Evolution of legal deposit in New Zealand

Abstract

The evolution of legal deposit shows changes and challenges in collecting, access to and use of documentary heritage. Legal deposit emerged in New Zealand at the beginning of the 20th century with the aim of preserving print publications mainly for the use of a privileged part of society. In the 21st century legal deposit has evolved to include the safeguarding of electronic resources and providing access to the documentary heritage for all New Zealanders. The National Library of New Zealand has acquired new functions for a proper stewardship of digital heritage. E-deposit and web harvesting are two new mechanisms for collecting New Zealand publications. The article proposes that legal deposit through human rights and multiculturalism should involve different communities of heritage in web curation.

Keywords

Digital heritage Legal deposit national library New Zealand web archiving

Introduction

Legal deposit emerged as a cultural measure whose purpose is to collect and preserve the print production of a country. Its diffusion occurred in step with the development of information technologies, starting with the emergence of the print market. Legal deposit has been a relatively static legal institution. It evolved in the 20th century to extend its scope in accordance with new technologies. The shift to a digital culture is a turning point in the way legal deposit operates and is conceptualized.

Traditionally, legal deposit has been defined as an obligation to deliver copies of publications to a national institution (Larivière, 2000: 3). The word ‘deposit’ in the sense of the publisher’s obligation to deliver a copy to a national library was used for the first time in French copyright law in 1793.¹ It was a term transplanted from its previous use in industrial property legislation.² New Zealand legislation refers to the compulsory delivery of books instead of using the term ‘legal deposit’. In 1999, the District Court of Auckland explained that ‘legal deposit is a fine sounding but misleading expression’ and that the term ‘deliver’ ‘refers not merely to arranging a service by way of transport but to the transfer of possession and, with it, ownership of the required books’.³ However, legal deposit as a legal institution has created its own identity. Its name is not misleading anymore. It is clear that the obligation to deliver copies of publications to the National Library is the equivalent of ‘legal deposit’, even if the legislation of countries such as New Zealand and Singapore does not mention this term.

Legal deposit has been adopted worldwide (Jasion, 1991). The diffusion of ‘legal deposit’ throughout the world in recent years is a consequence of globalization and international organizations promoting literacy, library and cultural policies. UNESCO and the International Federation of Library Associations and Institutions (IFLA) are global fora for the diffusion of legal deposit legislation, concepts and practices (IFLA, 2011; UNESCO, 2015). In addition, the consolidation of national libraries as institutions with their own identities, and legislative and administrative foundations, is part of the standardization of the institutional frameworks of nation-states. National libraries have become institutional centres for national information services, including management of documentary heritage. The compulsory delivery of publications is a legal transplant that is shaped by cultural contexts, technological capabilities and information policies.

This article examines the development of legal deposit in New Zealand. First, I trace the origin of legal deposit. France created the first legal deposit law that then inspired the development of this legal institution within other jurisdictions. Second, I consider legal deposit in New Zealand. While the New Zealand system has its roots in British legislation, the historical and institutional experience of its National Library differs substantially from that of the United Kingdom’s. I analyse the context in which legal deposit was discussed in New Zealand during the 19th century. Legislation was only enacted at the beginning of the 20th century. The National Library of New Zealand/Te Puna Mātauranga o Aotearoa was created in 1965, becoming in the following years a primary depository institution for safeguarding published documentary heritage. Finally, I examine the transformation of legal deposit in the digital age and the new functions of the National Library for stewardship of digital heritage.

Origin of legal deposit

Legal deposit appeared in the 16th century with the origin of policies of national identity within the building of modern nation-states. Accordingly, it reflects the close relationship between cultural heritage law and national identity. Legal deposit was a pioneering law aimed at bringing about the centralization of cultural resources.

The appearance of print culture created interest in the collection of all publications. In 1470, Jean de la Pierre, Prior of the Sorbonne, installed the first printing press in France (Diderot, 1861: 77). The Montpellier Ordinance of 28 December 1537 issued by King François I required that every printed book be sent to his library in the Château de Blois with the objective of collecting books for safeguarding the memory of humanity for posterity. Contemporary legal deposit legislation across the world is rooted in the Montpellier Ordinance. It was the first legal deposit legislation in the world after the advent of print culture (Lemaitre, 1910: ix). The establishment of legal deposit was part of the origins of the modern state (Dreyer, 2003: 9). Legal deposit was a cultural heritage law during the Renaissance, by which a central government collected cultural resources. The Ordinance embraced within its criteria the collection of every book in every language, of any discipline, printed and circulating in the territory under the dominion of François I.

Legal deposit emerged in England during the 17th century as a measure to increase academic collections for the use of scholars through a private agreement between publishers and the Bodleian Library at Oxford University. Dr Thomas James, the first librarian of the Bodleian Library (Ian, 1983: 11), was influenced by the French system of legal deposit, and proposed an agreement between the Library and British publishers. In 1610, legal deposit saw its precursor in Britain, when Sir Thomas Bodley persuaded the Company of Stationers to deliver books to his library.

Voluntary deposit, however, proved unsatisfactory. In 1613, the library received just 41 items and in 1614, 72 items. These numbers represented approximately 15% of the Company’s publications (Ian, 1983: 28). The Press Licensing Act of 1662 was the first legal deposit legislation in England.⁴ The beneficiaries were the most important universities of England – Oxford and Cambridge – with a third copy for the Royal Library. In 1710, with the origin of copyright, legal deposit came into permanent legislation.⁵

Legal deposit became compulsory throughout the British Empire with the Copyright Act 1842. However, the British Museum and the copyright libraries never claimed against colonial publishers for non-compliance with legal deposit and decided to purchase the colonial publications that they wanted (Barrington, 1938: 150).

19th Century: British settlement in New Zealand and libraries

The British settlers in New Zealand established small public libraries on their arrival. The New Zealand Company saw the foundation of public libraries as a key element for bringing education, ‘civilization’ and national identity from England (Martin, 2008, p.11). In 1858, the General Assembly Library was established (Martin, 2008: 13). The main function of the library was to provide support to the legislature. In 1861, the Library Committee of the General Assembly Library decided to comprehensively collect publications about New Zealand. This collection was developed through donations, exchanges and purchases. In 1863, the Library started comprehensively purchasing New Zealand-related books (Martin, 2008: 27).

In 1869, for the first time, the New Zealand Parliament debated library legislation (Traue, 1998). The Public Libraries Act was passed in 1869.⁶ In addition, Parliament discussed establishing legal deposit. The argument for legal deposit provisions was inspired by the legislative experience of England and other European countries. The main goals of the proposal were the preservation of ‘important documents’ published in New Zealand and the strengthening of public libraries. Legal deposit was to be part of a library policy regarding preservation of and access to the colony’s literature. However, preservation of documentary heritage was not regarded as a priority, and the proposal was eventually dismissed due to a lack of time for drafting a Bill.

During the 1869 parliamentary debate, MP Thomas Potts suggested that all New Zealand publications should be available in public libraries (Journal of the House of Representatives New Zealand (JHR), 1869). This pioneering proposal sought to decentralize documentary heritage by providing repositories and access across the country. In addition, he recommended creating a copyright register, and establishing registration and legal deposit as requirements for copyright. In the debates, it was stated that: ‘certain quid pro quo should be exacted from authors or publishers as would entail upon them the necessity of furnishing a certain number of copies of their works’ (New Zealand Parliamentary Debates (NZPD), 1869). Legal deposit was considered as a tax or compensation for granting copyright. Previous debates about legal deposit in the United Kingdom used the same arguments. However, strong interest in creating a national collection only came about over a decade later.

In the 1880s, interest in comprehensively gathering New Zealand publications arose. In 1884, the General Assembly Librarian pointed out the urgency of preserving ephemeral publications he considered to be of important historical importance. He stated:

It is a matter of regret that no means have ever been devised to secure a more complete set of the pamphlets that appear from time to time in various parts of the colony, many of which, though published in this fugitive form, are of permanent value. (Macgregor, 1884: 2)

Although this concern did not receive attention from the Government, some private collections took up this heritage role (Ross, 1997: 206). In 1885 Alexander Turnbull started a collection of New Zealand publications, including a wide range of journals (Barrowman, 1995: 3). This private collection was donated to the country and later became a part of the National Library soon after its foundation.

Selection for the collection in the General Assembly Library prioritized books over journals and ephemera. The General Assembly Library with its limited budget bought only printed materials relating to New Zealand. The library unsubscribed from periodicals considered superfluous, or unnecessary (Collier, 1888: 1). In 1888, J Collier, librarian of the General Assembly Library, proposed creating a National Library and establishing legal deposit, for which the National Library would become the deposit library. The main reason for proposing legal deposit in New Zealand was to preserve a copy of each New Zealand publication, especially pamphlets and ephemeral publications. Collier highlighted that:

…[M]any pamphlets of very great value for the early history of the Colony have been issued – they were never really published – at local presses, and, except for a stray copy here and there, have disappeared. Pamphlets of similar importance continue to be so issued, in order (but for the vigilance of librarians) to meet the same fate. What is urgently wanted is the enactment of a municipal law providing that at least one copy of every Colonial publication shall be deposited in a central library. (Collier, 1888: 3)

In this way, the New Zealand approach was different to the first legal deposit legislation in Europe. In England and France, the focus of the first legal deposit legislation was on books, not ephemera and pamphlets. However, ephemeral materials and periodicals were the most common means of publication in New Zealand. These kinds of publications were not a priority for the General Assembly Library budget and, as a consequence, legal deposit was the best policy option for acquisition of them.

20th Century: Legislation for preserving documentary heritage

At the end of the 19th century, New Zealand bolstered its memory institutions in order to strengthen nationalism (Gentry, 2015: 132). The Government’s school and library policies increased literacy levels, and national documentary collections and national literature were seen as tools for building a sense of nationhood (Sinclair, 1986: 46). The legislative attempts at enacting legal deposit during the last two decades of the 19th century represented an increased feeling of national identity and reflected efforts to preserve the heritage of the country.

Finally, in 1903 the General Assembly Library Act established the obligation for legal deposit.⁷ Unlike the British tradition, this legislation was separate from the Copyright Act. The General Assembly Library in Wellington became the depositary of books. With these functions, the Parliament’s Library became in practice the national library. However, the General Assembly Library was focused on providing services to a limited group in society.

The General Assembly Library Bill was an initiative of the Joint Library Committee. The Colonial Secretary, Sir JG Ward, supported the Bill taking into consideration Britain’s Copyright Act as a measure that would be important to imitate in New Zealand. He stated in Parliament that New Zealand was ‘simply following in the footsteps of the Mother-country’ (Ward, 1903: 43). In addition, he emphasized the difficulty in obtaining and preserving the large number of publications issued in New Zealand. He suggested that the deposit library should be regarded as the national library. This very short Act (only 2 sections) was publicly perceived as a measure for the preservation of documents for the history of the country. For instance, the Evening Post newspaper reported the enactment of the General Assembly Library Act highlighting that:

Of many publications in this colony, some of them of great historic value, there is now little or no trace, and so far as any official collection is concerned the lack of foresight in past years can never be properly remedied. The next best thing, however, has been done – the prevention of a continuation of the omission. (Anonymous, 1903: 6)

One main objective of the legal deposit provisions was to create a central national collection.

Ephemeral publications, such as pamphlets and leaflets, were considered an important part of the memory of the country during parliamentary debates. However, the value of preserving these materials was strongly disputed. The MP Lee Smith said that the ‘Bill would result in filling the library with all kinds of rubbish’ (NZPD, 1903: 338). Supporters of their preservation highlighted that very few books and works of literature had been published in New Zealand compared with a large number of pamphlets and other ephemeral printings. In addition, New Zealand legislators learned from British experience that over time ephemeral publications acquire a historical importance and also high economic value (NZPD, 1903: 337). A persuasive argument during the debates was that in many cases, pamphlets and small books increased over twenty times in value. Extending this reasoning to all types of publications, the Attorney General pointed out that:

A book published today might not be of much value, but in years to come it might be exceedingly valuable, and it was of the utmost importance to have in this library all works which might hereafter turn out to be of considerable value. (NZPD, 1903: 337)

The British experience supported arguments in favour of legal deposit of ephemeral publications in New Zealand.

Hundreds of 19th-century publications related to New Zealand were not part of the collections of the General Assembly Library. Through legal deposit and purchasing the General Assembly Library intended to make a comprehensive collection of New Zealand publications. This agenda garnered support for the Bill (Ward, 1903: 43). Legal deposit with a comprehensive scope was supported on the grounds that interesting and important material might escape the selection of material to be purchased, which would affect ‘the public benefit’ (NZPD, 1903: 338). Simultaneously the Library was contacting second-hand booksellers in the country and overseas to obtain copies of all out-of-print and rare New Zealand books (Wilson, 1905: 2).

In 1904, the deposit law came into force. The General Assembly Library received around 40 publications, and publishers were notified of their legal obligations (Wilson, 1904). Pamphlets and ephemeral publications were difficult to acquire, mainly because small publishers produced them. Such publications were considered worthy to acquire because they represented ‘valuable sources of information for the social or political historian of the future’ (Wilson, 1910: 1). The lack of legal deposit compliance worked against the goal of creating a comprehensive national collection.

Copyright legislation and legal deposit

In 1908, legal deposit became part of copyright legislation, with the 1908 Copyright Act taking its legal deposit provisions from the General Assembly Library Act.⁸ A contemporary commentator considered that inclusion of New Zealand legal deposit within the Copyright Act was illogical due to the lack of formalities for granting copyright protection in New Zealand and rightly concluded that the association between copyright and legal deposit ‘is presumably in imitation of Britain’s legislation’ (Collyns, 1987: 121). However, the imitation was partial. In 1913, the House of Representatives included within a Copyright Bill the compulsory delivery of five copies of every publication: a copy for the General Assembly Library and four copies for the University Colleges in New Zealand. The delivery of copies to universities followed the model of British copyright legislation. Unfortunately for the University Colleges the New Zealand Legislative Council modified the Bill limiting the deposit to two copies for the General Assembly Library.

The scope of legal deposit changed with the Copyright Act 1913. The original goal of the General Assembly Library Act was to collect all imprints published in New Zealand, including republished books.⁹ The Copyright Act 1913 limited legal deposit to books first published in New Zealand.¹⁰ The narrow scope of the new legal deposit provision overlooked the heritage concerns for creating a comprehensive collection of all New Zealand publications. In addition, the Copyright Act established two kinds of deposits, legal deposit for the Library (compulsory) and copyright deposit for the Copyright Office (voluntary).¹¹

National Library of New Zealand

The National Library of New Zealand was created in 1965 (National Library Act, 1965). In 1966, the General Assembly Library became part of the National Library together with the Alexander Turnbull Library and the National Library Service. The Alexander Turnbull Library is the national research library for culture and history of New Zealand:

dedicated to the collection and preservation of the records of human knowledge and endeavour and to the enrichment of those records through the fostering of research and publication. The library is responsible for the long-term preservation of the national collection of library materials relating to New Zealand. (Director for the year 1984/1985, 1985: 112)

In 1966, the Alexander Turnbull Library started to compile the New Zealand National Bibliography. In 1967, the National Library sought to receive one of the deposit copies of the General Assembly Library (Martin, 2008: 164). One of the main characteristics of any national library is to be the main deposit library (Fuentes, 2003). In 1971, the Copyright Act was amended to resolve the lack of compulsory copies for the National Library. The amendment passed without any discussion in the Parliament. The legal deposit was extended to three copies, two copies for the General Assembly Library and one copy for the Alexander Turnbull Library. The Library celebrated this amendment with optimism for creating a more comprehensive national collection (Bagnall, 1972: 37).

The responsibilities of the National Library include the achievement of legal deposit functions. The deposit operates within an institutional framework, ensuring easy accessibility to works by the public and supports the creation of the national bibliography (Department of Justice, 1989). The reforms of legal deposit administration have strengthened the heritage role of the National Library. In 1985, the administration of legal deposit was transferred from the General Assembly Library to the National Library. In 1987 staff who administered legal deposit moved to the Legal Deposit office within the collection management division of the National Library (Martin, 2008: 199). These institutional changes reinforced the National Library’s responsibilities for preserving a copy of every work published in New Zealand as part of documentary heritage.

The Copyright Amendment Act 1986 increased the number of copies to be deposited to four. The purpose of this additional copy was to build a national collection for loan services, making legal deposit collections accessible to all New Zealanders, and not just those who are able to visit the National Library in Wellington (Collyns, 1987: 122). The library community highlighted that ‘the issue of the legal deposit provision has more public interest than ever before in its 84-year history’ (Collyns, 1987: 120). The public interest centred on the change in functions of legal deposit collections, from providing information to parliamentarians to forming part of a national heritage collection as a public resource for all citizens.

The administration and functions of legal deposit in the National Library were consolidated by 1989. Decentralization of legal deposit was another issue that emerged again in 1989 when MP Clive Matthewson highlighted the importance of the Hocken Library in Dunedin and questioned the risks, associated with earthquakes, of preserving the three copies in Wellington (Matthewson, 1989). The National Library argued that the legal deposit should serve a national purpose and public service. Accordingly, the 1989 Copyright Amendment Act reduced the number of copies to be deposited to three (NZPD, 1989). In 1903, the first legal deposit law of New Zealand had established a national collection that in practice was mainly used for the reference and use of parliamentarians, a function that disappeared with the 1989 amendment. In 1994, legal deposit in New Zealand broke away from copyright legislation, the Copyright Act moved the legal deposit provisions to the National Library Act 1965.

21st Century: Legal deposit in the digital age

In the 1990s the number of digital documents distributed on tangible carriers such as compact and floppy disks significantly increased. In addition, new digital works such as video games, software and multimedia works became of daily and widespread use. However, the scope of legal deposit in New Zealand remained solely focused on print material. By contrast, in 1992, France extended the scope of legal deposit to software, databases, radio and television broadcasts.¹²

In 1996 UNESCO published the first systematic analysis of digital information and legal deposit (CDNL Working Group, 1996). This document pointed out the need to amend legal deposit legislation to include digital documents within its scope. Following this report, UNESCO published a guideline for legal deposit legislation (Larivière, 2000).

In 2003, recognizing the massive production of born digital information published only through digital networks, UNESCO released a Charter on the Preservation of Digital Heritage (UNESCO, 2003: Art 1). This charter promoted the adoption of effective measures for the preservation of digital information. The implementation of legal deposit for electronic material – voluntary or mandatory – is identified by this charter as the key action for digital heritage (UNESCO, 2003: Art 8). The UNESCO Charter encourages states to adopt legal deposit for digital content. UNESCO is concerned about the worldwide risk of losing documentary heritage but the legal and political duty to act on this concern is delegated to local and national governments and institutions. This international discussion was reflected in New Zealand national policy.

National Library Act 2003 and heritage

The National Library Act 2003 covered the obligation to deliver books and periodicals¹³ and widened the scope of legal deposit to include electronic documents.¹⁴ In addition, the Act established that the Alexander Turnbull Library had the legal duty and purpose to: ‘…preserve, protect, develop, and make accessible for all the people of New Zealand the collections of that library in perpetuity and in a manner consistent with their status as documentary heritage and taonga’.¹⁵

This was the first time New Zealand legislation used the term ‘documentary heritage’. The National Library Act brought the rationale and vocabulary of cultural heritage law to the purposes and functions of the library. Legal deposit collections, as part of the collections of the library, are included within the domain of the perpetual protection guaranteed by the Act. In addition, the recognition of diverse communities was part of the heritage approach. The National Library Act follows the bicultural framework within which New Zealand is governed. The Crown and Māori are in a partnership established by the Treaty of Waitangi signed in 1840, a founding document of the country. From the 1980s and after years of neglecting the validity of the Treaty the Government started to promote and implement policies supporting Māori language and culture. The policies of the Library reflect the Library’s consideration of the concerns of Māori communities (National Library of New Zealand (NLNZ), 2005b; NLNZ, 2010) in areas such as digitization (NLNZ, 2014a), collecting (NLNZ, 2015b) and use and reuse of the material (NLNZ, 2014b).

Digital collections and legal deposit

At the end of 2003 a digital strategy of the National Library was released stating ‘the direction for the Library to successfully confront the challenge of collecting, preserving and making accessible things digital while also unlocking, via digitisation, the value of our collections’ (NLNZ, 2003). The most prominent digitization project of the National Library of New Zealand is Papers Past. It comprises newspapers and periodicals mainly in the public domain. In this context, copyright is becoming a shaping criterion for digital heritage (Pabón Cadavid, 2014a).

Digitization of legal deposit collections is one of the initiatives carried out by national libraries to make material that constitutes the documentary heritage of each country available to citizens. The most ambitious project to digitalize national legal deposit collections is Bokhylla (The Bookshelf) project by the National Library of Norway through an agreement with the collective rights management organization Kopinor. It will provide access to the whole Norwegian national collection through the website of the National Library (Jøsevold, 2016; Skarstein, 2010). In France since 2012 the National Library (BnF) has provided the platform ‘Gallica intra muros’ providing digital access to deposited material protected by copyright; it allows searching and browsing through the digital copy within the premises of the National Library. A digital rights management system prevents users from downloading, copying or modifying the information (Derrot and Oury, 2014). In addition, during the 2015 Salon du Livre de Paris, the National Library of France announced its website www.bnfcollection.com, a digital library of 20th-century musical and literary collections providing online remote access to authorized heritage institutions across the country.

Digital collections are enriched by the collection of born digital information. The New Zealand National Library Act 2003 included the right for the National Library to undertake web archiving. Web archiving is ‘the deliberative and purposive preservation of web material’ (Brügger, 2010: 349). It is achieved by the National Library of New Zealand under two mechanisms: web harvesting and electronic deposit (e-deposit).

E-deposit

E-deposit is the online delivery of digital publications to a country’s national library. When born digital publications are deposited they become part of the national digital heritage.

In New Zealand, the scope of legal deposit covers digital publications because they are specified in the legislation.¹⁶ E-deposit is compulsory once the National Library requires a publisher to provide reasonable assistance to enable it to store a copy of a publication.

As e-deposit requires specific digital platforms, the collection criteria of national libraries are shaped by the technological limits of the platforms (Stirling et al., 2012). In practice, e-deposit has been established for the collection of specific digital material such as e-books, newspapers and visual material. In New Zealand, the National Library and Ex Libris Group developed the Rosetta deposit tool within the framework of the National Digital Heritage Archive (Knight, 2010; Peled, 2011). The NDHA provides the management infrastructure for digital heritage preservation (NLNZ, 2015a).

Legal deposit seeks to collect the tangible and intangible part of documentary heritage. Collection of print and digital objects that publish the same work is important for future researchers, for example for print culture historians. However, recent collecting plans would prioritize the preservation of digital publications at the expense of print editions. For instance, Principle 4 of the collection policy of the National Library of New Zealand states that the Library will move to give preference to collecting born-digital formats and only by exception will collect print editions of the same work (NLNZ, 2015b). The implementation of this kind of ‘principle’ could be against the spirit of the heritage mandate established in the National Library Act.

Web harvesting

The principal changes to legal deposit have been in the practice and regulation of web harvesting for collecting digital heritage. Online content changes the practice of how this legal institution operates; as Alison Elliott (2011: 4) notes, web harvesting is a ‘shift from an obligation to deposit to an obligation to copy’. Traditionally, the depositary has a passive role: the publisher deposits copies in the National Library. With web harvesting, the library’s role is active because the publisher does not deliver the publication; instead the library harvests the content from the Internet using selection criteria and schedules determined by the library. However, the National Library of New Zealand does not have a legal obligation to copy, for example during 2009, 2011 and 2012 the Library did not harvest the New Zealand domain.

The National Library started web harvesting without specific legal deposit legislation for the Internet. Without appropriate heritage and copyright legislation libraries are limited in their capacity to collect and use web material. In 1999, the Alexander Turnbull Library in New Zealand undertook its first thematic harvesting. In 2005, the Library harvested websites of political parties. The National Library was required to ask for authorization to copy the digital material on a case by case basis. If the webmasters or holders of the websites or blogs did not reply, the harvesting was not legally possible due to copyright restrictions. Furthermore, external links were not harvested (Lala and Joe, 2007: 163).

Web harvesting in legal deposit legislation means the right of the National Library to copy information published on the Internet. Legislation for web archiving allows the National Library to collect material from the Internet according to the Library’s heritage criteria. In addition to legislation, web archiving requires political and economic support on a large scale. The New Zealand National Library Act (2003) established the legal deposit of digital materials.¹⁷ In 2004 the New Zealand Government assigned NZ$24m for creating a digital repository to safeguard New Zealand digital heritage (NLNZ, 2005: 6a). Finally, in 2006 the Notice regulating legal deposit of on-line information was promulgated authorizing the national librarian to copy Internet documents.¹⁸ The National Library of New Zealand and the British Library developed the web curator tool as a response to the legislative mandate to harvest New Zealand web publications (Paynter and Mason, 2006). Since 2007 the copyright exception for doing web harvesting and the development and use of a web curator tool have been cornerstone for web archiving.

Web harvesting requires in most cases an active curatorship to facilitate the selection of material to be included within digital heritage collections. Digital curation is a new function within legal deposit and developing specific technical tools for web curation is a new role for the National Library. Digital curators in national libraries are responsible for selective and thematic web archiving (Paynter et al., 2008). The National Library Act 2003 has established a set of criteria for identifying the national heritage on the Internet. A digital publication is in scope for legal deposit when it is produced in New Zealand, or is commissioned to be produced outside New Zealand by a person who is resident in New Zealand or whose principal place of business is in New Zealand.¹⁹ This is a narrow criterion based on territoriality and residency. It creates difficulties for web harvesting of material of interest for the heritage collections of the library such as material about New Zealand published outside the country and by non-New Zealand residents.

In the following sub-sections I will discuss domain harvesting and selective harvesting as the main practices of web harvesting in creating national born digital heritage collections.

Domain harvesting

Domain harvesting is the comprehensive collection of websites published within specific Internet domains. This harvesting methodology operates through automatic processes taking snapshots of the entire domain at a specific time (Simes and Pymm, 2009: 130).

Domain harvesting operates without an active curatorship of the material that will constitute national documentary heritage. National libraries are harvesting their national country code Top-Level Domains (ccTLD) such as .nz for New Zealand or .sg for Singapore (Pabón Cadavid, 2014b). For France in addition to .fr the National Library of France extends its web-harvesting programme to the domains of the French ultramarine territories, including .re for Réunion, and .nc for New Caledonia (Stirling et al., 2012). New Zealand is contributing to its digital heritage collection through web archiving by undertaking a national domain web harvesting based on its legal mandates.²⁰ Harvesting the whole national domain is a criterion which assumes that everything published in the ccTLD is part of the national digital heritage. The library carried out web harvesting of the whole .nz domain in 2008, 2010, 2013, 2015 and 2016.

Selective harvesting

Selection of relevant web information demands curatorship and appraisal criteria. This approach operates through manual selection or through a semi-automatic process (Chebbi, 2008). Both methodologies are complementary. Selective harvesting is used for creating thematic collections with rich resources about an event or topic such as political campaigns, sporting events or a natural disaster; collection of selected websites occurs more frequently than domain harvesting. The frequency relates to the needs of each thematic harvesting project. Thematic harvestings carried out by the Alexander Turnbull Library include the Canterbury Earthquakes in 2010 and 2011, Rugby World Cup in 2011, Olympic Games in 2012 and the Winter Olympic Games in 2014.

Political campaigns have been a preferred topic for thematic web collections. The Library of Congress in the United States has archived websites related to the US presidential, congressional and gubernatorial elections since 2000 and France has been carrying out web harvesting of political elections since 2002. During political campaigns harvesting is daily or sometimes several times a day during a certain period of time (Cohen and Verlaine, 2013: 214). These thematic web archives are a rich source for research due to the topics and the quality of the harvesting. For instance, the research of Foot and Schneider (2002) analyses the political web sphere of the 2000 US campaign.

Digital curators (web archivists) from the Alexander Turnbull Library conduct thematic harvestings during the general and local elections. The archive includes websites of political parties, lobby groups, general sites and blogs (Lala and Joe, 2007: 160). But there is no evidence yet of the use of NZ web archive collections as a source for scholarship. The disconnection between the web archive and digital humanities researchers shows that one of the main goals of legal deposit collections as a privileged source for scholars is not being fulfilled. In fact, researchers are unaware of the existence of the web archive (Riley and Crookston, 2015), which means that the quality and usability of the archive has not been tested. An appropriate preservation strategy for web material cannot be developed without the constant feedback of current researchers. For instance, the interaction with researchers has shown to the British Library the importance of the look and feel and paratext in the interpretation and textual coherence of web information (Hockx-Yu, 2014: 120).

Limitations of web harvesting

Web archiving is limited by several technological constraints. The web advances faster than the technologies for its archiving. Dynamic content, deep linking, multimedia files and new formats are difficult and sometimes impossible to archive with current technologies. In fact, most of the web is not archived and material published on the Internet often vanishes forever a short period after publication (Huurdeman et al, 2015). For instance, archiving crawls fail most of the time to archive JavaScript and flash files (Hockx-Yu, 2011). In addition, technologies for web archiving in national libraries are not focused on collecting material from the deep web.

National libraries have established different appraisal criteria for selecting the material, for example, web content representing unique informational value, or the fragility of content due to risk of it disappearing (Chebbi, 2008: 30). Librarians and other staff in national libraries are in charge of creating policies and criteria for appraisal of web material. Appraisal is limited by staff resources, technical, legal and cultural considerations. Materials located outside domain harvesting and not selected through selective harvesting are currently absent from the web archive. For instance, valuable material in languages such as Chinese, Tonga or Spanish might not be identified by web curators who lack knowledge of those languages.

New Zealand is a culturally diverse society with a myriad of different communities of heritage. For instance, the Chinese community has played an important role in the development of the country since the 19th century. In addition, communities of refugees escaping from violence in countries such as Myanmar and Colombia and climate change refugees from a country like Kiribati are increasing in New Zealand. These communities will have different criteria for assessing the national significance of their materials. Participation of communities of heritage in the designation and management of their heritage is part of a new understanding of heritage as a human right (Shaheed, 2011). The absence of policies that provide mechanisms for engagement of the different communities could limit the richness and the plurality of voices in the web archive. For instance, the lack of participation of Māori in web harvesting decisions is currently a matter of concern for Māori (Sutherland, 2015: 11).

Conclusion

The study of New Zealand demonstrates that the origin of legal deposit was related to print documentary collections serving privileged groups in society. Legal deposit evolved in two main realms. First, at the beginning of legal deposit in New Zealand collections were accessible mainly for the use of the Parliament. The creation of a National Library consolidated a heritage approach of preserving documents in the service of all citizens. Second, the provisions for legal deposit during the last decade have extended to the collection of new media documents.

The compulsory delivery of books has not always been a heritage measure. The adoption of legal deposit as a measure of cultural heritage law has strengthened in the last five decades. Legal deposit as a legal institution has been consolidated by its inclusion in the National Library legislation. This shows the willingness of New Zealand governments over time to accept arguments regarding the importance of documentary heritage for New Zealand society.

In the 21st century, the law governing legal deposit has been amended, allowing the National Library to carry out its heritage functions in the digital environment. Web archiving is the most significant revision of legal deposit since its inception in 1537. Collection of online information requires national libraries to take on an active curatorial role. The traditional definition of legal deposit as the publishers’ obligation to deposit their publications in the National Library is now complemented with the right of the library to harvest digital publications according to its appraisal criteria.

The evolution of legal deposit reveals main challenges for the National Library associated with three different axes: collecting, access and use. First, appraisal criteria are used to decide what to include, but mainly what to exclude, from the digital archive. The criteria are established mainly by law, collections policies of the Library and as applied by web curators at the National Library. The law and the library policies need to be updated to incorporate the human right to heritage of diverse communities as a foundation for legal deposit including web archiving. This right could be effective by involving different communities of heritage such as Māori, Chinese, Pacifica and refugee communities in digital heritage management. These would move from appraisal criteria that are based on national significance that is focused on the nation-state, to significance to particular communities. Both approaches are complementary; they do not exclude each other and can coexist within the practices of the National Library. In practice this could be achieved by decentralization of web archiving and appointments of web curators (web archivists) from that communities. This also will promote linguistic diversity in the archive.

Second, documentary heritage created through legal deposit is the fundamental source for creating national libraries collections, and even more so now that the archiving of born digital materials is so important. Furthermore, pre-digital legal deposit collections should be digitized to bring effective access to the documentary heritage of the country to all New Zealanders. Digital technologies allow the decentralization of and access to knowledge envisaged by MP Thomas Potts in 1869. With the implementation of appropriate digital rights management systems every public library of the country could become a digital access point to the documentary heritage safeguarded by the National Library.

Third, the collection of digital information through web archiving by the National Library should boost its role as a research library. The library should build capabilities to make the collections fully usable for researchers involved in digital humanities. This requires a constant revision of the library practices, taking into account the expectations and needs of academia and different communities of users. Legal deposit in this context is no longer only about the collection of publications but about a set of actions, tools and policies that mediate heritage and promote its use and the creation of new knowledge.

Footnotes

Acknowledgements

The author would like to thank to Brian Opie, Linda Evans and Alison Elliott for their reading and comments to previous drafts of this paper. All opinions and errors are my own.

Declaration of Conflicting Interests

In 2016 the author worked as a Copyright Specialist for the National Library of New Zealand.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

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