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Annex E: Further Details on Territoriality

Published on February 5, 2010 in Consultations. Closed Tags: , , , , , , , , .

Further Information on ‘Published in the UK’ (Territoriality) for Online Works  

7.1.        Sections 5.3 to 5.6 of this recommendation propose a way of defining which publishers may be affected by the regulation for this category of material. This additional information about the proposed definition illustrates how it may be interpreted in practice.

7.2.        A domain name is an identification label that defines a realm of administrative autonomy, authority, or control in the internet. A single website may consist of resources with just one domain name such as ‘anyorganisation.co.uk’ or might also include resources with other domain names, such as one website linking together ‘anyorganisation.co.uk’, ‘anyorganisation.com’ and ‘anyorganisation.biz’.

7.3.        An online ‘publication’ may include any electronic file, document, image, data, web page or web application. It also includes audiovisual content (sound and video) where this represents a part, but not the whole, of the complete work; for example a news website with sound or video clips is included, but cinema films, TV and radio programmes, music albums and songs, even if provided via an online service such as BBC iPlayer, are not.

7.4.        ‘Publisher’ includes individuals, companies, groups and organisations, and is the person or body which makes a publication available, either directly or through an agent acting under its authority. This excludes persons or bodies such as internet service providers whose sole involvement is in providing the network infrastructure or the means of publishing, but who have no direct responsibility for the content.

7.5.        ‘Making available to the public’ excludes private intranets.

7.6.        ‘UK electronic address’ refers to any domain name that is associated geographically with the United Kingdom, or with part of the United Kingdom. Therefore all publications with .uk domain names are included. Any publications with the proposed .sco and .cym, domain names or any other domain names which might be created in future for UK regions, cities or towns will also be included. Because these have a UK electronic address, it is not necessary to identify where the publisher is physically domiciled.

7.7.        Some UK publishers prefer to use .com, .biz, .tv or other generic or international domain names. If the publisher has a UK ‘physical address’ they are still included, irrespective of the domain name being used. This encompasses publications made available by a publisher who is either domiciled in the UK, or a multi-national with an address in the UK, or the UK branch or subsidiary of a non-UK organisation.

7.8.        However publications are excluded if they are made available by a publisher outside the UK and using a non-UK electronic address, even though the content of such publications might be about the UK or relevant to the UK, and even though the publication might be viewed or purchased by someone in the UK. For example an online Travel Guide to London being used by a person in the UK is not in scope if it is published by a US organisation via a .com website.

7.9.        Internet Protocol (IP) addresses may indicate the location of a computer or server connected to the internet and can therefore be a useful way of identifying whether a publication might potentially be within scope. However the IP address on its own is not sufficient; the publication must either be within a UK domain as above or the publisher must have a physical address within the UK.

Annex C: Online Content to be Published

Published on February 5, 2010 in Consultations. Closed Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , .

Defining the UK Web: Publications in Scope

5.1      The Recommendation only relates to freely available online publications, which can be harvested or collected by Legal Deposit Libraries (LDLs)[1] without any requirement for action by publishers (a reflection that the publications are available to the public free of charge and accessible without restriction). Restrictions that would remove publications from the scope of these proposals may include identification, authentication/authorisation, registration, subscription, and Internet Protocol (IP) address range[2]. Material that requires compliance with a basic technical formality such as downloading ‘cookies’ should be permitted, provided that this does not entail any active (human) intervention by the publisher or website owner.

5.2      The online publications to which this Recommendation applies are not intended to include:

  • Sites outside the UK (see Territoriality below)
  • Chargeable content/commercial content
  • Sites with technical barriers
  • Secured transactions
  • Members-only areas within public sites
  • Private intranets and restricted access content
  • Recorded sound and film where such works comprise the sole or main purpose of the content or where any other material is incidental (e.g. the BBC ‘Radio Player’, any equivalents of Napster, YouTube and suchlike, and sites offering ring tones or streamed films and programmes from broadcasters).

Question 6: Do you agree that this is an appropriate definition for the type of publications that should be included in scope for regulations? Explain why. Is there anything else that should be included in this definition? Is there anything that should be excluded from this definition?

Defining the UK Territoriality

5.3      Harvesting, where online publications are collected using software that facilitates their collection and archiving, provides a simple approach to deposit of such a wide range and number of publications. The first step in harvesting is defining the parameters for collection and its required links to the UK. This definition is also a requirement of Section 1 of the 2003 Act.

5.4      In fulfilment of these proposals, the territoriality criteria proposed for publications relevant to this Recommendation are that:

  • Publishers should be based in the UK or have a UK address (physical or electronic);
  • Publications should be lawfully published or made available by or on behalf of that publisher from a UK address; and
  • Publications should be made available to the public.

The following criteria are also thought to be relevant to fixing the place of publication and, therefore, the potential relevance to any approved harvesting for the purposes of legal deposit, namely that the site from which the publication is harvested:

  • has a UK domain name
  • relates to UK-based individuals or organisations which use other domain names, such as .org, .com, .net etc. or alternatives; and
  • can be demonstrated, if an overseas publication, to be made available by a UK-based publisher.

5.5       Exceptions to this definition include publications:

  • with no connection to the UK[3] and
  • substantially consisting of sound recording or films (see Act s1 (5) a, b).

5.6      While territoriality establishes the parameters of the domain to be harvested, analysis of the domain growth and size identifies the scale of the work and some of the key assumptions underlying the calculation of costs.

5.7      Further information on this issue is set out in Annex E.

Question 7: Do you agree with the territorial definition of the UK web? Explain why. Is there anything else that should be included in this definition? Is there anything that should be excluded from this definition?

The UK Domain[4]

5.8      The category definition and territoriality rules govern what may be collected. Within these, the model used to calculate costs for harvesting assumes that the UK web space is defined as all .UK domains registered by Nominet (6.1 million in mid-2007) plus approximately 50,000 other domains which can be readily identified as published in the UK. See Libraries key costs assumptions for cost model and further information on assumptions (Annex D).

5.9      It is estimated that the numbers will continue to grow by 17% per annum until 2011, then by 15% until 2016. However, 35% of the domains are inactive, i.e. registered but not live, or where static content can be ‘de-duplicated’ after a first harvest. A further 25% are primarily ‘deep web’ or protected publications outside the scope of this category. Overall, the number of online publications in scope is therefore estimated at 3.9 million in 2007 rising to 14.6 million in 2016.

Question 8: Do you agree with this analysis of the UK Web Domain? Explain why. What do you think the impact of your analysis would be?

5.10   The average size of websites (and therefore the number of copyright works and publications that they contain) has been growing significantly each year. However, the cost model assumes that most audiovisual content, one of the major causes of growth, is out of scope, and therefore a more modest 5% growth per annum is appropriate. The average size also varies dramatically, from circa five megabytes for 80% of sites to one gigabyte for 0.5% of sites; this model assumes a weighted average of 25 megabytes.

Harvesting the Web[5]

5.11   The proposed method of collecting and preserving such a large number of publications is to ‘pull’ (harvest) them from the Web. Harvesting is an automated process, where, through the use of special software, libraries can collect publications with no action required by publishers. The costs, impact evidence, and success rate for this type of harvesting are based on a pilot implemented by the UK Web Archiving Consortium (UKWAC). The pilot, commencing in 2003 for two years (extended to September 2007), involved the selection of freely available online publications to be preserved and archived. The Consortium has so far archived more than 2,700 publications and over 10,000 instances (see http://www.webarchive.org.uk).

5.12   Harvesting conducted as part of a regulation does not require the individual permissions of publishers, as exemptions from such liabilities as copyright infringement and defamation are covered under the 2003 Act.

Question 9: How do you see a Deposit Library driven system of web harvesting interfacing with a publisher driven duty to deposit under the 2003 Act?

Question 10: How could Deposit Libraries most efficaciously ensure a comprehensive body of eligible content is deposited?

UK Legal Deposit Libraries Harvesting the Web
Harvesting Costs

5.13   This proposal involves harvesting by Libraries, therefore, the costs largely accrue to them. However, this does not impose a specific duty upon libraries to collect a pre-determined number or proportion of UK publications. Their duty is to collect in accordance with their overriding legal deposit obligations, to archive as much of the national cultural record and make it available for research within limitations of their resources and budgets. Therefore, these costs are not direct, bottom-line (cause and effect) consequences of each option. They are illustrations of what the libraries believe might realistically be achieved within their budget and resource constraints and after prioritising this activity and category of publications against other collection goals.

5.14   The cost of storage includes built-in redundancy to ensure safe preservation of the archive. However, the real cost of storage per terabyte has fallen by more than 30% per annum over the last 20 years and is expected to continue falling by 25% per annum until 2016.

5.15   Two infrastructures have already been designed and built (apart from certain elements) by the Libraries and will be used to store other digital or digitised collections as well as legal deposit material. Therefore, this cost model focuses only on the incremental systems costs (including renewing equipment every three years) plus staffing costs required to collect and preserve this category of publication. 8 Some stakeholders have reservations about the extent of harvesting and access to the harvested content and we will look at ways to overcome these concerns in our detailed policy proposals.

5.16   Costs have been analysed under the headings of selection, obtaining copyright permission, harvesting, QA, storage & preservation, resource discovery, digital rights management (DRM) & access, and other costs. They include salaries, pensions, NI and other staff-related costs, allocations for wider costs such as IT support and expenses, plus allocations for general overheads (See Annex D for more detail on costs and assumptions).

5.17   The near elimination of selection and IPR permissions activities makes harvesting a much more efficient process than requiring every publisher to deposit their own material. Total costs are estimated at £215 per annum for every terabyte archived over a 10-year period, although higher overall costs estimated at £1,132,000 per annum would be necessary for the infrastructure, harvesting, and storage, because of the greater volume collected[6]. See Libraries’ key cost assumptions Annex D.

5.18   Further information on the practical arrangements are set out in Annex F.

Question 11: Do you agree with this costing model? Explain why. Are there costs that need to be factored in or excluded?

Publishers

5.19   Ascertaining publisher costs presents a difficulty that can be ascribed primarily to the broad definition of ‘publisher’ for this category of publication, a definition that is quite distinct from that of other categories for deposit. Traditionally, publishers are a group well defined and contained by type and content of publication, as well as by business model. The online publisher of freely available publications, however, runs the gamut from the individual blogger with no revenue stream to a multinational corporation. This sheer number of publications and range of publisher types impose a considerable challenge for determining costs and benefits that suit any group of publishers, let alone cover the whole spectrum.

5.20   At the beginning of 2008, the Legal Deposit Advisory Panel undertook a survey of Trade Association publisher members, as well as non-commercial publishers that participated in the UKWAC pilot. This survey provided publishers with information about deposit as well as asked them for feedback on costs and other impacts of harvesting and archiving. The findings from the survey were as follows:

  • A majority of those commercial and non-commercial publishers surveyed supported regulation-based harvesting;
  • Not only did they think this kind of harvesting the most efficient and less invasive to their business process, but they also observed that there would be relatively little cost to them;
  • However, publishers were not able to assess the level of cost to them associated with permissions-based harvesting.

5.21   Generally, publishers cost concerns were primarily in the area of revenue and the possible impact from harvesting, and to what extent these concerns could be addressed in a rapidly changing commercial and technological environment.

5.22   As publishers do not push (deposit) publications to libraries in the traditional sense, there appears to be no specific activity from which costs can be calculated. However, there are potential risks that may have significant impacts, if not eventual costs. These include copyright protection of freely available online publications. We are awaiting the outcomes from the UK Intellectual Property Office’s Copyright Exceptions Consultation, so that this concern can be addressed in future detailed policy proposals.

Moreover, the deposit process adds a level of complexity for publishers in their agreements with third parties, either providing content or software. Indeed, there are concerns, as expressed in the Commercial Publishers Survey, over securing ongoing rights for data or images that were made available free of charge but on a time limited basis. For example, some promotional sites provide high value business information on a time-limited basis as sample data to encourage site traffic or subscription sales. Accordingly, publishers may be exposed to such liabilities as third party IPR and licensing infringement, as well as defamation, contempt of court, and libel.

Question 12: Do these assumptions adequately reflect the financial burden of publishers? Is there anything that needs to included or excluded?

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[1] For the purposes of this paper, ‘LDLs’ or ‘Libraries’ applies to all six Legal Deposit Libraries named in this Recommendation paper: the British Library, the National Library of Scotland, the National Library of Wales, and the University Libraries of Cambridge, Oxford, and Trinity College, Dublin.

[2] Where access is only enabled for users within a specified IP address range.

[3] LDAP is reviewing the use of this phrase in connection with online publications, as its inclusion here would imply that publications on non-UK related subjects, but by British authors, would be excluded from the archive. A number of agencies with helpful practices might also aid the LDLs in identifying publications ‘connected to the UK’, such as Internet Watch and Nominet.

[4] See notes under Libraries Key Costs Assumptions, for sources used to support the assumptions for the growth and size of the domain.

[5] Some stakeholders have reservations about the extent of harvesting and access to the harvested content and we will look at ways to overcome these concerns in our detailed policy proposals.

[6] This figure represents the total cost across Legal Deposit Libraries. It assumes that readers in any of the six legal deposit libraries’ premises would be able to access all materials and electronic publications that are harvested and archived by the BL/NLW/NLS infrastructures. The University Libraries of Oxford, Cambridge and Trinity College do not currently plan to harvest themselves to the same extent, but would retain the entitlement to do so.

Bob McKee, Chief Executive, Charted Institute of Library and Information Professionals

Published on December 3, 2009 in Consultations. Closed Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , .

We know that good libraries – animated by a good mix of library staff – can benefit people and strengthen communities. The CILIP Guidelines, What makes a good library service? outline what is required and what can be achieved. Modern times make the core purpose of libraries more important than ever, as is shown by the upturn in library use during the current economic downturn.

Libraries reach into every neighbourhood and every family, giving free access for everyone to all of the world’s knowledge whether of the intellect or of the imagination, whether in print or online, all mediated by skilled and helpful library staff. That core purpose addresses some of the most pressing challenges facing our society. With seven million people in Britain lacking basic literacy skills, at least six million excluded from access to digital technology, and over four million experiencing multiple social and economic deprivation, libraries should be central to our strategies for literacy and learning, digital inclusion, regeneration, equality of opportunity, and personal well-being. To fit libraries for the future, government needs to recognise the contribution they can make to key policy objectives.

Where libraries have risen to these challenges – and have invested in strategic planning, improved opening hours, better buildings, skilled staff, and an in-depth range of print and digital resources – the graph of library use is rising, not falling.

Investment in libraries produces a rich return in terms of innovation, use, and impact. We need to accentuate the positive, not reinforce a negative narrative in the discourse around libraries, public policy and popular use.

Positives such as: Investment in fine new or re-provisioned buildings like the new Newcastle City Library opened by Her Majesty The Queen on 6th November 2009. The Public Library Building Awards provide many examples, large and small, of brilliant library buildings.

Examples of innovation and impact evidenced from a number of sources: the many inspirational projects considered over the years for the Libraries Change Lives Awards; the public library services that have won Beacon Council status; the current programme of projects funded by the Big Lottery.

Development of effective and successful national partnerships delivering important local outcomes – such as the partnership with the BBC to encourage reading development, or with NHS Choices to encourage access to health information, or with organisations such as The Reading Agency and the National Literacy Trust to deliver the annual Summer Reading Challenge or last year’s hugely successful National Year of Reading.

The track record of investment in new technology not just to transform library systems and spaces (with library management systems and automated self-service operations) but also to transform library services. The People’s Network is recognised as a world class initiative to bring Internet access and help with ICT skills within the reach of everyone in the UK. Libraries don’t just embrace new technology: they do so on time, within budget, and to powerful effect.

This is not the story of a failing service and a defensive, change-averse profession. This is the story of a successful service and forward-thinking staff – and the recent response of local communities in places such as Swindon and the Wirral show how passionately local people continue to value their local library service.

But Swindon and the Wirral also highlight the major challenge facing public libraries – the inevitability, following the banking crisis, of serious and sustained reductions in public spending. Closing libraries simply to cut costs is not acceptable, as politicians in Swindon and the Wirral have discovered – but the challenge of reducing costs will not go away. Public Library Authorities need to focus on the core purpose of libraries, look closely at matching service provision to local need, and consider opportunities to drive down cost within a strategic framework of service provision.

The process of taking cost out of library services had already begun when I became a Chief Officer responsible for public library provision in 1988, twenty one years ago. After many years of seeking “efficiencies” only one opportunity remains to make significant reductions in the overall cost of public library provision other than wholesale closure of local libraries – collaboration across administrative boundaries either of place or of profession. One option is to look holistically at the public services offered in one place with a view to rationalisation of provision. The other option is to look holistically at the public library service across a region or sub-region.

A system delivered by 151 separate Public Library Authorities in England is inherently inefficient. While continuing to recognise the need for local democratic accountability, more needs to be done to explore options for collaboration and collective operation

– perhaps with an eye on the development of Librarians, established earlier this year as one public library service for the whole of Northern Ireland.

The challenge of achieving greater efficiency is matched by the challenge of sustaining investment in new technology, in three distinct ways: by using new technology to improve library operations (such as investing in RFID technology to introduce self-service to a library system); by providing access to new technology for library users (thus contributing significantly to the digital inclusion agenda: is there a librarian on Martha Lane Fox’s Digital Inclusion Task Force and, if not, why not?); and by taking the public library itself into the digital space. Universities invest in virtual learning environments. Should not public libraries, as the nation’s most cost-effective agency for lifelong learning, invest in virtual library environments?

The proposition of increased investment in libraries has come up several times in these comments. When money is tight, value for money is paramount. So a key challenge for libraries is to demonstrate their value and the return – educational, social, economic – on investment in public library service. Research shows that the Summer Reading Challenge makes a positive difference to children’s literacy levels and educational attainment. More research on impact and outcomes is needed – and the Research Councils, particularly AHRC, need to be encouraged to support such a programme of research.

Britain has a world class reputation for research and a world class reputation for libraries. But where, in Britain’s higher education system, is there a locus for world class research into the impact of public library provision?

The public library is both a local resource – at the heart of its community – and the gateway to a wider, national and international, network of resources. This presents both an opportunity and a challenge for public library services. The opportunity is to develop more national initiatives such as the introduction of a genuinely national library membership card, and the Society of Chief Librarians is well positioned to do this. The challenge is to achieve consistency so that library users experience a good quality of library service wherever they are in the country. The CILIP Guidelines provide an outline of the guidance needed, and the most useful outcome of the Wirral Inquiry could be guidance on how the statutory duty placed on Public Library Authorities might be interpreted. The task then will be to find a process which will drive a “levelling up” of public library service quality – perhaps by a process of peer review or by the use of the sort of “public library quality improvement matrix” used in Scotland.

Taking libraries forward at a time of reduced resources, increased aspirations, and changed lifestyles will require clear leadership at political and professional levels. A stronger locus for libraries within government (reappraising the roles of DCMS, MLA and ACL as recommended in the All-Party Parliamentary Group report) needs to be matched by a stronger focus on leadership within the ranks of public library professionals. When I was a Chief Officer in local government I had opportunities to understand and develop my leadership role through a variety of sources: the SOLACE Scheme of Continuous Learning for Chief and Senior Executives in Local Government; the “Top Managers” Programme run by the then LGMB; and the partnership programme between my local authority and the Local Government department of the Warwick University Business School. Where is there a similar and coordinated range of opportunities for present and future public library leaders?

The way we think about libraries reflects the way we think about society – and indeed about ourselves. If we believe in community, opportunity, equality, and democracy – then we’ll invest in our libraries even when (particularly when) times are hard. And the reverse is also true.

Modern times make the core purpose and contribution of libraries more important than ever – and the best library services show the levels of investment that are required and the levels of innovation, use and impact that can be achieved. The challenges are clear – to reduce the core cost of the service, to sustain investment in new technology (and in new buildings and new books), to demonstrate value for money in terms of the educational. social and economic return on investment, and to “level up” so that library users experience a consistently good quality of library service wherever they are in the UK. All of this requires leadership – and a relentlessly positive approach. Positive leadership has no time for the damaging and misleading narrative of a failing service and staff who cling defensively to an outdated concept of professional status. The right levels of investment, innovation, use and impact will only be achieved if those of us in leadership positions move beyond the negative narrative and focus on the positive outcomes which can be achieved by libraries – animated by good librarians – for local communities and for society in general.

Miranda McKearney, OBE, Chief Executive, The Reading Agency

Published on December 3, 2009 in Consultations. Closed Tags: , , , , , , , , , , , , , .

I have many thoughts on generic issues that would help libraries move forward including: Uniting responsibility for policy and finance at national government level and changing the National Indicator for libraries to include children’s use

But I can be most useful in concentrating on my specialism, reading.

Clear vision

We’re lacking a clear vision for libraries; that’s a real problem.

Libraries were set up to create a nation of learners and readers by giving everyone free access to the world’s knowledge. Let’s hold fast to that radical, enduring purpose but reinvent how we achieve it.

We’re not going to get modern consumers reading and learning simply by providing access to rows of books – the future needs to be much more multi-media and dynamic

Libraries’ reading role should be of profound interest to local authorities because of its impact on the population’s literacy levels, educational progress, employability, well being and sense of community.

“In a time of huge pressure to be everything to everyone it is absolutely important to clamp hold of the central pillar that holds the whole thing together – reading. Reading is your jewel-make it your future” Liz Forgan, Chair Arts Council, 2009 PLA conference

A new reading role

To appeal to a 21C public a much livelier, interventionist reading service is needed. This should be shaped with the public and delivered with broadcast, booktrade and other partners.

The last fifteen years has seen the emergence of libraries’ reader development movement. This is starting to position libraries as the community place bringing reading and learning alive and drawing us together to share it, and is pioneering interventions with targeted groups. This can be massively built on.

The most intense work has been with children’s reading and it’s no accident that children’s book issues are rising.

Social justice

56% of UK adults have literacy skills below the level of a good GCSE

25% of young offenders have reading skills below those of the average 7 year old.

If libraries build on the reader development movement they can make a serious contribution to tackling these and other problems.

Research shows this way of working has profound implications for helping people enjoy reading, for bringing communities together, building literacy skills, for helping people feel better in themselves, even for increasing community volunteering.

New ways of working to achieve a marketable common core offer

With falling visitor figures, there’s a desperate need to tell the public what’s on offer.

To do this there needs to be a common core of resources, activities and opportunities to market and a proper annual marketing drive. Recent pilot work on shared offers and programmes could be rolled out– eg the Youth Offer (endorsed by DCSF) and the national database of library readers groups.

Analyse the trends and get ahead of the curve

We could carve out a new strategic position for libraries in light of market trends, especially the contraction of the high street book retailing sector and a whole new digital world. There are new opportunities to relate to readers in new ways.

The socialisation of reading through festivals, author events, reading groups and on line conversations gives libraries a huge role in connecting readers to each other.

We need to combine all the exciting piloting of the last few years into a big, exciting new programme of action. Partners are waiting to help – from publishing to health, from BBC on a digital literacy campaign to CCE on targetting disadvantaged families.

I hope the action campaign the Reading Agency is talking about with the Arts Council, SCL and MLA can have as much impact as the Music Manifesto.

A new relationship with the public

Libraries’ reading role could be the springboard for a huge community engagement and volunteering push – young people supporting children doing the Summer Reading Challenge; volunteers running telephone groups for isolated older people.

Local people can volunteer to help select library stock, interview staff, design areas of the library.

There are models waiting to be rolled out, including HeadSpace, currently running in 20 authorities.

Partnership sparkle: a new relationship with the reading industry

Changes to reading’s business model offers new chances of harnessing the interest of publishers, booksellers and writers.

“publishers, broadcasters and arts organisations all want to work with you on new distribution models for reading… sprinkle a bit of stardust on the scene” Liz Forgan.

The Reading Agency is talking to its 34 publisher partners about new workforce development approaches

– skills sharing, shadowing, shared training. Anyone interested in words could move fluently between jobs in bookselling, publishing, gaming, libraries.

Just as film has FindAnyFilm, the reading world could co-operate to signpost the public to the right book in the right place – on or off line

A workable book sales model

Let’s roll out the model that’s starting to work through Reading Partners author events.

In return for publishers sending their authors to libraries in all kinds of communities, libraries guarantee to have books on sale through partnerships with local booksellers.

This results in happy readers, publishers, authors, booksellers.

Economies of scale combined with innovation

It’s interesting that some of the functions the APPG calls for in a national development agency are ones The Reading Agency carries out.

Including helping libraries share best practice and create economies of scale through innovative national reading programmes like the adult literacy 6 Book Challenge.

We’re small but have managed to make quite an impact, and could do more in a more effective national framework.

Arguments for and against a single publication rule

Published on November 17, 2009 in Consultations. Closed Tags: , , , , , , , , , , , , , , , , , , .

18. A possible alternative to the multiple publication rule would be to adopt a single publication rule. This would mean that instead of the limitation period running from the time of each publication of the defamatory material, it would run from the date of the first publication, even if copies of the material continued to be made and re-published years later. This would also mean that as regards defamation claims brought in England and Wales a claimant would be limited to bringing only one action in relation to particular defamatory material. It would prevent the bringing of multiple claims in the way that is possible at present. However, any such rule would not affect the possibility of a claimant suing abroad in respect of the publication of the same material in one or more foreign jurisdictions.

19. A single publication rule would provide clarity and prevent the possibility of open-ended liability. It would also remove some of the potential obstacles presented to defendants by the multiple publication rule, such as the possibility of having to mount a defence against an old claim. However, while there would be significant advantages for the defendant, a single publication rule could restrict the claimant’s ability to secure redress, particularly in situations where he or she was unaware of the original publication. This could be a significant disadvantage in respect of material published online as it would mean that if the claimant did not bring an action within the limitation period (for whatever reason), the defamatory material could remain accessible indefinitely. Even if a successful action was brought, it is possible that the defamatory material could remain in the public domain and the claimant could not bring a further action in respect of that material against the same publisher.

20. In these circumstances, a claimant may be further disadvantaged as there would no longer be any incentive on the host of defamatory material to remove or amend it, since there would be no risk of an action being brought against them. Currently, the failure to remove the material or attach a notice to it once the host became aware of it or its potentially defamatory nature would effectively lead to a new cause of action in respect of each ‘publication.’ ((See, Byrne v Deane [1937] 1 KB 818, 837-8)) This would cease to be the case should a single publication rule be adopted. One possible way of addressing this could be to provide that if material were found to be defamatory in one format (e.g. the print edition of a newspaper) then it would be obligatory for the material to be amended or removed where it was held in other formats under the control of the same publisher. Another option might be to provide that, where material is re-transmitted in a new format (i.e. a new article is written making use of a link to or a quotation from the original material) then any single publication rule would only protect the previous publisher and would not protect the publisher of the new article.

21. There is currently an obligation placed on the press ((See, the Press Complaints Commission Code of Practice, http://www.pcc.org.uk/cop/practice.html, paragraph 1)) and broadcast media ((Section 319 of the Communications Act 2003, through the Ofcom Broadcasting Code and the BBC producer’s guidelines)) to correct inaccurate and misleading material, which means that untrue defamatory material should be removed. However, adherence to the Press Complaints Commission (PCC) Code is purely voluntary, and although there is a statutory obligation on the broadcasting media, the internet is specifically excluded. This means that the controls to which ISPs are subject are entirely voluntary and codes of conduct apply only where the ISP signs up with an organisation such as ISPA ((http://www.ispa.org.uk/about_us/page_16.html)) or in situations where the PCC Code may apply. If a single publication rule were to be adopted it could therefore be necessary to consider whether there was a need to strengthen these provisions

22. It would also be necessary to consider what would constitute a new publication. In relation to hard copy publications, in the United States it has been held that morning and afternoon editions of newspapers constitute separate publications, ((Cook v Conners 1915 215 NY 175)) as do hardback and paperback editions of a book. ((Rinaldi v Viking Penguin, Inc (1981) 52 NY2d 422)) However, although the same previously published article appearing in the next edition of a monthly magazine will be a separate publication, the reprinting of a magazine edition in response to public demand does not constitute a new publication. ((Restatement (Second) of Torts, s 577A, illustrations 5 and 6))

23. In addition, there would be a need to consider whether online material that has been modified should be classified as a new publication. This issue was considered in relation to a website in the United States in Firth v State of New York. (((2002) NY int 88)) This case concerned a report published at a press conference which was then placed on the internet the same day, but the claim was not filed for over a year. It was held that the limitation period ran from the time that the article was placed on the website, and that each “hit” on the website did not amount to a new publication. It was also held that unrelated modifications made to other parts of the site were irrelevant and did not create a new publication.

24. The adoption of a single publication rule would also impact on material published offline as, if an action had already been brought in relation to material published online, it may prevent further action being brought in relation to hard copy material. It would not appear appropriate for any change to apply only to online archives, as this could cause confusion and create unfairness, as the rights of claimants and defendants would differ according to the means by which the defamatory material was accessed. Any changes made to the law purely to take account of the issues arising from online archives could have undesirable consequences and affect areas of the law that currently operate without problems. The Government therefore believes that any change to the law to introduce a single publication rule would need to apply to all defamation proceedings.