.
In 2012, the government revised and clarified the draft regulations and issued a second consultation that clarified the scope of the regulations as covering offline and online content, including online content that can be obtained through web harvesting. The Legal Deposit (Non-Print Works) Regulations 2013 were subsequently enacted.
B. Material Covered by the Regulations
The material covered by the Regulations includes both offline publications, such as material contained on CD-ROM, DVD, or microform, and online publications, such as e-journals. The government has specifically stated as follows:
Work published in a medium other than print means work published on line (such as content from the internet, an e-book or an electronic journal) or work published off line (that is, published in a physical form other than print such as a CD-ROM, DVD-ROM or microfilm).
The regulations specifically exclude the following classes of material:
- Work that contains personal data and is available only to a restricted group, such as information provided on a social media site with restricted access, such as closed groups on Facebook or protected tweets. Materials on these sites that are available publicly fall within the remit of the regulations.
- Work that consists predominantly of film or recorded sound, or material that is incidental to this.
- In cases of electronic materials that must be requested, rather than copied, work published prior to the Regulations entering into force.
In order for material to fall within the Regulations, it must be published in the UK, and this occurs when
(1) . . .
(a) it is made available to the public from a website with a domain name which relates to the United Kingdom or to a place within the United Kingdom; 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 the United Kingdom.
(2) A work published on line shall not be treated as published in the United Kingdom if access to the work is only made available to persons outside the United Kingdom.
C. Deposit of Non-Print Materials
The new regulations enable the legal deposit libraries to claim and receive non-print publications, notably those in an electronic format, from publishers. The British Library is entitled to one gratis copy of every offline work that is published in the UK. The other deposit libraries are able to request a copy. The format of the copy of offline material “must be of a quality most suitable for preservation as agreed by the publisher and the library or, in the absence of agreement, of the quality decided by the publisher.”
1. Depositing Materials Under Agreement
In cases where publishers issue two versions of a single publication, an electronic version and a print version, the default form of deposit continues to be print, although the publisher and library may mutually agree that the work may be deposited in electronic format rather than print format.
The regulations enable the publisher and deposit library to agree to another method of delivering online content, such as through a secure upload, and this agreement will satisfy the requirement contained in section 1 of the Legal Deposit Libraries Act 2003 to deliver content while continuing to be subject to the restrictions and exemptions that the regulations apply to non-print materials. The material must be provided in the form that is “most suitable for preservation purposes,” as determined by agreement between the deposit library and the publisher or, in the absence of such an agreement, as determined by the publisher. If such an agreement is made, the materials must be delivered within one month after a request is made in writing by the deposit library.
For cases of offline materials and online materials obtained under agreement, the publisher must include a copy of any computer program and/or information necessary to access the work provided and a copy of a manual or other material that accompanies the work and is available to the public.
2. Obtaining Content through Web Harvesting
In cases where there is no agreement for the deposit of online material, the Regulations permit deposit libraries to obtain a copy of online materials that fall within the criteria of the regulations through an automated process, known as “web harvesting.” This process, which is coordinated between the deposit libraries to ensure sufficient coverage and prevent overburdening publishers’ websites, occurs where a computer fitted with software requests content from a website, and the website the content is requested from responds automatically with a copy of the content and its associated metadata.
The regulations provide that the material must be provided automatically once the content has been requested by the software. This applies to content freely available as well as content subject to public-access restrictions, such as behind a login page. In cases of material behind a login page, the deposit library must provide notice to the publisher at least one month before web harvesting commences to enable the publisher to provide login details to the deposit library.
This login information must be used for subsequent requests to the same site for content contained behind a password-protected wall. In cases of material behind a login page, the visit by the web harvesting software to the login page is “deemed to be a request for the on line works behind that page.”
D. Use of Materials, Restrictions and Exemptions
To ensure that the copyright holder’s work is not violated, the deposit libraries are subject to some restrictions over how the materials obtained may be handled.
1. Transferring and Viewing Materials
Deposited non-print materials may be transferred or lent to other deposit libraries, and the deposit libraries may use the materials for their own research. The deposit libraries must wait seven days after receiving the materials before they make it available to the public. At that point, the Legal Deposit (Non-Print Works) Regulations 2013 provide that non-print material may only be viewed at a work station on “library premises controlled by the deposit library,” and the deposit library may only display the same item of non-print material at one computer terminal to a person located on the premises at any given time.
2. Copying Materials
The Regulations provide that deposit libraries may make copies of non-print materials in three scenarios without infringing copyright: (1) for the purposes of preservation, (2) for researchers and to enable access to visually impaired individuals, and (3) if another copy is not otherwise commercially available.
Deposit libraries are authorized to make copies of or adapt non-print material for the purposes of preservation, and these copies may be in a different form or medium than the original deposit. Deposit libraries may also dispose of deposited materials by destroying them, but must keep one copy of all relevant material in the most suitable version for the purposes of preservation.
Librarians may make copies of non-print materials for researchers if certain conditions are met and the material copied forms a reasonable proportion of the non-print material that it is copied from. Deposit libraries may also provide copies of non-print materials where a database right does not exist if the library is satisfied the copy is required by a “person for the purposes of non-commercial research or private study, criticism or review or reporting current events, parliamentary or judicial proceedings or a Royal Commission or statutory inquiry and will not be used for any other purpose.”
In cases of non-print materials where a database right exists under the Copyright and Rights in Databases Regulations 1997, a deposit library may provide copies to a person if it is satisfied “that the copy is required by that person for the purposes of parliamentary or judicial proceedings or a Royal Commission or statutory inquiry and will not be used for any other purpose.”
The Regulations also contain a declaration that may be submitted to the deposit library, enabling a user to declare that her or she will only use the materials for the purposes above, and that if the materials are used for any other purposes that user will be liable for infringing copyright.
3. Copyright Holder Restricting Access to Materials
The Regulations permit rights holders to stop deposit libraries from providing access to their material
if they can demonstrate that allowing access to the non-print work would, or would be likely to, unreasonably prejudice their legitimate interests. A rights holder may request an initial embargo of up to three years and may make subsequent requests of up to three years, each time meeting the requirement to demonstrate prejudice to their legitimate interests.
The aim of the government is to “extend the system of legal deposit progressively and selectively to cover various non-print media as they develop, including off-line publications (e.g. CD ROMS and microforms), on-line publications (e.g. e-journals) and other non-print materials.”
The Legal Deposit Act 2003 included a requirement that regulations requiring the deposit of other materials should not result in costs to publishers that are disproportionate to the public benefit achieved by the process of deposit. Specifically, regulations could not be introduced “unless the Secretary of State considers that the costs likely to be incurred as a result of the regulations by persons who publish works to which the regulations relate are not disproportionate to the benefit to the public arising from the delivery of copies of such works.”
After a consultation, the Secretary of State determined that the costs that would be introduced as a result of the 2013 regulations were not disproportionate to the public benefit. The government noted that the regulations would provide an overall savings to publishers, but impose additional costs on legal deposit libraries, who would have to establish and maintain a web harvesting system, but that this cost was outweighed by the public benefit “in being able to collect on line works systematically to produce a shared archive of non-print works, and the potential savings that can be made from no longer needing to archive a proportion of printed works.”
F. Development of Collections Policy
Deposit libraries are required to maintain and publish collections policies for non-print materials that detail the collection strategy and high-level priorities, and identify which publishers are within the scope of the Regulations.
III. Alternatives to the Regulatory Approach
A voluntary arrangement had been in place for a number of years, and the Agency for the Legal Deposit Libraries considered that,
[i]n practice, most publishers of such works have already been depositing them under a long-established voluntary code of practice, the provisions of which are similar to those in the Legal Deposit Libraries (Non-Print Works) Regulations 2013. Therefore no significant practical change or impact is anticipated, except changing from a voluntary to a statutory basis for depositing.
The government’s view contrasted with this statement, and it noted that it had
considered non-statutory alternatives to this instrument, such as voluntary deposit schemes for non-print works. These have not been taken forward, however, as they would not adequately resolve the issue of a growing gap in the comprehensiveness of the archives and records of the UK’s digitally published output.
Prepared by Clare Feikert-Ahalt
Senior Foreign Law Specialist
 Legal Deposit Libraries Act 2003, c. 28, § 1, http://www.legislation.gov.uk/ukpga/2003/28, archived at https://perma.cc/VYP3-V8DT. This obligation was previously contained in the Copyright Act, 1911, 1 & 2 Geo. 5, c. 46, § 15, which was repealed by the Legal Deposit Libraries Act 2003.
 British Library, supra note 1.
 Copyright Act, 1911, 1 and 2 Geo. 5, c. 46, § 15(2). See also Legal Deposit Libraries Act 2003: Explanatory Notes, ¶ 4, http://www.legislation.gov.uk/ ukpga/2003/28/notes/division/3, archived at https://perma.cc/PKJ4-E6UZ.
 About, Agency for the Legal Deposit Libraries, supra note 4.
 Id. See also Legal Deposit Libraries Act 2003: Explanatory Notes, ¶ 6, https://www.legislation.gov.uk/uksi/2013/777/pdfs/uksiem_20130777_en.pdf, archived at https://perma.cc/QE84-PDYQ.
 Legal Deposit Libraries Act 2003, c. 28, § 6.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, SI 2013/777, ¶ 2, https://www.legislation.gov.uk/ uksi/2013/777/made, archived at https://perma.cc/JEH8-DZP7.
 Depositing Electronic Publications, British Library, https://www.bl.uk/aboutus/legaldeposit/websites/elecpubs/ (last visited May 29, 2018), archived at https://perma.cc/6ZGC-EKCB.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, Explanatory Memorandum, SI 2013/777, ¶ 7.1, https://www.legislation.gov.uk/uksi/2013/777/pdfs/uksiem_20130777_en.pdf, archived at https://perma.cc/QE84-PDYQ.
 Id. ¶ 2.3.
 Department for Digital, Culture, Media and Sport (DCMS), Consultation on the Legal Deposit of Non-Print Works, 2012, ¶ 1.4 (hereinafter DCMS Consultation), https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/73046/Consultation_on_the_Legal_Deposit_of_Non-Print_Works.pdf, archived at https://perma.cc/HWW5-82LQ.
 Id. ¶ 1.8.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, SI 2013/777, Explanatory Memorandum, supra note 14, ¶ 8.2.
 DCMS Consultation, supra note 16, ¶ 7.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, SI 2013/777, Explanatory Memorandum, supra note 14, ¶ 8.3.
 Legal Deposit Libraries (Non-Print Works) Regulations, supra note 12, ¶ 13(1).
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, SI 2013/777, Explanatory Memorandum, supra note 14, ¶ 2.2.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, supra note 12, ¶ 13(2)(b). See also DCMS, Guidance on the Legal Deposit Libraries (Non-Print Works) Regulations 2013, ¶¶ 4.5 & 6.3 (Apr. 2013) (hereinafter DCMS Guidance), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/182339/NPLD_Guidance_April_2013.pdf, archived at https://perma.cc/MK7L-ETQX.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, supra note 12, ¶ 13. See also DCMS Guidance, supra note 24, ¶ 4.7.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, supra note 12, ¶ 18(1)–(2).
 Id. ¶ 15.
 DCMS Guidance, supra note 22, ¶ 4.10.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, supra note 12, ¶ 16(1). See also DCMS Guidance, supra note 22, ¶ 4.9.
 Id. ¶ 16(2). See also DCMS Guidance, supra note 22, ¶¶ 3.5 & 5.2.
 DCMS Guidance, supra note 22, ¶ 5.2.
 Id. ¶ 3.6.
 Id. ¶ 7.1.
 Id. ¶ 5.4.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, SI 2013/777, ¶ 13. See also Legal Deposit Libraries (Non-Print Works) Regulations 2013, SI 2013/777, Explanatory Memorandum, supra note 14, ¶¶ 7.2 & 8.1.
 DCMS Guidance, supra note 22, ¶ 3.3.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, supra note 12, ¶ 16(3).
 DCMS Guidance, supra note 22, ¶ 3.4.
 Id. ¶ 3.4.
 Id. ¶ 4.17.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, supra note 12, ¶ 2.
 Id. ¶ 24.
 Id. ¶ 26. See also DCMS Guidance, supra note 22, ¶ 4.20.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, supra note 12, ¶ 29. See also DCMS Guidance, supra note 22, ¶ 4.22.
 DCMS Guidance, supra note 22, ¶ 4.24.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, supra note 12, ¶ 27(2)(a).
 Copyright and Rights in Databases Regulations 1997, SI 1997/3032, ¶ 20A, https://www.legislation.gov.uk/ uksi/1997/3032/made, archived at https://perma.cc/Q9RD-TA9Y.
 Id. ¶ 27(2)(b).
 Id. ¶ 27(2)(c).
 DCMS Guidance, supra note 22, ¶ 4.19.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, SI 2013/777, Explanatory Memorandum, supra note 14, ¶ 6.
 Legal Deposit Libraries Act 2003, c. 28, § 11(4).
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, supra note 12, Introductory Text.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, SI 2013/777, Explanatory Memorandum, supra note 14, ¶ 10.2.
 DCMS Guidance, supra note 22, ¶ 5.1.
 Electronic Legal Deposit: Legal Deposit Libraries’ Collecting Plans For 2013–2014, Agency for the Legal Deposit Libraries, https://www.legaldeposit.org.uk/electronic/2013-2014-collecting-plans.html (last visited May 23, 2018), archived at https://perma.cc/7ZFJ-85Z4.
 Legal Deposit Libraries (Non-Print Works) Regulations 2013, SI 2013/777, Explanatory Memorandum, supra note 14, ¶ 7.4.
Last Updated: 12/30/2020