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09 Mar 2012

Australian Government looks at extending mandatory deposit to electronic materials

by Mary Still, Robert Cutler

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 be determined.

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 Sound Archive.

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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 communication. Persons listed may not be admitted in all States and Territories.