A legal deposit requirement at the federal level was codified for the first time in West Germany in 1969. In 2006, the collection mandate of the German National Library was amended to include online publications. Since then, publishers have been required to submit one copy of their online publications to the German National Library free of charge, complete, in perfect condition, without time restrictions on their use, and in a suitable condition for permanent archiving by the Library. Online publications may also be made available for retrieval by the German National Library. Certain online publications that are of no public interest are excluded from the legal e-deposit regime. In 2012, the German National Library started archiving websites via web crawling.
A legal deposit requirement has been known in Germany since the seventeenth century. The requirement now exists at both the federal and state levels. For West Germany, it was first codified at the federal level in the Act on the German Library of 1969. The Act originally obligated publishers in Germany to provide one copy of each “printed work” (Druckwerk) to the German Library. Nonphysical publications were not yet covered by the law. Starting in the early 2000s, online publications were provided to the Library on a strictly voluntary basis by larger publishers and universities. In 2006, the German National Library Act came into force, which included nonphysical publications in the legal deposit program.
II. Current Legal Deposit Regime
The German National Library Act requires the German National Library to collect, archive, and catalog all “media works” (Medienwerke) published in Germany, all media works that are published abroad in the German language, all translations of German works published abroad, media works about Germany published abroad in other languages (Germanica), and printed works written or published between 1933 and 1945 by German-speaking emigrants. “Media works” are defined as “all representations in text, image, and sound that are distributed in material form or made accessible to the public in immaterial form.” This includes noncommercial publications. “Printed publications” (media works in material form) are defined as “all representations on paper, electronic data storage media, and other media.” “Online publications” (media works in immaterial form) are defined as “all representations in public networks.” The collection mandate of the Library is further defined in the Legal Deposit Regulation (Pflichtablieferungsverordnung) and the Collection Guidelines (Sammelrichtlinien). Publications that are of no public interest may be exempted from the legal deposit program. The legal deposit requirements support the mission of the German National Library to collect, archive, and catalog all such media works.
Depositors are generally required to deposit two copies of printed media works with the German National Library, with the exception of music scores that are only made available on loan, for which only one copy must be submitted. One copy also suffices for foreign printed works, translations of foreign-language works, and foreign-language printed works about Germany. For online publications, one copy must to be submitted. If media works are published both in print and online, two copies of the printed work and one copy of the digital work must be deposited. Deposits have to be made within one week from the date of distribution or from the day that the media work was made accessible to the public. If a publisher does not comply with this requirement, the German National Library is authorized to purchase a copy at the expense of the publisher.
III. Legal E-Deposit Procedures
A. General Description
As mentioned, depositors must provide one copy of online publications to the German National Library. “Online publications” include born-digital works and digitized copies of previously existing print publications (Digitalisate). Born-digital works are completely digitally designed and created, whereas digitized works are digitally reformatted versions of previously existing analog objects. When a digitized work is distributed through a network, it becomes an online publication subject to the legal e-deposit program. Only digitized versions not made available to the public are not covered by the legal e-deposit regime.
Submitted media works must be “complete and in perfect condition, without time restrictions on their use, . . . in a suitable condition for permanent archiving by the Library, . . . free of charge, and at the depositors’ expense.” Online publications may also be made available for retrieval by the German National Library. Sections 7 through 9 of the Legal Deposit Regulation explain the collection of online publications in more detail. They state that online publications are to be delivered in accordance with recognized technical designs and by standard market means. The depositor must provide any additional necessary elements, software, and tools to give the Library unrestricted use of the media work. The German National Library may limit the extent and frequency of the legal deposit requirement for online periodicals or may waive its right to collect certain online publications if the technical means for collection and archiving are not available, or if deposit requires considerable effort.
Certain online publications that are of no public interest are excluded from the legal deposit regime. These include, among others, private websites or online publications that only serve commercial purposes—for example, websites containing vacation photos, instant messaging services, social media services like Twitter, or a description of a company’s goods and services. Pre-publications, pure software or application tools, and radio and TV programs are also excluded.
B. Submitting and Accessing Online Publications
The German National Library offers two options for depositing online publications. Depositors can either send their online publications directly to the German National Library or make them available for retrieval by the Library in accordance with the instructions issued by the Library. In the first case, depositors deliver their publications via a web form made available on the website of the German National Library. In the latter case, the Library uses an automated delivery method (OAI PMH protocol, SFTP, or WebDAV). Certain publications—for example, audiobooks—may not be submitted via the web form.
The supported data formats are MARC21 and XMetaDissPlus, which are suitable for all kinds of online publications. ONIX 2.1 is used for e-books, sheet music, and audiobooks. JATS and CrossRef are the most suitable for e-journal contents.
The German National Library ensures that online publications are available on a long-term basis. Access to the archived copies is granted in accordance with the requirements of the depositor or the rights holder. At a minimum, however, simultaneous access in the German National Library’s reading rooms in Leipzig and Frankfurt is provided. The Library has installed computer terminals without internet connections to avoid possible abuses. In addition, there is no possibility to save the online publications on a storage medium or to process them further in any other way. Only printing is possible. No more than 10% of any media work may be reproduced, and then for noncommercial purposes only.
C. Web Harvesting
Although not explicitly stated in the Act, the German National Library’s collection mandate also covers collecting websites. Unlike other national libraries in Europe, the German National Library did not begin collecting online publications by web harvesting, but initially only focused on digital versions of existing physical publications. It started with monographs (e-books) and university publications (such as online doctoral dissertations), and then eventually expanded to other online publications such as e-papers and e-serials.
In 2010, the German National Library started making preparations for web harvesting with the first web crawl taking place in 2012. It only collects selected websites whose preservation is in the public interest in selective harvesting runs. Online publications in the public interest may include news websites, but also forums and blogs. However, as such websites are subject to constant change, the harvesting is repeated on a regular basis. The harvesting itself is automated, whereas the address of the website, collection depth, and frequency are determined on a case-by-case basis and entered manually. The German National Library uses a “web crawler” that searches and stores predefined addresses for that purpose.
Web crawling is assumed to fall under the Library’s collection mandate. However, until an amendment of copyright law entered into force on March 1, 2018, the periodic harvesting of all German internet domains, meaning all “.de” domains, was prohibited. The German Copyright Act originally only allowed the German National Library to save online publications on a first and one-time basis. Repeated retrieval of an online publication was an extension of existing archival contents and therefore a violation of German copyright law. In 2017, the legislature therefore proposed an amendment to the Copyright Act and the German National Library Act to grant the German National Library the right to automatically and repeatedly harvest works that fall under its collection mandate. The Library is now entitled to archive websites even without requesting permission from the respective rights holders.
By the end of 2016, the digital media holdings of the German National Library amounted to 3.45 million units. The holdings included
- 1,305,261 monographic online publications of which 649,954 were e-books (mainly commercial publications), 450,221 self-published titles (books on demand), 188,695 online dissertations and other university publications, 11,569 audio files (audiobooks), and 4,822 digital notated music works;
- 3,931 e-journals (current and completed titles) with 603,013 issues or articles;
- 1,304 e-papers (titles) including 1,280,758 individual issues; and
- 1,920 harvested websites.
In 2017, the Library imported 2,691 online publications per day, which includes e-books and e-journals as well as other e-journal contents like individual articles or issues. As of 2018, the German National Library’s storage capacity for online publications totals 12.4 terabytes (TB), excluding storage for harvested websites.
Prepared by Jenny Gesley
Foreign Law Specialist
 Cornelia Diebel, Netzpublikationen – Sammlung, Archivierung und Bereitstellung in der Deutschen Nationalbibliothek [Electronic Publications – Collection, Archiving, and Accessibility in the German National Library], 27 Dialog mit Bibliotheken 24, 24 (2015), https://d-nb.info/1118655729/34, archived at http://perma.cc/C38G-D7V8.
 Gesetz über die Deutsche Bibliothek [Act on the German Library] [German Library Act 1969], Mar. 31, 1969, Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 265, http://www.bgbl.de/xaver/bgbl/start.xav?startbk= Bundesanzeiger_BGBl&jumpTo=bgbl169s0265.pdf (no longer in force), archived at http://perma.cc/9FFG-G983. A similar regime existed under the Laws of East Germany (German Democratic Republic, GDR)) from 1960 until 1990.See Anordnung über die Ablieferung von Pflichtexemplaren, July 4, 1960, Gesetzblatt der Deutschen Demokratischen Republik [GBl. d. DDR] [Legal Gazette of the GDR] I at 423.
 German Library Act 1969, § 18, para. 1, § 19.
 Diebel, supra note 1, at 24.
 Gesetz über die Deutsche Nationalbibliothek [DNBG] [Act on the German National Library] [German National Library Act], June 22, 2006, BGBl. I at 1338, as amended, http://www.gesetze-im-internet.de/dnbg/DNBG.pdf, archived at http://perma.cc/SP4M-T5GR, unofficial English translation available at http://www.dnb.de/Shared Docs/Downloads/EN/DNB/wir/dnbg.pdf?__blob=publicationFile, archived at http://perma.cc/EDG6-LFXH.
 German National Library Act, § 2, paras. 1, 2; Collection Mandate of the German National Library, German National Library, http://www.dnb.de/EN/Wir/Sammelauftrag/sammelauftrag_node.html (last updated Nov. 15, 2017), archived at http://perma.cc/SQD7-NT4K.
 Id. § 3, para. 1.
 Deutscher Bundestag: Drucksachen und Protokolle [BT-Drs.] 16/322, at 13, http://dipbt.bundestag.de/ doc/btd/16/003/1600322.pdf, archived at http://perma.cc/A85K-UEMZ.
 Id. § 3, para. 3.
 Verordnung über die Pflichtablieferung von Medienwerken an die Deutsche Nationalbibliothek [Pflichtablieferungsverordnung] [PflAV] [Legal Deposit Regulation], Oct. 17, 2008, BGBl. I at 2013, as amended, http://www.gesetze-im-internet.de/pflav/PflAV.pdf, archived at http://perma.cc/HQL2-22GB; Deutsche Nationalbibliothek [DNB] [German National Library], Sammelrichtlinien [Collection Guidelines], May 1, 2014, https://d-nb.info/1051940788/34, archived at http://perma.cc/ZNK3-XKNU.
 Legal Deposit Regulation, § 1, para. 1, sentence 2.
 German National Library Act, § 14, para. 1, § 15.
 Id. § 14, para. 2, § 15.
 Id. § 14, para. 3, § 15.
 Id. § 14, para. 3; Collection Guidelines, supra note 10, para. 220.127.116.11.
 German National Library Act,§ 14, para. 4.
 German National Library, Definition des Begriffs „Digitale Publikation“ und aktuelle Verwendung der Terminologie in der Deutschen Nationalbibliothek [Definition of the Legal Term “Digital Publication” and Current Use of the Terminology in the German National Library] 4 (2017), http://www.dnb.de/SharedDocs/Downloads/ DE/DNB/wir/definitionDigitalePublikation.pdf?__blob=publicationFile, archived at http://perma.cc/RQ7Z-LAW6.
 Collection Guidelines, supra note 10, para. 18.104.22.168.
 German National Library Act § 16.
 Legal Deposit Regulation § 7.
 Id. § 8, paras. 2, 3.
 Id. § 9.
 Id.; Collection Guidelines, supra note 10, para. 22.214.171.124.; Online Publications, German National Library, http://www.dnb.de/EN/Netzpublikationen/netzpublikationen_node.html(last updated Oct. 9, 2017), archived at http://perma.cc/BWV7-ESW8.
 Legal Deposit Regulation, § 9, nos. 2–9.
 Submitting Online Publications, German National Library, http://www.dnb.de/EN/Netzpublikationen/ Ablieferung/ablieferung_node.html (last visited Apr. 3, 2018).
 German National Library Act § 16, in conjunction with Legal Deposit Regulation § 7.
 Submission Procedures, German National Library, http://www.dnb.de/EN/Netzpublikationen/Ablieferung/ Ablieferungsverfahren/ablieferungsverfahren_node.html (last updated Nov. 23, 2016), archived at http://perma.cc/2EKE-XXNF.
 Submission Procedures, supra note 30.
 Diebel, supra note 1, at 26–28.
 Urheberrechtsgesetz [UrhG] [Copyright Act], Sept. 9, 1965, BGBl. I at 1273, as amended, § 60e, para. 4, http://www.gesetze-im-internet.de/urhg/UrhG.pdf, archived at http://perma.cc/CZ4F-SM8G, unofficial English translation available at http://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.pdf (English version updated through Sept. 9, 2017), archived at http://perma.cc/2ZJ9-VGQN.
 Collection Guidelines,supra note 10, para. 126.96.36.199.2; BT-Drs. 16/322, supra note 8, at 12–13.
 German National Library, Collection Mandate of the German National Library 3 (2017), http://www.dnb.de/SharedDocs/Downloads/EN/DNB/wir/zumsSammelauftrag.pdf?__blob=publicationFile, archived at http://perma.cc/MUC9-DB54.
 Id. at 1–3.
 Id.at 3.
 Collection Guidelines, supra note 10, para. 188.8.131.52.2.
 Copyright Act as in force until Feb. 28, 2018, § 53. For an overview of the problems under German copyright law see Eric W. Steinhauer, 10 Jahre Pflichtablieferung von Netzpublikationen – Eine Baustelle wird besichtigt [10 Years of Legal E-Deposit – A Construction Site Visited], 28 Dialog mit Bibliotheken 31, 32 et seq. (2016), https://d-nb.info/1115818023/34, archived at http://perma.cc/846Q-3QUC.
 BT-Drs.18/12329, p. 50, http://dipbt.bundestag.de/dip21/btd/18/123/1812329.pdf, archived at http://perma.cc/Q387-DVNS; Gesetz zur Angleichung des Urheberrechts an die aktuellen Erfordernisse der Wissensgesellschaft [Urheberrechts-Wissensgesellschafts-Gesetz] [UrhWissG] [Act to Align Copyright Law with Current Requirements of the Knowledge Society] [Copyright-Knowledge Society Act], Sept. 1, 2017, BGBl. I at 3346, http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl117s3346.pdf, archived at http://perma.cc/44EU-SQAM.
 German National Library Act, § 16a, para. 1 (“automatically and systematically”); Copyright Act, § 60e, para. 1. Please note that the English translation of the German Library Act does not contain the new section 16a.
 DNB, Collection Mandate of the German National Library 2–3 (2017), http://www.dnb.de/Shared Docs/Downloads/EN/DNB/wir/zumsSammelauftrag.pdf?__blob=publicationFile, archived at http://perma.cc/4WYR-VD6S.
 Email from Cornelia Diebel, German National Library, to Johannes Jaeger, Foreign Law Intern, Law Library of Congress (Mar. 28, 2018) (on file with author).
Last Updated: 08/06/2018