Appeared in the Ottawa Citizen on January 16, 2007 as Centuries-Old Library Program Enters the 21st Century

Appeared in the BBC on January 22, 2007 as Preserving Printed and Digital Heritage

In 1537, French King Francis I launched an ambitious initiative to collect and preserve all documents published in France.  To achieve his objective, he enacted a law requiring all publishers to submit copies of their publications to the Crown. The practice of mandatory publication deposits, which later became known as legal deposit, caught on as many countries sought to preserve their heritage by establishing similar requirements.

Canada introduced mandatory legal deposit in 1953, requiring publishers to provide copies of all published books to the National Library of Canada.  Over the past 54 years, the system has gradually expanded, adding serial publications in 1965, sound recordings in 1969, multi-media kits in 1978, microforms in 1988, CD-ROMs and video recordings in 1993, and electronic publications on all types of physical formats in 1995. While enforcement of legal deposit is viewed as a last resort, the Criminal Code includes provisions for those publishers that fail to comply.   

With little fanfare, the rules for legal deposit have gradually been adapted to the Internet and digital technologies.  In 2004, the government granted the Library and Archives Canada, the successor the National Library, the right to sample web pages in an effort to preserve noteworthy Canadian websites.  The Internet sampling provision has been used to gather copies of political party websites as well as a handful of notable blogs.

As of January 1st of this year, the rules have changed yet again as Canadian Heritage Minister Bev Oda introduced new regulations to accommodate the emergence of online publications and to address the concerns raised by digital technologies that potentially impede access.

The regulations broadly define publisher as any person "who makes a publication available in Canada that the person is authorized to reproduce or over which the person controls the content." In order to avoid thousands of bloggers rushing to submit their blog postings to the LAC, the regulations do not require publishers to deposit blog postings, email correspondence or other press releases (though the LAC has the right to request these documents or such content could be submitted voluntarily).  

Instead, the rules focus on online material that is considered to be in "publication" form.  The LAC notes that online publications usually have a distinct title, a specific author or authoring body, a specific date and are intended for public consumption.  Examples include books, magazines, annual reports, research papers, and scholarly journals.  

As part of the deposit process, publishers can choose between open access, which allows the public to view and download the publication through the Internet, or restricted access, which limits public access to selected computer terminals at the LAC's main building in Ottawa.  The LAC encourages publishers to select open access whenever possible.

The latest changes will require many online-only publishers to begin submitting their publications to the LAC.  The rules disappointingly stop short of requiring all publishers to submit electronic versions of paper-based documents, however.  Such a requirement should be considered in the future to facilitate the creation of a national digital library.

The new rules also address mounting concern about the potential impact of digital locks (known as digital rights management or DRM) to deny future generations access to the publications in digital form.  DRM has been viewed as a threat by many within the library community, who fear that they and their patrons may literally be locked out of digital works as DRM systems are used to restrict otherwise legitimate access or become obsolete.

In response, Ottawa has implicitly acknowledged that the DRM-related concerns necessitate legal intervention.  The regulations now require publishers to decrypt encrypted data contained in a publication and to remove or disable systems designed to restrict or limit access to the publication before submitting it to the LAC.  Moreover, publishers are required to also provide the LAC with a copy of the software necessary to access the publication, the technical information necessary for access, and any "meta-data" associated with the electronic publication.   

These regulations mark the first time that the Canadian government has stepped in to protect the public interest against the potential negative consequences of DRM.  Given these new legal deposit program provisions, thousands of libraries across Canada may soon demand similar protections for their electronic publication collections, which now account for as much as 25 percent of library budgets.

The policy goal of legal deposit - namely preservation of a country's published heritage for present and future generations - has remained largely unchanged over the past 470 years.  The latest developments help ensure that the program is as effective in the digital world as it was in the day of King Francis I.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

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