I noted yesterday that publication of the Copyright and Related Rights (Miscellaneous Provisions) Bill 2016 has come a few steps closer. From the perspective of education, the Bill will implement the Marrakesh Treaty to facilitate access to published works for persons who are print disabled, facilitate distance learning and access to education over the internet, extend copyright exceptions to promote non-commercial research, and affirm that libraries, archives and educational institutions may make copies of works in theirs collection for preservation and exhibition purposes. The Bill will also extend “the existing copyright deposit provisions relating to books to facilitate the creation of a Digital Deposit on a voluntary basis”. Other countries (such as the UK and most other EU countries, Australia, Canada and New Zealand) have extended legal copyright deposit to digital and online publications, but no-one is systematically capturing Ireland’s .ie web domain, and it is on that issue that I want to focus in this post.

The first question is: what is legal copyright deposit? It is the ubiquitous statutory obligation (in Ireland, pursuant to section 198 of the Copyright and Related Rights Act, 2000 (also here) on publishers and distributors to deposit at least one copy of every print publication, free of charge, in designated (pdf) legal copyright deposit libraries. As UNESCO explains (pdf):

Legal deposit legislation serves a clear national public policy interest by ensuring the acquisition, the recording, the preservation and the availability of a nation’s published heritage. Such a national collection is undoubtedly one of the major components of a country’s cultural policy and should also be considered as the foundation of a national policy of freedom of expression and access to information. The role of a legal deposit system is to ensure the development of a national collection of published material in various formats. It should also support the compilation and the publication of a national bibliography in order to ensure bibliographic control over a comprehensive deposit collection. Finally, effective legal deposit legislation guarantees, to citizens and researchers within the country and abroad, access to a research collection of the country’s published material.

The second question is: why extend legal copyright deposit to digital works? Ireland is a digital economy, reflected in the commitment to innovation underpinning the most recent Action Plan for Jobs (January 2016 (pdf)). The Programme for a Partnership Government (May 2016 (pdf)) pledges to “combine all our different talents to build a strong economy”. And the Taoiseach has recently celebrated “unexpected innovation” and “great leaps forward in science, the arts, or in politics” (Inspirefest, June 2016). As the Copyright Review Committee pointed out, economic innovation is fostered by creativity, ingenuity, renewal and transformation in all of their forms – artistic, cultural, educational and social, as well as economic. Digital deposit facilitates all of these initiatives and developments, and its absence from current Irish copyright law therefore places the Irish economy at a considerable competitive disadvantage by comparison with all of the other countries which have introduced legislation on this point. Hence, the proposal to extend legal copyright deposit to digital content can only be welcome.

Indeed, it is necessary. Digital data is increasingly fugacious. Within a year of publication, 40%-60% of web resources are gone or unrecognizable, and the median lifespan of web pages is less than 10 years. If something is not done, there will be a digital black hole of content lost forever from the live web, and government publications, online newspapers and current heritage will be lost to us and to future researchers. As the balance between print works and digital material continues to shift away from the former in favour of the latter, this scale of the problem will increase and multiply; and the role of copyright deposit institutions will diminish and decline. It is imperative, therefore, to extend existing legal copyright deposit obligations to digital content.

The third question is: how to achieve this extension? Among the recommendations made by the Copyright Review Committee in the Modernising Copyright Report was a new section (section 198A) in the 2000 Act to extend the existing copyright deposit regime for print publication in section 198 to digital works. In my view, those proposals struck a fair and appropriate balance between the various competing interests on this issue, permitting a thorough collection and preservation of our digital heritage, whilst also encouraging cultural and economic innovation and preventing a competitive disadvantage with other similar countries (although, as I was chair of that Committee, I would say that, wouldn’t I?). It is not clear to what extent the Bill recently proposed by the Minister is likely is reflect these proposals. I am certain that they can be improved, but I remain convinced that they are an excellent starting point for achieving a feasible digital copyright deposit regime in Ireland.

Moreover, it is not clear exactly what is meant by the reference in the DJEI’s press release to facilitating “the creation of a Digital Deposit on a voluntary basis” (emphasis added). The Modernising Copyright Report proposed that the copyright deposit institutions could decide which digital publications and internet resources they wish to claim and how they wish to claim them. If the “voluntary basis” mentioned in the press release reflects this proposal, that would permit those institutions to claim or collect the digital publications which they see as important. However, if the “voluntary basis” means that compliance on the part of publishers or websites is optional, this would not reflect international best practice. Worse, if publishers do not comply with digital deposit requests, then that would entirely undercut the very reasons for digital deposit in the first place. Non-compliance would render the whole process pointless, the digital deposit provisions would become a legislative dead letter, and we would end up on the wrong side of history.

In the end, therefore, to enable us to meet the needs of consumers, innovation, and heritage in the digital age, legal copyright deposit institutions should be able to collect not only our print history but also our digital history. The sooner that our legislations is amended to achieve this end, the better.