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Legal Deposit for Audiovisual Material: Legal Deposit for Audiovisual Material‐ Preliminary survey results • Importance of legal deposit • Methodology Howard Besser & Kara van Malssen • Respondents NYU Moving Image Archiving & Preservaon Program • Findings hp://besser.nyu.edu/howard hp://www.nyu.edu/sch/preservaon/ • Future Research

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Why is legal deposit Important? Aims of legal deposit law

• Builds a naonal patrimony • Preservaon of works; building a naonal collecon, – “public interest”, “complete record of works”, “aid “to collect the cultural heritage for the future” research & documentaon”, “conserve our • Corollary objecves include: naonal heritage”, “make works available for ‐‐"to create standard bibliographic record of library material future generaons”, “systemac & published" (Malaysia); comprehensive”, “creaon of a naonal ‐‐"naonal bibliographic control" (Croaa); collecon” ‐‐so that, "commercial and self‐published work receive wide exposure" (Australia); • Is easiest to collect works when they are first ‐‐"Bibliographical registraon" (Czech); issued (rather than much later in their life) ‐‐"producon of the naonal Slovene bibliography" (Slovenia Naonal and University Libraries)

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Difficulty of researching legal Short History of Legal Deposit deposit laws for audiovisual (1/2) • 1537 France, Ordonnance de Montpellier • Legal Deposit laws for audiovisual are oen in • 1594 Belgium, then abolished 1886, reinstated 1966 many different parts of the legal statutes • 1610 Great Britain‐Bodley – Some parts are oen in library mandates, and other parts • 1661 Sweden, 1697 Denmark, 1702 Finland might be in copyright laws th • In 18 century (beginning with 1709 Statute of Anne) became – Legal Deposit for radio may be in 1920s or 1930s laws a pre‐requisite to obtaining © protecon governing use of broadcast spectrum • In 1886 Berne Convenon abolished any pre‐requisite to © – Legal Deposit for television may be in 1950s laws protecon, and countries either had to find another method governing use of broadcast spectrum for Legal Deposit, or abolish it completely (like Belgium) – Legal Deposit for cinemac film might be in import laws or • Aim evolved over years from preserving for future in tax laws generaons, to creaon of a naonal bibliograpy, to creang – Legal Deposit for digital works may be in completely research collecons IFLA 2010, Besserl/Malssen‐Legal Deposit 5 different laws IFLA 2010, Besserl/Malssen‐Legal Deposit 6

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Difficulty of researching legal Methodology deposit laws for audiovisual (2/2) • Responsibility for collecng Legal Deposits for • Invitaon to complete online survey through audiovisual may reside in different prodding by IFLA/AVMS members, CCAAA repositories • 78 Responses from October 2009 through April 2010 – Naonal Library • 16 respondents entered only their contact informaon, and 24 of the respondents were from – Naonal Archive regional (sub‐naonal) instuons – Naonal Film Archive – Discrete naonal responses combined – Naonal Radio or Television Archive, or Public – Excessively incomplete responses disregarded Broadcasng company – Minimal addional research performed, where responses – Regional specialized or non‐specialized collecons were overly vague or uninformed

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Responses from 5 Connents, Responses from 35 Countries • Australia • Luxembourg but skewed towards Europe • Austria • Malaysia • Canada • Namibia • Croatia • Netherlands • Europe 24 • Czech Republic • New Zealand • Denmark • Norway • Asia (east only) 5 • Estonia • Poland • Fiji • Serbia • Africa 3 • Finland • Seychelles • France • Slovakia • Oceania 2 • Germany • Slovenia • Greece • South Africa • North America 1 • Hungary • South Korea • India • Spain • South America 0 • Italy • Sweden • Japan • Switzerland • Latvia • United Kingdom • Lithuania IFLA 2010, Besserl/Malssen‐Legal Deposit 9 IFLA 2010, Besserl/Malssen‐Legal Deposit 10

Respondents (1/2) Respondents (2/2)

• Highly skewed towards developed part of the • Only 7 respondents cited job tles indicang their world, but does include poorer countries direct relaon to a naonal bureau/office charged with administrang Legal Deposit: • No parcipaon from South America, Middle East, most of Asia, most of Africa ‐Australia ‐Canada (as well as, Québec) • Some conflicng impressions amongst ‐Croaa instuons within same country as to specifics ‐Finland ‐Netherlands of legislaon ‐South Africa • Respondents were not Legal Deposit experts

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What is the legal raonale for legal What is the legal raonale for legal

deposit? (1/2) deposit? (2/2) • Berne Internaonal © agreement forbids making • Only 3 respondents to the queson of whether legal legal deposit a requirement for giving copyright deposit was based in copyright or tax law, but from protecon (copyright protecon must be granted write‐in notes we find that: upon compleon of a work, without any registraon ‐‐Austria, Canada, and Australia all include clauses or paperwork requirements) whereby any film or TV producon receiving • But the US gets around this by granng automac federal funding must deposit a copy. This implies copyright protecon upon creaon of a work, but that their legal deposit is not based on © prevenng the collecon of statuary damages or aorneys fees for copyright violaon unless the work has been registered and deposited

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Legal deposit Laws: A Chronology Legal Deposit Laws over me (print material) • Many existed pre‐1900 (1/3 of respondents) • Among respondents, A/V deposit laws begin to appear post WWII • Number of deposit laws appears to rise at a fairly connuous rate, except that: ‐‐‐Among respondents, number of A/V deposit laws doubled in the 1990s & 2000s (only 44% of A/V deposit laws existed before 1990)

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Legal Deposit Laws over me (a/v material) Legal deposits are not centralized

• 94% of respondents reported that their own instuon was not the only naonal legal deposits depository • Addional legal depositories, by type: – 31% addional deposit at another Naonal Library – 31% addional deposit at another Regional Library – 24% addional deposit at an AV‐specific instuon – 17% addional deposit at a University instuon

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Sub‐naonal & extra‐naonal Legal deposit is mandatory in most legal deposit requirements countries

• Both the Bibliothèque et Archives naonal du Québec (BANQ) and Libraries and Archives Canada (LAC) collect Québec provincial publicaons, thus a more complete cultural record for Québec is likely • 86% Required by Law than for, say, Saskatchewan • Similar provincial‐level legal deposit laws in certain Canadian provinces • 14% Voluntary —eg. the Manitoba Legislave Library

• Republic of Ireland has one of its 4 depositories as the Brish Library

• Redundancy as insurance, however these strategies may result in collecon inconsistencies—eg. the Bibliothéque Naonale de Québec may have beer collecon of Québec culture than Libraries/Archives Canada

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Countries with high compliance rates How is the deposit law enforced? have more serious enforcement • Only 1 respondent claimed that the law was always enforced • 2/3 of the respondents said that the penalty for non • Among those countries that claim they collect ‐compliance was a fine, but almost half of those admied that at least 90% of the legal deposits that they this wasn’t seriously enforced should ideally collect: • 15% said that jail me was a penalty for non‐compliance, but no one cited any specific example of this – All have legal requirements mandang legal • Many responses emphasized that they will make repeated deposit contacts to pester someone to comply – 80% have some kind of enforcement mechanism – “We prefer to persuade rather than prosecute. In the enre history of legal deposit we have only prosecuted a publisher once, and that was for flagrant, repeated refusal to deposit. The Library won the case.” • Only 1 respondent cited tax implicaons for non‐compliance

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How much of a country’s audiovisual Where they are collected, what output is actually deposited? A/V materials are specifically • Responses range from 5%‐100%, with most exempted? answers clustered in the 70%‐90% range • Any film gauge larger than 35mm (Canada) • mean average of 75% • Analog films (Germany) • Audio Books (Finland) • Born‐digital materials not distributed in a physical format are implicitly exempted (Australia)

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Legal Deposit is more the realm of Who is responsible for legal deposit? producers/distributors than creators • 75% say publishers are responsible • 36% say manufacturer/printer is responsible • 36% say distributor is responsible • Only 18% say author/creator is responsible • And for 18%, the naonal repository was responsible for obtaining the works on their own

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What event iniates What event iniates deposit requirement? deposit requirement? • Publicaon: 83% • Receipt of request, or claim: 17% • Specified calendar date: 14% • Other events: 21% ‐Broadcast, First Edions only

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Who pays the cost of creang Financial Support for legal deposit depository copies? • 78% of Depositories are fully funded for legal deposit This cost can be substanal for a film negave or acvies print • 11% of Depositories are parally funded for legal • 86% the Depositor deposit acvies • 11% of Depositories receive no funds for legal • 21% the Depository deposit acvies • This somewhat mirrors funding for general management of A/V collecons (74%) Governments feel that this is an acvity worth funding

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Quality and Number of copies for legal A/V Formats (1/2) deposit • • A number of respondent countries spulate Format requirements (esp. for moving images) the number of legal deposit copies based are oen weak & of commercial/public‐grade upon format: quality; – more copies for print material than for sound, ‐‐“in the form in which it has been made generally available” (Norway) more copies of sound than for video, and/or more ‐‐“formats that are meant for the market” (Slovenia) ‐‐copy “intended to be generally available” (Namibia) copies for video than for film ‐‐“form in which it is published” (New Zealand) • Only a few respondents state requirements for ‐‐ “copies, as commercially available” (Germany) ‐‐oen legislave language is vague, spulang “copies,” evidencing "complete copy," "finest copy," "best edion," lineage reflected in paper documents "of good quality”, etc.

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Not much legislave mandate A/V Formats (2/2) • Excepons to vague format specificity: specifying digital works ‐‐In France & Denmark: broadcasts are pulled directly off‐air, via satellite • Only 41% of respondents say that their law ‐‐Czech Republic: intermediate posive or negave ‐‐Korea: “a print” specifically covers audiovisual works in digital ‐‐Canada: “for a film released on a photochemical medium, the form, yet legislaon does not specify formats producer must deposit a new copy of the film made under opmal calibraon condions. For a film that is not released on that medium, the beyond, in the form in which it is “published, producer must deposit a copy recorded on a medium that ensures ” or, “made generally available.” screenings of opmum quality.” ‐‐some specificaon for “best,” “finest,” and “new” copies/edions • This can present serious digital format ‐‐*Note that, for the United Kingdom: “These principles are deliberately general and abstract, so that they can apply to publicaons in different discrepancies media, including media not yet invented.”

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What do respondent organizaons Respondents’ A/V Physical themselves collect condions aren’t good • 96% collect sound recordings • 71% collect moving image material • 50% collect sll images • 22% collect computer games • 79% collect “other media” such as websites, CD‐ROMs, soware, … • (Item # counts from survey not well responded to, and without common units)

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Respondents’ A/V Physical Preservaon Copying is an issue for condions aren’t good some instuons • Very good condion: 19% • Only 58% of respondents have the right to • Acceptable overall condion: 30% copy everything in their collecon for • Somewhat at‐risk condion: 44% preservaon purposes • • Severely at‐risk condion: 7% 35% can only copy certain works for preservaon purposes • Core cited challenges: machine obsolescence; • fluctuang storage condions; lack of 8% have no right to make preservaon copies financing for mass digizaon projects

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Most respondents cannot provide Legal Deposit for Audiovisual Material: full open access to their collecon Future Steps • 2nd round of survey responses—October 2010 • Only 31% have “open” access ‐January 2011, but first: • 65% have “limited” access – Translate survey into Spanish and Arabic? • 4% provide no public access – Clarify the text of quesons that had low response For those offering collecon access: rates • 75% cite on‐site access only – Try to hire someone to do telephone/skype interviews to get fuller responses, and to do • Only 25% report some degree of online research on the actual laws accessibility

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Thanks! Legal Deposit for Audiovisual Material: Preliminary survey results • Professor James Turner and his University of Montréal students who draed and tested the first version of the quesonnaire • IFLA AVMS Secon members and CCAAA Coordinator Kurt Howard Besser & Kara van Malssen Deggeller who helped prod libraries and archives around the NYU Moving Image Archiving & Preservaon world to respond to the survey Program • NYU Research Fellow Walter Forsberg who helped analyze the hp://besser.nyu.edu/howard/Talks/ hp://www.nyu.edu/sch/preservaon/ results • NYU Program Coordinator Alicia Kubes who handled the administrave work on quesonnaire responses

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