The Functions of Current Local Legislation in Ensuring Compliance with Legal Deposit Requirements in the Context of Electronic Age: Case Study of Zimbabwe

By
Collence.T. Chisita 1
collencechisita@yahoo.com
zakstan@cooltoad.com
Collins.chisita@afritechno.com

Abstract

This paper seeks to describe the functions of current local legislation in ensuring compliance to legal deposit laws of Zimbabwe. It will identify and describe the current legislation that deal with bibliographic compilation and explain the main problems associated with current laws considering the current challenges of an information society. The country of focus has not been able to produce a National Bibliography for the past decade because of socio-economic problems. This problem has been further compounded by the fact that the current legal deposit law known as The Printed Publications Act (1975) has not been revised to incorporate new or current trends in the medium of information storage and retrieval. The writer will seek to examine the extent to which writers, researchers, and other stakeholders in the creative productions industry are adhering to the stipulations of the Printed Publications Act with reference to bibliographic control. The paper will also explain the weaknesses of the current law with reference to the legal deposit of electronic publications. It will also assess the impact of the failure to produce the National Bibliography on Universal Bibliographic control and also on scholars and researchers who intend to study material written by Zimbabweans. It will also highlight the factors that have caused the failure to produce the National Bibliography. The writer will also examine the challenges the country faces with regards to harmonizing print and electronic resources internet in the production of a National Bibliography. It will also try to explain the steps that are be taken by The National Library and Documentation Services in ensuring that a current and comprehensive National Bibliography will be in place by 2010. The paper will also suggest some recommendations on current legislation relating to legal deposit in the advent of Information and Communication driven world and provision and access to online resources.

Keywords: legal deposit, bibliographic control, legislation, Information and Communication Technology and Online Resources.

The Functions of Current Local Legislation in Ensuring Compliance with Legal Deposit Requirements in the Context of Electronic Age: Case Study of Zimbabwe

By
COLLLENCE.T.CHISITA
Introduction
Jules Larivie’re (2000:8) describes legal deposit as a statutory requirement that any organisation, commercial or public and any other individual producing any type of documentation in multiple copies is obligated to comply with by depositing one or more copies with a recognized national institution. Legal deposit helps to secure the preservation and transmission of a national cultural heritage for posterity for the benefit of future generations. The author further states that concept of legal deposit covers all types of published materials namely those published in multiple copies and offered to the public regardless of the means of transmission and those unique or archival materials of enduring value. This requirement was initially limited to print resources but with the emergence of Information and Communication Technology amendments were made to accommodate this new development.

The use of electronic means of communication to facilitate access to information has become the norm in the modern day world. Electronic publications are those that are formatted and produced in an electronic environment, for example, electronic equivalents of print publications, interactive databases, bulletin boards, discussion lists among others. These resources have an advantage over non-electronic resources in that they Smith(1999) is skeptical about electronic resources observed how people fail to weigh the negative aspects of digital resources and how this can impact heavily and negatively on collection development. The author noted that electronic resources raise expectations of benefits, costs reductions and efficiencies that are illusory and that if this was not taken into account electronic resources can put at risk the collections and services libraries have provided for decades. On the other hand electronic resources are advantageous in that they help to save time and space and can they are relatively easier to maintain.

Zumer (1987) defines a national bibliography as the cumulation of the authoritative and comprehensive records of the national imprints of a country published regularly and with the least possible delay. This great information retrieval tool is published in line with international standards. The users of the print or electronic bibliography include librarians, end users, book traders, rights management organisations, printers, organizers of book fairs, researchers and funding organizations.

The current technological developments in Information Management are introducing both challenges and opportunities for the future production of national bibliographies. Lertshela and Lor note that the emergence of the internet and the growth of electronic publishing world wide have created a serious challenge for National Libraries as far as their mandate as the National Depositories of all published materials. The two authors also noted that before the advent of the Internet it was easier to follow up on printed publications but now electronic resources pause a serious challenge because the internet is creating room for creators of works to evade legal deposit.Oltmans (2003) notes that the internet‘s web based resources require the process of web –harvesting which will ensure that there is automatic delivery of qualitative bibliographic descriptions. Many countries especially those in resource endowed countries have embrace the concept of electronic bibliographies while those countries in resource starved areas are still grappling with putting together an up to date print or hard copy bibliography.

Jules Larivie’re (2000) notes that in some countries like France , Greece, Zimbabwe and Indonesia the measure requiring legal deposit appears in a legal deposit Act, while in other countries like Australia and United States it is part of another act like the copyright act, National Library Act , as is the case in Canada , Japan and Nigeria. The author further notes that in those countries with a legal deposit system, published materials make up the basis of the national deposit collection while in other countries like Zimbabwe audio- visual materials are also subjected to legal deposit requirements.

Davidson (1988) notes that legal deposit facilitate bibliographic control which basically refers to the system of adequate recording of all forms of material published or unpublished printed or audio –visual or otherwise which add up to the sum total of human knowledge and experience. Currently many countries have modified their legislation to encompass electronic publications as subject to legal deposit while some have excluded online electronic publications because of the technical problems relating to acquisition and preservation of such materials.

Research Methodology

The researcher made use of the qualitative research design and this involved the use of the survey technique to collect data from the research respondents who included the archivists and librarians at the National Archives of Zimbabwe and sample of publishers from Harare. This involved the use of questionnaires and interviews. The researcher also made use of secondary sources of information to complement the primary sources.

Historical development of Legal Deposit

Historically legal deposit has been used as an effective mechanism of collecting and preserving a country’s published heritage for over four hundred years. The decree of King François I in the sixteenth century was the first text imposing a legal obligation on printers and booksellers to deposit a copy of each of their publications at the King's library and this enabled the aristocracy to monitor the content of published widely distributed works. The King was an advocate of learning and the arts and this was reflected by aristocratic library that he personally owned. Fournier(1993:4) notes that the main idea behind this piece of legislation was to collect and gather current and future publications of editions of books in order to ensure that it would be possible to refer to the original work and not the modified.

The rationale for legal deposit is that it facilitates access to published materials and it also provides authors protection for intellectual property rights through copyright but on another note legal deposit has been associated with censorship because lawmakers have used have used it as a tool to detect and curb blasphemous and seditious materials. This has been one reason why some publishers avoid depositing their materials with designated institutions because they fear censorship.

Kumar (1996) observed that this new development in France was triggered by the Guttenberg galaxy which ushered in a new era of published materials which threatened the status quo and many European countries were forced to introduce similar procedures based on the French model. The library and Archives of Canada note that initially legal deposit applied to books but in the second half of the nineteenth century it was extended to include serial publications, sound recordings, multimedia kits and in the twentieth century it embraced microforms, video recordings and currently online publications. Bell (1997) noted that over the years in its initial development legal deposit was used as a tool for surveillance and censorship as well as copyright. Larievere (2003) notes that through time legal deposit evolved from the original aims of the sixteenth century which were mainly to preserve books for future generations to the constitution of a national bibliography and the availability for research of purposes of a collection of the nation’s published works.

International Conferences on Legal Deposit and Bibliographic Control

Wise (1987:304) states that there have been a number of conferences organized to promote bibliographic control, firstly, in 1967 the International Conference on African Bibliography was held in Nairobi and secondly, the SCOLMA (Standing Conference in Library Materials in Africa) held at the Commonwealth Institute in London. These conferences emphasized the importance of bibliographic control and the need to ensure the enactment of effective legal deposit laws. Ng’ang’a notes that the concept of legal Deposit was further popularised through the 1977 Paris International Congress on National Bibliography (ICBN) which came up with recommendations aimed at ensuring that member states had formulated , legislated and implemented legal deposit. These international conventions helped to provide the basis for the establishment of local and international institutions responsible for bibliographic control.

Currently Unesco is on the forefront in promoting bibliographic control and the universal availability of the world’s literary heritage. The International Federation of Library Associations IFLA has also put the concept of bibliographic control on its agenda as it has a section/division (VI) that specifically deals with bibliographic issues. It has also been observed that other countries have also set up Bibliographic Societies like the Royal Bibliographic Society of the United Kingdom. However, in Africa, it has been observed that there is no drive to create such initiative, for example, in Zimbabwe the concept of bibliographic control has not been highly prioritised .Fussler and Kocher (1977:237) noted that there was need for institutions involved in bibliographic control to keep abreast of current trends because some of the concepts of handling bibliographic data are undergoing change as format of library resources also undergo change from print to electronic.

Legal Deposit :Compliance or non-compliance?

Berger and Luckman (1966) noted that according to the social rule theory most human activity was organized and regulated by socially produced and reproduced systems of rules which are manifested in the form of codes of conduct, norms and laws like the Printed Publications Act of Zimbabwe. Laws , norms and codes of conduct are means or mechanisms for social control.Kyobe (2009) notes that compliance is a state in which someone or something is in accordance with established guidelines , specifications or legislation, for example the need to ensure compliance with Printed Publications Act Copyright and Neighbouring Rights Act of Zimbabwe. Grossman and Zaelke (2005) discuss various models or theories that explain compliance namely the rationalist and normative models. The former model focuses on deterrence and enforcement as a means to prevent and punish non-compliance, while the latter encourages cooperation and compliance assistance.

Burns and Flam (1987) note that compliance with or refusals to comply with particular rules are intricate and normative processes. The reasons for compliance are that the issue of benefits versus loses identity and status, authoritative or sacrality, negative or positive sanctions and inherent sanctions among other factors.Kyobe (2009) states that with the normative model compliance is on behavioral motivation and premised on the logic of consequence and logic of appropriateness. In the logic of consequences actors are perceived to choose rationally among alternatives based on their calculations of expected consequences, while with the logic of appropriateness human action is based on identies, obligations and conceptions of appropriateness of action.

Coleman (et.al) (1993) notes that the rationalist model of domestic compliance follows the logic of consequences and emphasizes that regulated individuals act rationally to maximize their economic self interest. The model is anchored on enforcement and deterrence as measures to transform individuals’ economic perceptions but however the model fails to consider social action based on values beliefs and emotions. Coleman (et.al) (1993) further notes that the model also fails to consider the aspect of conflict that arises as a result of lack of symbiotic mutual reciprocity as only one part gains at the expense of the other. The model does not also consider the problems and costs of deterrence.

Grossman (et.al) (2005) notes that the normative theory of compliance is premised on the notion that people obey the law because it is in their best interest but however fails to give explanations for the impact of social factors like culture and perceived legitimacy. It is assumed that laws that are developed with wider consultation and implanted fairly will be complied with if people believe that they are legitimate and fairly applied.Kohleberg (1884) noted that compliance will depend on a number of factors, for example, the capacity of the regulated entity with regards to knowledge and financial and technological abilities and commitment. The models has its shortfalls in that actors need to be conversant with standards and have authority to initiate actions and also in a dynamic environment were change is rapid and complex actors might be overwhelmed and fail to understand their obligations and to comply.

Westra (1997:121) notes that in South Africa the only case to be documented in South Africa‘s legal history was the case between the South African Library and Pippa Skotness from 1993 to 1997.This case is viewed as the only legendary case that South Africa has had to grapple with in the history of South African library services. In this case Skotness refused to comply by arguing that her copies of her expensive book as a work of art rather than a book and the Supreme Court ruled in favour of the South African Library .In Zimbabwe there are no documented cases of cases whereby legal deposit has been flouted despite the lackadaisical approach in enforcement.

Factors are affecting compliance with legislation

Kyobe (2009) notes that there are a number of factors that affects compliance for example, economic factors are manifested in the economic meltdown that characterized Zimbabwe’s economy in 2008 with an inflationary percentage of over two million. The other factors are technological, sociological and psychological, for example, because of the prevailing economic conditions at the time many publishers took advantage of the laxity of institutions responsible for enforcing the legal deposit Act and they felt it worthwhile not to comply yet it is legally wrong and ethically wrong. The failure by the National Archives to publish a National Bibliography and failure to revise and update the penalties for lack of compliance instilled a sense of irresponsibility on part of the actors. Kyobe (2009) notes that were actors are psychological unaware of the legislation there will be non-compliance.

There are various reasons why people comply or fail to comply with a specific piece of legislation, for example people will comply because the law is legitimate and fair and that there are economic benefits to be derived. On the other hand failure to comply might result from the fact that it is not deterrent enough, it lacks legitimacy and those bound by the act do not see any benefits arising from compliance. Lariviere (2000) states that for a law to be effective it needs to be enforceable and that this can be achieved through pressurizing the publisher to comply by means of a penalty structure or clause for contravening the law or some other measure that can deter non –compliance. Lariviere (2000) observed that legislation does not guarantee compliance because there are problems that are associated with enforcement. Lor (2006) note that there is need to consider a number of factors when dealing with enforcement of legal deposit , for example , legal and administrative costs because it is expensive to follow up a case right up to its conclusion.

Legal Deposit in Zimbabwean context

Made notes that the National Archives of Zimbabwe has the legal mandate to act the legal deposit center for the country and this is in accordance with the provisions of the Printed Publications Act. This piece of legislation covers newspapers, periodical or other printed publications published at regular or irregular intervals. The act defines books as “…. every part or division of a book, pamphlet, and sheet of printing, map, plan, chart, or table separately published…” The National Archives falls under the Ministry of Home Affairs. The NAZ library is a legal depository of all printed material produced in Zimbabwe. It also acquires copies of all works published outside the country about Zimbabwe or by Zimbabweans.

The National Archives of Zimbabwe also keeps any material on the Southern African and sub Saharan region that explain or depict the history of, development and any other aspect of the country. Most of these resources need to be digitized so that can be preserved forever and be made readily accessible through interlending and document supply networks. In practice, the National Archives of Zimbabwe serves as the national bibliographic center of Zimbabwe, responsible for the publication of the Zimbabwe National Bibliography (ZNB) and the administration of the International Standard Book Number Scheme (ISBN).

It also serves as the National Repository for UNESCO publications with reference to monographs and serial publications. Genge (2008:3) notes that the Bulawayo Public Library also serves a legal Deposit of printed materials considering that it is the oldest which has helped to sustain the national memory through its historic reference collection dating back as far as the beginning of the twentieth century.Haymes and Rushby (2009) noted that Anglophone countries do not provide the necessary infrastructure to maintain depository libraries and also the fact that the libraries exercised poor bibliographic controls. The two authors also further noted that legal deposit laws were unsatisfactory and difficult to enforce.

Challenges of enforcing legal deposit

Currently many countries have been forced to reexamine their legal deposit acts as a way of dealing with the challenges of digital world. Lariviere(2003) notes that the digital world presents a serious challenge to developing countries because of the complexity of addressing legal, organizational, technical and operational aspects related to the implementation of a legal deposit scheme. Lariviere (2003) observed that Namibia in 1996 and South Africa in 1997 did incorporate electronic publications within their legal deposit legislation even though the legislation deals with offline material. Generally South Africa has had a legal deposit legislation since 1842 and in 1997 and this was revised to extend the legal deposit to audiovisual broadcast electronic media and this was achieved through avoiding definition and enumeration of various media through the use of generic terms like document and media. Lor and Letshela (2006) note that Namibia had the opportunity after independence to enact a modern legal deposit act which covers all existing and to be created media as recommended by UNESCO and this is what is lacking in the current Zimbabwean legislation..

It has been observed that legal deposit of online resources present serious challenges with reference to copyright, authentication, preservation, legal and technical expertise needed to ensure ultimate success of project.Oltemans ( 2003) notes that handling and maintaining electronic resources requires new skills and different infrastructure than that of printed publications and currently there are no best practices pertaining to legal deposit of electronic resources.Tenopir (2003) observed that electronic resources also require the prerequisite hardware for reading electronic resources , for example , e-book readers.

With reference to the South African and Namibian experiences Lor and Letshela observed that the promulgation of act does not entail partial or complete implementation of a legal deposit law because responsible institutions will be overwhelmed to fulfill all the stipulations at one go unless they opt for a gradual approach. This phased approach involved separation of print materials, audio –visual and non-static resources from the dynamic electronic or online resources.

Oltmans(2003) notes that the results of scientific research are currently being published electronically because many publishers feel that they now need to license rather than sell their publications. It is interesting to know that other countries within the Southern African Development Community have already taken the initiative by harmonising the legal deposit laws with Information and Communication Technology, for example, Namibia and South Africa.

Fines as a deterent measure

Jules (2003) notes that it is quite a challenge to rely on goodwill to ensure the comprehensiveness of deposit collections and this calls adequate mechanism to facilitate enforcement, for example, the use of deterrent fines to deter non-compliance would help to improve the situation especially in Zimbabwe were fines are so low and undeterent. The Printed Publications Act of Zimbabwe states that a publisher who fails to comply with the stipulations of Section( 3) will be deemed guilty of an offence and liable to a fine not exceeding five hundred Zimbabwean dollars (Z$500 ) or an imprisonment not exceeding six months or both. In South Africa the maximum penalty stands at R2500, while in the USA It goes as far as US$2, 500.Crews (1988:566) notes that if penalties are too low, they may not be significant enough to compel publishers to comply.

This fine is not deterrent enough because currently the value of the dollar has been eroded by inflation. However the use of fines should be viewed as a last resort because there is need to encourage mutually beneficial close cooperation between national institutions responsible for legal deposit, publishers and other information providers. Lariviere (2003) further states that there is need to educate stakeholders on how the legal deposit act operates and the benefits that accrue from compliance, for example, increased visibility, wider publicity of publications, effective bibliographic control and long term guarantee of availability of original copies in the event that disaster strikes.

Conclusions and recommndations

It has been observed that the Printed Publications Act has ceased to serve the function it was design for because currently there is no National Bibliography and the Act does not address contemporary issues in Information storage and retrieval. It has also been observed that institutions mandated to facilitate legal deposit are failing to adjust to the technological demands of the Information age and this is a disservice to the information profession and to the constitutional right to provide access to information. It is also interesting to note that National Archives of Zimbabwe has now entered into partnerships with educational institutions to help clear the backlog in bibliographic compilation and that for the period from 2010 0nwards electronic resources are part of the institution’s strategic plan

The ability to invest in modern technology for effective bibliographic control will also assist in inter-lending and document supply projects which are dependent upon technology. The advancements in technology have helped libraries and library users to easily identify resources from all over the globe. Bell (2003) hints on “memory losses” in national bibliographies of third world countries and calls for effective strategies to help improve the situation through world-wide cooperation with other institutions like UNESCO, the Africa Union, Association of Southern African Indexers and Bibliographers and IFLA section on bibliographic control.

1. There is also need to ensure support various stakeholders including publishers , libraries, writers , book sellers and government because currently there is lack of awareness of the importance of national bibliographic control of both print and electronic resources especially among public decision makers.

2. The National Archives through the support of other stakeholders should lobby government to convener an all stakeholders meeting to tackle the issue of legal deposit in an electronic age
3. There is need to revisit and revise the Printed Publications Act so that it encompasses both print and no-print resources and to also ensure that institutions mandated to enforce legal deposit are given adequate support materially, financially and economically.
4. The Zimbabwean institutions responsible for legal deposit should also consider the issues of capacity building because the Southern African region has been experiencing problems of expertise in the area of indexing and bibliographic compilations.
5. Investment in ICT should be prioritised as Zimbabwe moves forward into the digital world because most scientific publications are now available electronically and quite a significant amount of works by Zimbabweans is available online
6. Therefore there is need to restrategize on how best Zimbabwe can rely on its legal deposit laws to ensure effective and efficient bibliographic control of both print and electronic resources.
7. The National Archives should engage in inter-institutional collaboration with Colleges and Universities and other institutions involved in similar work for example , The National Library of South Africa.

An effective legal deposit system will help Zimbabwe contribute to the Universal Bibliographic Control and facilitate the availability and access to published material.Penzhorn (et.al) (2008:113) is of the view that the implementation and management of legal deposit in African countries is dependent upon the positive and full commitment of publishers and legal deposit institutions. Even though Penzhorn‘s studies were mainly focused on South Africa the findings can be generalized to the rest of the African continent. Zimbabwe stands to gain greatly by revisiting the legal deposit law so that revisions can be made and new law that will take into cognisance electronic and other non-print resources should be put in place. The country can afford a memory loss by ignoring the aspect of bibliographic control because the country is already in an information age were everything is dependent upon information and it is imperative that bibliographic control should be taken into consideration.

Bibliography

1. Jules, L., Guidelines for legal Deposit legislation. A revised, enlarged and updated edition), Paris: UNESCO, 2000.

2. Lor, P.J. and Letshela, P.Z.Implenting legal deposit of electronic publications in Africa: Progress Report from South Africa and Namibia. Paper presented at the 68th IFLA Council and General conference, 18-24 August, 2002.
3. Oltmans, E.Legal deposit of digital resources. IN: Liber Quarterly, 2003.
4. Davidson, D.Bibliographic Control. Clive Bingley: London: 1988.
5. Fournier, C.”Le depot legal” Vol.39.No.2.Documentation Bibliotheca, 1993
6. Bell, R.Legal Deposit.(Part 1) IN:Law Librarian.Vol.8.1.5
7. Wise, M.Aspects of African Librarianship: A collection of writings.London: Mansell Publishing, 1985.p304 -305.
8. Ng’an’ga, J.M. The concept of UAP and its relevance in Kenya.Paper presented at the KLA Annual seminar, Nairobi, 27th Feb-2nd March , 1990.
9. Made , S.H.Project in Resource sharing in Southern and Central Africa (Botswana, Malawi, Zambia and Zimbabwe)Feasibility study Part .1[Internet] http:www.unesdoc.unesco/org/images/0008/000851/0081541/eb.pdf.Accessed 7 October , 2009.
10. Printed Publications Act of Zimbabwe - The Ministry of Home Affairs –Zimbabwe Government .[Internet]Available from http://www.moha.gov.zw/index.php?link=naz_library.Accessed 6 August , 2009.
11. Genge, P.Historic Reference Collection, Bulawayo Public Library Zimbabwe.IN: From the IFLA round-table on Newspapers, May, 2008.No.8.
12. Haymes,M.and Rushby, L.Anglophone Africa seminar on Government Information and Official Publications[Internet]Availablehttp://www.innovation.ukzn.ac.za/innovation/Innovation/pdf.Accessed 24 July , 2009
13. Legal deposit of digital resources.IN: Liber Quarterly, 2003.
14. Fourie, I (et.al) Bibliographic Control in South Africa.[Internet} Available from http://ifla.queenslibrary.org/IV/ifla73/papers/075-Fourie_Burger-en.pdf.... 15 October, 2009.
15. Berger, P. L. and T. Luckmann (1966), The Social Construction of Reality: A Treatise in the Sociology of Knowledge.New York: Garden City.
16. Burns, T. and Flam, H(1987) The shaping of social organisation Social Rule System Theory With Applications. London: Sage Publications.
17. Kyobe, M.Factors Influencing SME compliance with Government Regulations on use of IT:The case of South Africa.IN: Journal of Global Information Management, Vol 17, No.2 .30-59April-June, 2009.
18. Smith, A.(1999:IV)Why digitise? Washington D.C. Council on library and Information resources.
19. Westra, P.E. & Lor, P.J. (1993). The national libraries of South Africa: Functions, problems and challenges. Proceedings of the International Conference on National Libraries –Towards the 21st Century, 20–24 April, Taipei. Pretoria: National Central Library.
20. Westra, P.E. & Zaaiman, R.B.( 1991). The two national libraries of South Africa. Alexan-dria, 3(2): 101 –120.
21. Fussler, H.H. and Kocher,K.(1977) Contemporary issues in bibliographic control.IN:Library Quarterly, Vol.47.no.3