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The Legal Deposit Libraries Act 2003: a Mere Coming of Age or Trusted Guardian of the Nation's Treasures?

Published online by Cambridge University Press:  31 March 2021

Kieran Lee Marshall  and
Kate Faulkner
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Abstract

The UK's legal deposit libraries play a crucial role in ensuring the country's intellectual and literary output is systematically captured for the use and enjoyment of readers, listeners, and researchers, now and in the future. This article, by Kieran Lee Marshall and Kate Faulkner, summarily examines the legislation that underpins that scheme – the Legal Deposit Libraries Act 2003 and Legal Deposit Libraries (Non-Print Works) Regulations 2013. Over three parts, it explores the historical development of legal deposit in the UK; its operation in the context of the modern deposit library – using a university library as its primary paradigm; and considers ways in which the current law and policy may be developed to better support deposit libraries, the information professionals that run them, and the library and archive users who greatly depend upon barrier-free access to deposited resources. It concludes by outlining three areas on which prospective reform may focus.

Keywords

legal depositlegal deposit librariesLegal Deposit Libraries ActLegal Deposit Libraries (Non-Print Works) Regulations
Type
Feature Article
Information
Legal Information Management , Volume 20 , Issue 4 , December 2020 , pp. 180 - 189
Copyright
Copyright © The Author(s), 2021. Published by British and Irish Association of Law Librarians

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Footnotes

The authors warmly welcome comments, replies, and questions, and are grateful to the reviewers for comments on an earlier draft. Any remaining errors are the authors own. The views expressed in this article are the authors own, not those of their employer(s), and the usual disclaimers apply. The law is stated as at 26 October 2020 and refers to that which is applied in England and Wales. The article does not constitute legal advice and citations are given using OSCOLA.

References

Footnotes

2 The British Library, About Legal Deposit (London: BL 2020) << https://www.bl.uk/legal-deposit/about-legal-deposit >> (accessed on 18 October 2020); Lyfrgell Genedlaethol Cymru / The National Library of Wales, Cyflwyniad i Adnau Cyfreithiol / Introduction to Legal Deposit (Aberystwyth: LGC / NLW 2020) << https://www.library.wales/collections/activities/legal-deposit >> (in English) (accessed on 18 October 2020). A list of the six legal deposit libraries can be found on the British Library webpage (above) or on the website of the Agency for Legal Deposit Libraries << https://www.legaldeposit.org.uk/about.html#legal >> (accessed on 18 October 2020).

3 For an accessible introduction to both see P. Pedley, Essential Law for Information Professionals (4th edn, Facet Publishing 2019) ch 4 and P. Gooding, M. Terras, and L. Berube, “Towards a User Centric Evaluation of UK Non-Print Legal Deposit: A Digital Library Futures – White Paper” (Glasgow, Edinburgh and Norwich: The University of Glasgow, Edinburgh and East Anglia 2019) ch 2 << http://elegaldeposit.org/resources >> (accessed on 23 October 2020), see too Ovenden, R., Burning the Books: A History of Knowledge Under Attack (John Murray 2020)CrossRefGoogle Scholar chs 4, 13 and 15. The Department for Digital, Culture, Media and Sport and the Joint Committee on Legal Deposit recently carried out a review of the Regulations, see <<https://www.gov.uk/government/publications/post-implementation-review-of-the-legal-deposit-libraries-non-print-works-regulations-2013>> (accessed 26 October 2020).

4 The authors note should like to express their agreement with Professor Gooding and others (n 3) 4, and their description of the legal deposit regime as a “posterity-driven mission”, that is invariably there to support the provision of knowledge for “scholarly and non-commercial” use (the authors emphasis): see (n 3) chs 1 and 2.

5 The authors are active users of the University Library and Squire Law Library at the University of Cambridge, and therefore situate their understanding of the legal deposit scheme within the university context. They do not seek to represent the views of those who manage legal deposit at the University of Cambridge, or those who operate in other settings. Notwithstanding, in order to broaden the applicability and context of the discussion in this article, the authors have intentionally drawn upon materials concerning legal deposit outside of the university context.

6 Ovenden (n 3) Introduction, 3 ff.

7 Ovenden (n 3) Introduction and chs 2, 4, 13, 14 and 15 and Pedley (n 3) ch 4, 99.

8 Ovenden (n 3) Introduction, 5 and ch 7.

9 Ovenden (n 3) ch 4, 48. King Henry VIII decreed English independence from Rome following a refusal by Pope Clement VII to annul his marriage to Catherine of Aragon. Having earlier been excommunicated, Pope Clement VII died in September 1534, with Paul III becoming Pope within the next month. By November of the same year, the Supremacy of the Crown Act 1534 had received Royal Assent, and Henry VIII declared himself ’Supreme Head of the Church of England’, marking the legislative beginning of the English Reformation.

10 Andrew Davis, “Legal Deposit in a Digital Age: An Overview” (2015) 10 (2) ALISS Quarterly 3 notes Sir Thomas Bodley “is [generally regarded as] the man responsible for all of this”, 3. However, as David Whitaker aptly mentions in “Nobody expects the Spanish Inquisition” (2001) 103 (8) Library Association Record 492, “the roots of legal deposit – now accepted as a national good – lie in the suppression of freedom of thoughts and expression”, 492. Moreover, major events in neighbouring countries on the continent during the same period formed a growing part of the wider wave of European enlightenment, and in what later in the 1600s would contribute to what is known as the “long-18th century”, circa 1685-1815. Closer to home, in the fifteenth and sixteenth century, numerous organisations and individuals were involved in attempts to preserve the nation's output and “cultural longevity”: see, for example, The Society of Antiquities, Our History (London: SAL 2020) << https://www.sal.org.uk/about-us/who-we-are/our-history/ >> (accessed on 23 October 2020), to cite but just one example of organised activity. Notwithstanding, it is evident Sir Thomas Bodley played a pivotal part in establishing what we now recognise to be legal deposit: see, for example, Ovenden (n 3) ch 4, 68 ff. However, the idea of legal deposit itself is thought to date back to early sixteenth century France: see Gooding et al (n 3) 6; J. Lariviere, Guidelines for Legal Deposit Legislation (2000) (Paris: United Nations Educational, Scientific and Cultural Organization” << https://unesdoc.unesco.org/ark:/48223/pf0000121413 >> (accessed on 23 October 2020) and Field, C., “Securing Digital Legal Deposit in the UK: The Legal Deposit Libraries Act 2003” (2004) 16 (2) Alexandria 87CrossRefGoogle Scholar.

11 Ovenden (n 3) ch 4, 65-70.

12 The Bodleian Libraries, History of the Bodleian (Oxford: University of Oxford) << https://www.bodleian.ox.ac.uk/about/history >> (accessed on 18 October 2020) and Ovenden (n 4) ch 4, 68.

13 The Bodleian Libraries (n 12).

14 The Bodleian Library (n 12); Field (n 10) 68.

15 All legislation pre-1900 has been accessed via JustisOne (www.justis.com), while legislation post-1900 has been accessed via the Legislation portal of the UK Government (www.legislation.gov.uk).

16 Licensing of the Press Act 1662, section 17.

17 Under the 1709 Act, section 5 required “That nine Copies of each Book or Books, upon the best Paper… [should be delivered up by]… the Printer and Printers thereof… [to the]… Warehouse-keeper of the said Company of Stationers, for the Time being, at the Hall of the said Company, before such Publication made, for the Use of the Royal Library, the Libraries of the Universities of Oxford and Cambridge, the Libraties of the four Universities in Scotland, the Library of Sion College in London, and the Library commonly called the Library belonging to the Faculty of Advocates at Edinburgh respectively…’.

18 Note, Davis (n 10) and Byford, J., “Publishers and Legal Deposit Libraries Cooperation in the United Kingdom since 1610: effective or not?” (2002) 28 IFLA Journal 292CrossRefGoogle Scholar appear to disagree over the total number of libraries under the 1801 Act, with the former suggesting nine and the latter suggesting eleven. Under the 1801 Act, section 6, publishers were required to deposit two further copies: “… in Addition to the nine Copies now required by Law to be delivered to the Warehouse-keeper of the said Company of Stationers, of each and every Book and Books which shall be entered in the Register Book of the said Company, one other Copy shall be in like Manner delivered for the Use of the Library of the said College of the Holy Trinity of Dublin, and also one other Copy for the Use of the Library of the Society of the King's Inns Dublin…”.

19 Davis (n 10).

20 Byford (n 18). Note, Ovenden (n 3) ch 5 observes that the move made the British Museum the “national library in all but name” (the authors emphasis), with catalogues of its stock between 1813-1819 spanning seven volumes and estimating a collection of approximately 110,000 works, “more than fifteen times the size of the Library of Congress [in the United States]” 88. For a comparative view of legal deposit in other jurisdictions, see Cadavid, J. A. P., “Evolution of legal deposit in New Zealand: From print to digital heritage” (2017) 43 (4) IFLA Journal 379CrossRefGoogle Scholar; Degerstedt, S. and Philipson, J., “Lessons Learned for the First Years of E-Legal Deposit in Sweden: Ensuring Metadata Quality in an Ever-Changing Environment” (2016) 54 (7) Cataloguing and Classification Quarterly 468Google Scholar and De Beer, M., Van der Merwe, M., Ball, L., and Fourie, I., “Legal deposit of electronic books – a review of challenges faced by national libraries” (2016) 34 (1) Library Hi Tech 87CrossRefGoogle Scholar.

21 Copyright Act 1814, section 2; Copyright Act 1836, Preamble and section 2 – the effect on Oxford and Cambridge is unclear, since they were not included, nor does it seem their entitlement was repealed, which may render the total number of deposits as seven libraries, not five. Then, the Copyright Act 1842, sections 6-8, includes Oxford and Cambridge once more, and outline the new delivery method for the British Museum.

22 Byford (n 18) 294. Note, the only known enforcement case to be brought for non-compliance was University of Cambridge v Bryer (1812) 104 E.R. 1109, (1812) 16 East 317 at the Court of the Kings Bench. No subsequent enforcement appears to have resulted in court action (based on extensive searches carried out using Westlaw, LexisLibrary, and BAILLI) (last accessed on 26 October 2020), though the duty incumbent upon publishers under the Legal Deposit Libraries Act 2003 was affirmed in MGN Ltd and others v Grisbrook [2010] EWCA Civ 1399 (Sir Andrew Morrit C). However, Byford (n 18) suggests an opposing trend was true, and that many “defaulters” were pursued for compliance with the deposit laws, 293.

23 Byford (n 18) 293. Note that the National Library of Scotland would later be established in 1925 and, much like the transfer between the Royal Library and British Museum, all non-legal stock was transferred from the Faculty of Advocates to the new library: see National Library of Scotland, Legal Deposit (Edinburgh: NLS) << https://www.nls.uk/about-us/legal-deposit >> (accessed on 23 October 2020). However, upon enactment of the National Library of Scotland Act 1925 (later repealed and replaced by the National Library of Scotland Act 2012), the Faculty – previously a deposit library with the “four universities of Scotland” – remained entitled to claim a copy of relevant published works.

24 Pedley (n 4) and Byford (n 19), the former of whom observed that the Acts had “…ceased to be adequate to ensure the continuation of a comprehensive archive of the nation's published material” 99.

25 Hansard, HC Deb, 14 March 2003, vol 401, col 578 (Legal Deposit Libraries Bill).

26 ibid

27 ibid, col 579

28 ibid, col 577

29 ibid

30 ibid

31 The Agency for the Legal Deposit Libraries, About us (Edinburgh: ALDL) << https://www.legaldeposit.org.uk/about.html >> (accessed on 23 October 2020). Though the British Library is entitled to receive items automatically under the Legal Deposit Libraries Act 2003, section 4, the Agency has nevertheless noted it has also had “responsibility for receiving legal deposit material” on behalf of the Library.

32 The Agency for the Legal Deposit Libraries (ibid). Note, Irish deposits are covered by Copyright and Related Rights Act 2000 (Ireland). Interestingly, as the Agency notes, it is maintained by support from deposit libraries. A library itself will usually receive Government funding, as the University of Cambridge does: see, for example, the University's Annual Accounts << https://www.finance.admin.cam.ac.uk/about/annual-accounts >> (accessed on 23 October 2020). The University will then contribute to the Agency, and part-finances the running of the deposit for public access.

33 See here fn 23, see too fn 49.

34 The Agency for the Legal Deposit Libraries (n 31). Though the Agency's process of request, receipt, and (re)distribution is well-established, each deposit library will have a designated contact or team who will oversee legal deposit materials – especially if the library performs another function other than acting as a deposit. A library will often therefore have to chase items if delayed or not received. However, in reality, library or archive staff are powerless to compel a publisher to deposit, or to take action, owing to the costs involved. Despite having access to software used by the Agency, to ensure an item has been requested and followed up, evidence suggests no case for non-compliance has been brought in England and Wales since 1812: see here the Legal Deposit Act 2003, section 3 and fn 23, above.

35 Pedley (n 3) 100.

36 ibid, 101.

37 See Gooding et al (n 3) and Davis (n 10) and Burgess, L, “From Stored Knowledge to Smart Knowledge” (2014) 60 SCONUL Focus 3Google Scholar. While the NPLD Regulations sought make up for the gaps within the 2003 Act, and capture materials that the Act did not, the Regulations appear poorly drafted, and in many respects clash with disability, accessibility, and copyright legislation, as the 2003 Act does itself in part. Of course, though the Regulations contain a sunset clause, and were subject to a five-year review by the Department for Digital, Culture, Media and Sport and the Joint Committee on Legal Deposit in 2019, the Government's focus on the UK's withdrawal from the EU appears to have overshadowed the growing urgency for reform: see fn 4 for access to the review, and fn 49 on the role of the Committee.

38 Gooding et al (n 3) 4. Note, webpages are processed differently, as these are not captured by the NPLD Regulations in the same way as other press: see the British Library UK Web Archive project, which it operates in addition to the law: << https://www.bl.uk/collection-guides/uk-web-archive >> (accessed on 23 October 2020).

39 Pedley (n 3) 102.

40 During this period, and with the support of publishers, the Copyright Licensing Agency amended its licence conditions to assist in the provision of material for teaching during the lockdown (and beyond), for example; however, no flexibility could be provided with NPLD deposited materials, as the access restrictions are embedded in legislation. Greater flexibility in the access to resources only facilitates a better use of them, and across a much wider range of sources; hence, the lessons learnt during the pandemic on the benefits flexible access ought to form part of a wide review of user access to deposit resources.

41 Ovenden (n 3) Introduction, 5 and ch 7.

42 ibid, Coda, 223.

43 ibid, Introduction, 8.

44 See fn 25.

45 Ovenden (n 3) ch 13, see too Coda, 225 ff.

46 Gooding et al (n 3) 9, Degerstedt and Philipson (n 20), and R. Gibby and A. Green, “Electronic Legal Deposit in the United Kingdom” (2008) 14(1–2) New Review of Academic Librarianship 55.

47 As previously noted, this article situates its understanding of legal deposit within a specialist library and university context, and is therefore limited in range. The authors recognise that any review and consultation by the Government, Parliament or the Law Commission would be required to consult on and field a much wider range of views, to ensure any review and reform of the law and policy in this area accounted for as wide a possible range of benefits to the other types of deposit libraries, which are likely to run differently to the setting discussed.

48 The Joint Committee on Legal Deposit is “… a body composed of representatives from the deposit libraries and publishing trade associations [which, inter alia,] support cooperation between publishers and deposit libraries for the effective implementation of statutory and voluntary deposit arrangements.” << https://www.bl.uk/legal-deposit/joint-committee >> accessed on 26 October 2020. Note, however, where there exists a dispute, the Committee employs a three-stage process of negotiation, mediation and arbitration, where disagreements arise over how to implement the legislation in a cooperative manner”. Its proceedings are not publicly accessible, though its most recent review in collaboration with the Department for Digital, Culture, Media and Sport in 2019 was published online: see fn 3.

49 Gooding et al (n 3) ch 5, 28.

50 See fn 22.

51 See eg Gooding et al (n 3) 7, 11, and 24-25.

52 ibid 25