CO Deposit Rule Expansion Proposal Draws Library Support, Industry Concerns

The Library Copyright Alliance was among stakeholders that strongly supported the expansion of the deposit requirement. LCA said that the requirement expansion was needed “because of the critical role of deposit in building the Library’s collection and ensuring long-term preservation of these works. The rule would apply narrowly: covering works available only online, not those also produced in physical form.” If the mandatory deposit requirement expansion doesn't occur, “works created in the digital age could be lost forever,” LCA said. “We have seen this loss happen in the film industry. Approximately half of all films made before 1950, and most silent films, are unavailable because no effective mechanism existed at the national level to preserve these important pieces of our cultural heritage and history.” LCA urged the CO to seriously consider expanding the requirement even further than proposed to include “other categories of works, such as photographs and films, to ensure that all types of works are adequately preserved and included” in the LOC.

The UCLA Library said “the preservation and access challenge grows” as more knowledge and cultural materials “are born digitally and exist only online.” Without expansion of the mandatory deposit requirement, “we risk the disappearance of vital documentation because the content will simply cease to exist,” the library said. “The compliance procedures should anticipate and allow for changes in information-delivery technology. We also support further future expansion of the rule to encompass other at-risk, online-only documentation including photographs, videos, film, and social media.” The University of Virginia Library urged the LOC to “seize the opportunity” given under the mandatory deposit requirement “to collect where other libraries cannot, and to ensure that our increasingly digital cultural record is preserved for future generations.”

The Authors Guild said it's “not completely opposed” to expanding the mandatory deposit requirement to include online-only books “because, as our national library, we believe that the [LOC] should include online-only books in its collections. The percentage of culturally and historically important texts published only online has increased dramatically in recent years, and is likely to increase even more significantly in the coming years.” But the group said it believes there are “several major complications in applying” the requirement as envisioned in the 2010 interim rule that the LOC needs to address before the rule can be effectively expanded. The LOC needs to better define what constitutes a “book” and an “online-only” book so it also includes print-on-demand works, the guild said. The LOC needs to ensure the security and access restrictions applied to online-only publications also apply to online-only books “with the caveat that allowing researchers to print out copies of books could serve as a substitute for the purchase of these works (even with the fair use restrictions),” the guild said.

The Copyright Alliance said it believes it's “essential” that the LOC “develop an eCollections strategy” in advance of any expansion of the mandatory deposit requirement. “We do not get a sense that the Library has such a strategy, and if it does, that strategy has not been communicated,” the CA said. “Online-only works present considerable legal, technical, security and other challenges to the legal deposit system. Digital collections cannot be built using the ad hoc process that has been used in the past with physical works.” Once a digital collections strategy is in place, “we will be able to assess whether the strategy would benefit from the proposed categorical expansion” of the requirement “or whether an alternative approach for expanding the Library’s collections would be better,” the CA said. The group said it's particularly concerned about how the LOC implements security measures designed to prevent unauthorized reproduction and distribution of collected online-only works. “What security measures would be put in place for future online-only works collected by the Library (as different works may require different types of security)?” the CA said. “What steps will the Library take to limit damage when it becomes aware that this security has been breached? What steps will the Library take to routinely and frequently evaluate the effectiveness of the existing security and explore new security technologies?”

The Software & Information Industry Association noted similar concerns about what it considers the LOC's lack of a digital collections strategy, which SIIA said is “compounded by lingering questions over the ability of the library to execute that strategy at this time.” Although the LOC has made progress in improving its internal governance and IT management program, “the status of its efforts remains opaque,” SIIA said: “Our concern over these questions is compounded by concerns over the operation” of the LOC's existing digital collections systems. The LOC should be more transparent about plans for improving its IT systems program and digital collections strategy, as well as evaluating the efficacy of other private-sector and public digital collections programs like the British Library and JSTOR, SIIA said. JSTOR is a digital library of academic titles. Addressing LOC IT systems problems “will shed light” on the library's long-term ability to store additional digital collections, “how to prevent unauthorized use, and how to notify the rights owner if a security breach has occurred,” SIIA said.

The Association of American Publishers also raised concerns about LOC readiness for expanding digital collections to accommodate additional required digital deposits. The group suggested partly that it would be easier to evaluate LOC readiness if the library released “reliable information on the current size, composition and status” of its collection of online-only publications. AAP urged the LOC to clarify how it “plans to ensure copies of electronic books are not reproduced and distributed without authorization once they leave the Library’s servers.” An expanded deposit requirement also may duplicate other federal programs “that already cover electronic resources,” including LOC's Cataloging in Publication program, which is to be expanded to include online-only books, AAP said. The group also noted the potential for the expanded requirement to duplicate the LOC's coordinated collection development with the National Agricultural Library and the National Library of Medicine.

RIAA said it questions “the need for a government-mandated deposit program for online-only sound recordings” given what the group views as significant private sector-led efforts to digitally preserve sound recordings. “With respect to hard-to-find historical sound recordings our members have already shown themselves to be willing to advance the cause of digital preservation of sound recordings by means of voluntary agreements,” including the Universal Music Group's donation of its pre-1948 master recordings to the LOC, RIAA said: “With respect to newer, commercially available sound recordings, we agree with the Copyright Office that” the vast majority of more recent sound recordings “are widely available online through a variety of digital music services, some free and some available for modest subscription prices. Given this ubiquity -- which will likely grow in the years to come -- we are hard-pressed to see any need to extend the on-demand deposit requirements to online-only sound recordings.” Even if the LOC believes the requirement expansion is needed to acquire preservation-quality copies of recordings, “private agreements -- like the ones that Sony and Universal previously entered into -- are a superior acquisition tool than a regulatory mandate,” RIAA said. “Private agreements are more flexible, can be tailor-made to the materials at issue, can include industry-standard security requirements and can include additional benefits flowing in both directions ... that would not be included in a one-size-fits-all regulation.”

The American Society of Journalists and Authors, National Writers Union and Western Writers of America jointly opposed the 2010 interim rule that expanded the deposit requirement to include online-only publications and any proposal to expand the rule to other online-only content. “There are currently far too many missing pieces of information for us to consider supporting the mandatory deposit of 'e-books,'” the writers groups said. “Notable among such missing pieces is any definition of what constitutes an e-book. Using the transmission method alone to define such works would be highly confusing.” Congress and the CO should instead “ simplify the procedures and reduce the fees for registration of electronic works,” the groups said. “We urge the creation of a mechanism for group registration of multiple works distributed electronically on multiple dates, for a single fee with a single form.”