Legal Deposit Libraries Bill

House of Commons, 4 July 2003.

New Clause 1 — Exemption from Liability: Deposit of Publications etc.

Chris Mole (Labour, Ipswich)

I beg to move, That the clause be read a Second time.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to discuss the following:

New clause 2—Exemption from liability: activities in relation to publications—

'(1) A deposit library, or a person acting on its behalf, is not liable in damages, or subject to any criminal liability, for defamation arising out of the doing by a relevant person of an activity listed in section 7(1A) in relation to a copy of a work delivered under section 1.

(2) Subsection (1) does not apply to the liability of a deposit library where—

(a) it knows, or in the case of liability in damages it knows of facts or circumstances from which it ought to know, that the copy contains a defamatory statement, and

(b) it has had a reasonable opportunity since obtaining that knowledge to prevent the doing of the activity in relation to the copy.

(3) Where, pursuant to section 1, a person (in this section, "the publisher") has delivered a copy of a work to an address specified by a deposit library, the publisher is not liable in damages, or subject to any criminal liability, for defamation arising out of the doing by a relevant person of an activity listed in section 7(1A) in relation to the copy.

(4) Subsection (3) does not apply where—

(a) the publisher knows, or in the case of liability in damages the publisher knows of facts or circumstances from which it ought to know, that the copy contains a defamatory statement, and

(b) it has had a reasonable opportunity since obtaining that knowledge to inform the library of the matter, facts or circumstances known to it and has not done so.

(5) Where a work is published on the internet, subsection (6) applies to a copy of the work if—

(a) the work is of a description prescribed by regulations under this subsection,

(b) the publication of the work on the internet, or a person publishing it there, is connected with the United Kingdom in a manner so prescribed, and

(c) the copy was made by a deposit library or person acting on its behalf copying the work from the internet in accordance with any conditions so prescribed.

(6) Where this subsection applies to a copy of a work—

(a) no person other than the library is liable in damages, or subject to any criminal liability, for defamation arising out of the doing by a relevant person of an activity listed in section 7(1A) in relation to the copy, and

(b) subsections (1) and (2) apply in relation to the doing of an activity in relation to the copy as they apply in relation to the doing of the activity in relation to a copy of a work delivered under section 1.

(7) In this section—

(a) "relevant person" has the same meaning as in section 7;

(b) references to activities listed in section 7(1A) are references to those activities whether or not done in relation to relevant material (as defined in section 7);

(c) references to a deposit library include references to the Faculty of Advocates.

(8) The Secretary of State may by regulations provide for this section, as it applies in relation to liability in damages and criminal liability for defamation, to apply in relation to liability (including criminal liability) of any description prescribed in the regulations, subject to such modifications as may be prescribed.

(9) Where this section applies to the doing of an activity in relation to a copy of a work it also applies to the doing of the activity in relation to a copy (at any remove) of that copy.

(10) Nothing in this section imposes liability on any person.'.

New clause 3—Legal liability—

'(1) A deposit library or person acting on its behalf is not liable for damages or for any other pecuniary remedy or for any criminal sanction for carrying out any of the activities mentioned in section 7 (1A) in relation to a copy of a work delivered under section 1.

(2) Subsection (1) only applies to the liability of a deposit library where it—

(a) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the library that the activity or information was unlawful; and

(b) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

(3) A person (in this section, "the publisher") who, pursuant to section 1, has delivered a copy of a work to a deposit library is not liable for damages or for any other pecuniary remedy or for any criminal sanction arising out of any of the activities mentioned in section 7(1A) relating to that copy.

(4) Where a work of a description prescribed by regulations under this subsection has been copied, in accordance with such conditions as may be prescribed, from the internet by a deposit library or person acting on its behalf—

(a) no person other than the library is as a result of the accessing of that copy, and

(b) subsections (1) and (2) apply in relation to the accessing of that copy as they apply in relation to the accessing of a copy of a work delivered under section 1.

(6) Where this section applies to the accessing of a copy of a work it also applies to the accessing of a copy (at any remove) of that copy.

(7) Nothing in this section imposes liability on any person.

(8) In the case of legal publications, this section applies as if the Faculty of Advocates were, and the authority controlling the National Library of Scotland were not, a deposit library.'

Amendment No. 20, in page 7, line 5, clause 10, at end insert—

'"database right" has the meaning given by regulation 13(1) of the Copyright and Rights in Databases Regulations 1997 (S.I. 1997/3032);'.

Chris Mole (Labour, Ipswich)

At the outset, I want to make it clear that I encourage the House to support new clauses 1 and 2 and amendment No. 20, to which I shall speak, but to resist new clause 3.

I welcome the opportunity to return to improving this important measure. The new clause addresses an issue that was outstanding after the Committee proceedings: the concern that publishers may, in certain circumstances, be in breach of contract with some third party for depositing material with the legal deposit libraries.

The new clause provides that a publisher shall not be in breach of contract nor infringement of copyright or publication right by depositing a work in accordance with clause 1, or by depositing any computer programme in accordance with clause 6 (2)(b). It gives protection for contracts that are governed by the laws of England, although it does not offer protection for other contracts. However, I have been advised that it is unlikely that foreign courts will act when that is a condition of compliance with laws of another sovereign state. The new clause thus offers some international protection.

Publishers in some sectors want to be further protected by a clause that extends the provision to international contracts. Indeed, the hon. Member for North-East Cambridgeshire (Mr. Moss) has tabled an amendment that would address that issue. I have been advised that that may provide a loophole and allow publishers to avoid deposit. I retain concerns that if such a clause is incorporated there is a risk that there would be scope for contracts to be structured deliberately to avoid the requirement to deposit. I am sure that would not be the intention of committed publishers, but I shall revisit that point when we discuss amendment No. 21. It remains the case that those matters cause concern, so there will be an opportunity to raise detail for consideration when any regulations are proposed, consulted on and assessed.

As promised in the Standing Committee, new clause 2 has been drafted to address the liability for defamation incurred through the accessing of deposited material. Under subsections (1) and (2), it provides that libraries will not be liable for damages for defamation arising from accessing the material in the library unless the library knows, or ought to have known, that the material contained a defamatory statement and did not remove the material, or disable access to it, within a reasonable time. Under subsections (3) and (4), the new clause provides that a publisher will not be liable for damages for defamation arising from accessing the material in the library unless the publisher knows, or ought to have known, that the material was defamatory and did not inform the library of that.

I am pleased that we can introduce the third leg of the Bill. Until now, discussions have covered print and offline electronic publications. However, an important element of future proofing is the ability to harvest online content, for which specific powers to deposit are obviously not required. Protection from defamation is introduced under subsection (5), while copyright breach and other issues are reflected in amendments Nos. 7, 9 and 14.

Subsection (5) provides that where material of a prescribed description has been downloaded from the internet, in accordance with any prescribed conditions, only the library can be liable for damages for defamation and it will be liable only in the same circumstances as those outlined in subsections (1) and (2). Publishers cannot be liable for defamation arising as a result of access to material in libraries when the material has been harvested. The provision applies to any copies that are made of the original work deposited: for example, for preservation purposes.

The new clause does not include a provision for liability for contempt, as the Department for Constitutional Affairs has advised that neither libraries nor publishers would be liable for contempt as a result of accessing the material in the libraries.

I understand that, to achieve consistency, some publishers still want to cover all liabilities and activities. I have been advised that, other than defamation, no potential liabilities would arise from using the material in libraries. However, subsection (1) of new clause 2 enables the defamation issue to be addressed and, under subsection (8), the Secretary of State is enabled to pick up other liabilities where a case has been demonstrated that that is necessary. That seems a much simpler and more effective way of dealing with the concerns that were raised.

New clause 3, tabled by the hon. Member for North-East Cambridgeshire, deals with legal liability. It will deliver no benefits beyond those already provided for under new clause 2. That is because other issues arising, unlike defamation, cannot lead to the conclusion that simply accessing material constitutes re-publication. In any event, as I have just described, new clause 2(8) will create the enabling power for the Secretary of State to address any such issue if a case is made in the future. Amendment No. 20 is technical and will insert a definition of database rights in clause 10, entitled "Interpretation".

Malcolm Moss (Conservative, North East Cambridgeshire)

I wish to speak to new clauses 1 and 2, then new clause 3, which is on the amendment paper in my name.

New clause 1, tabled by the hon. Member for Ipswich (Mr. Mole), seems only to give protection for contracts governed by the laws of this country. It does not seem to offer protection for contracts with overseas content suppliers who have made those contracts in other jurisdictions under the laws of other countries. Much of United Kingdom publishing is international in content, and a great many UK publishers incorporate in their online services information sourced from information suppliers residing outside the UK—in the United States, for example—and those contracts are concluded under the appropriate laws of those foreign countries. New clause 1 will not, in our opinion, remove UK publishers' legal exposure for making deposits in breach of contractual or confidentiality obligations with third party, overseas content providers. In an attempt to clarify that difficulty, we have tabled amendment No. 21, which has been grouped with another set of amendments, but which goes to the heart of what we propose in new clause 3.

The hon. Member for Ipswich said that he had been advised that UK legislation could not go further than offering the protection from breach of contract obligations that is proposed in the new clause. He also claimed that it is not possible to offer protection in respect of contracts governed by foreign laws, but in our opinion that need not be so. It is certainly possible for the Government to provide that the deposit obligations will not override the provisions in contracts with overseas suppliers. By not addressing that exposure, the hon. Gentleman, with Government support, risks exposing many UK-based publishers to breach of contract and confidentiality obligations with foreign information suppliers. That is a new and unacceptable exposure.

The hon. Gentleman also said that he had been advised that overseas courts would not award more than nominal damages—I think that that was the phrase he used—in respect of a breach of contract if the breach were due to the publisher complying with an obligation under the law of another sovereign state. Again, in our view, the risk of damages from breach of contract will often be less important than enabling overseas suppliers to terminate their contracts with UK publishers, thus possibly depriving them of important raw material for their products. Furthermore, it would be a burden for UK publishers to be required to negotiate special terms with all their overseas suppliers, assuming—of course, this is by no means certain—that overseas suppliers would be willing to agree to contract changes.

I shall give the House some examples of such contracts. In particular, Cambridge University Press has supplied examples of software licences governed by non-English law, where it is unrealistic to suppose that the licensee could insist on a change to the wording such that the agreement would be governed by English law. First, Cambridge University Press licenses text software for use in a CD-ROM and networked version of a dictionary. That agreement is governed by the laws of Denmark. Secondly, the press also licenses Aladdin systems for, I am told, the Stuffit—an inappropriate word, I am sure—installer, which is a common decompression programme for use in CD-ROM products. That licence is governed by the laws of the state of California. If such licences were contravened by legal deposit, the protection offered by these proposals would be of no comfort. In our opinion, it would be essential for the duty to deposit to be waived in such circumstances.

Again, the hon. Gentleman took the view in proposing his new clauses that they have taken on board some of the views and opinions of the publishing community, whereby contracts with third-country suppliers would create a significant loophole. Having looked at what is proposed, the Department's line is now that, if the Government went along with these proposals, a significant loophole would be created through which, as the hon. Gentleman said, publishers could avoid the requirement to deposit. He did not, however, attempt to explain this morning why that would create a loophole. The publishers do not believe that it would create one, and our amendment relates only to contracts with foreign-based suppliers. Apparently, a fear exists that UK publishers might decide to relocate overseas as a result. Again, we do not for one moment find that credible. Our amendment, recommended to us by the online sector, is an entirely reasonable and proportionate means of addressing this exposure by removing the offending parts of the clauses.

As far as new clause 2 is concerned, although the exemption from liability in defamation represents a welcome addition, and we thank the hon. Member for Ipswich for listening to the submissions made to him in that respect, other categories of liability need to be addressed, as is the case in the Electronic Commerce (EC) Directive Regulations 2002. The hon. Member for Ipswich went on to say that under subsection (8) of his proposed new clause the power may be used in future to confer protection from liability in respect of other matters by regulations, should that prove necessary. There is a feeling, however, that although that power exists, it may not be used, and all that remains, of course, is the proposal on defamation. Other matters of concern to the publishing industry, in terms of the additional offences that might be faced, are the following: negligent mis-statement, contempt of court, privacy, racism, obscenity and misleading advertising. All those areas of concern have been expressed on many occasions, and have not so far met with the hon. Gentleman's approval or support from the Minister or the Department.

The hon. Member for Ipswich claimed that he has moved in the direction of the publishers by limiting liability for works published on the internet. That is in subsection (5) of new clause 2, which states:

"Where a work is published on the internet, subsection (6) applies to a copy of the work if . . . the work is of a description prescribed by regulations under this subsection",

and

"the publication of the work on the internet . . . is connected with the United Kingdom in a manner so prescribed".

With that, he makes the point that he and his advisers have gone some way to meeting the fears of the publishing industry. If we look carefully at subsection (5)(a), (b) and (c), however, no guarantee is given of any movement in that direction. Proposals will come forward in the future in regulations, but as yet, many of those have not been discussed, and those concerned have no real idea as to how they will evolve, devolve and affect them across the board.

We also believe that the notice and takedown provisions in the Bill should be consistent with the e-commerce regulations that already exist, to ensure that publishers and libraries operate under a consistent legal framework. It would be unacceptably confusing and entirely unnecessary to have a different notice and takedown regime for legal deposit under all other circumstances. For the sake of consistency, all liabilities should be addressed in the Bill as closely as possible to those provisions set out in the e-commerce regulations. Through new clause 3, we begin to address some of those issues. Although I shall return later to amendment No. 21, it is coupled with that in terms of tightening up what are considered to be problems and difficulties with the way in which the Bill is currently drafted.

Estelle Morris (Labour, Birmingham, Yardley)

Without going over the material covered by my hon. Friend the Member for Ipswich (Mr. Mole), I shall respond to one or two of the points raised by the hon. Member for North-East Cambridgeshire (Mr. Moss). I support new clauses 1 and 2—but not new clause 3—and amendment No. 20, which is consequential on the new clauses.

I think that it is generally agreed that new clause 1 provides the publishers and libraries with protection in the deposit of materials. New clause 2 provides that the deposit libraries will not be liable for any defamation arising out of the use of the material in the libraries unless the library is aware that the material contains a defamatory statement and has had a reasonable opportunity to prevent that use. Similarly, new clause 2 offers publishers the same recognition. Hon. Members must understand that the Bill is enabling legislation that is designed to stand the test of time. Much of how it is enacted will be subject to further consultation and debate with publishers and others. It makes provisions in relation to future media, and new clause 2 gives us that additional flexibility.

I want to deal with the point that the hon. Member for North-East Cambridgeshire raised about contracts with entities abroad not offering protection other than under English law. I would not for a minute wish to suggest that members of the publishing community would enter into a contract with someone overseas to give them protection from depositing in the UK, but the hon. Gentleman might accept that that is a loophole that could be exploited by those who do not act in the way that he and I would hope. In law, it is a potential loophole. Therefore, Ministers and my hon. Friend the Member for Ipswich cannot offer publishers protection from overseas law—only from English law. However, we shall consult publishers and the industry on a case-by-case basis.

The print media currently deposit books in libraries. They do not face this problem, and do not have protection from international law; they are protected only from English law. Although I understand the hon. Gentleman's point—none of us wants to put publishers into a position in which they might be subject to action from overseas law—I ask him to accept that we do not want a loophole to be exploited by those who act in a way that we would not consider to be honourable.

Malcolm Moss (Conservative, North East Cambridgeshire)

I made two points. The first is that there might be a problem with the law of the originating country. We accept that there may be a nominal position with regard to the breaking of that law. The more important point—I hope that the Minister accepts this—is that overseas suppliers of information may think that, given the circumstances under the Bill, they may not wish to continue to supply material. That would have a serious economic impact on the businesses involved.

Estelle Morris (Labour, Birmingham, Yardley)

I understand that point. To some extent, the hon. Gentleman responds in the way that I did. In circumstances that we might not expect, there is a potential for overseas people to view a contract in that light. I accept that that is possible. However, I repeat two points. The first is that that has not caused a problem with the printed books that are deposited in libraries, so it should be possible to find a way around that problem. Secondly, given that this is enabling legislation that will deal with the issues on a case-by-case basis, the hon. Gentleman's point is one that we shall want to consider.

The fact that there is not protection from non-UK law is something that publishers will have to take into account when entering into contracts. The purpose of the Bill in ensuring that we have national archives and libraries that keep copies of published material is important. Many amendments were made to the Bill in Committee and dealt with the proper concerns that were raised. We want to give ourselves a framework in the Bill that will enable us to continue discussions with the publishers about how we can protect them while preserving our national heritage and libraries.

I add one more point in response to the wish repeatedly expressed by the hon. Member for North-East Cambridgeshire for the use of wording taken from electronic commerce regulations. I am advised that it is used in a different context and that, legally, it is possible to refer back to the original EU directive for clarification. The Bill would clearly not enable that to happen, which is why the wording, which we have been advised is appropriate, does not always relate back to the e-commerce regulations.

It was entirely proper for the hon. Gentleman to table the new clause and express concerns on behalf of publishers. We are trying to offer publishers the protection that they want while ensuring that our libraries may access the copies that they need. I hope that he accepts that even if he has remaining concerns, they will be properly dealt with by the advisory committee which I reaffirm that the Government wish to set up, which will consider matters case by case. We will not initially require all forms of online and offline publications to be lodged. We will start with offline publications and move to online publications only when we have reached proper agreement following consultation with publishers and others. In the light of that, I hope that he will support new clauses 1 and 2, but not press new clause 3 to a Division.

Chris Mole (Labour, Ipswich)

I welcome the contributions made by hon. Members. We will return to the question of international protection when we consider amendment No. 21. I welcome the comments made by my right hon. Friend the Minister to provide clarification and cross-referencing, and I hope that they have persuaded the hon. Member for North-East Cambridgeshire (Mr. Moss) not to press new clause 3 to a Division.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 2 — Exemption from Liability: Activities in Relation to Publications

New Clause 4 — Limitations on Application

Malcolm Moss (Conservative, North East Cambridgeshire)

I beg to move, That the clause be read a Second time.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to discuss the following amendments: No. 24, in page 4, line 7, clause 6, at end insert—

'(5) Regulations under this section may not be made so as to apply to works published on line which do not contribute to the national intellectual, cultural or scientific record.'.

No. 9, in page 5, line 3, clause 8, at beginning insert—

'( ) Copyright is not infringed by the copying of a work from the internet by a deposit library or person acting on its behalf if—

(a) the work is of a description prescribed by regulations under section (Exemption from liability: activities in relation to publications)(5) of the 2003 Act,

(b) its publication on the internet, or a person publishing it there, is connected with the United Kingdom in a manner so prescribed, and

(c) the copying is done in accordance with any conditions so prescribed.'.

No. 10, in page 5, line 5, clause 8, leave out from first 'the' to end of line 6 and insert '2003 Act'.

No. 12, in page 5, line 24, clause 8, at end insert—

'( ) "the 2003 Act" means the Legal Deposit Libraries Act 2003;'.

No. 13, in page 5, line 25, clause 8, at beginning insert '"deposit library",'.

No. 14, in page 5, line 32, clause 8, at beginning insert—

'( ) Database right in a database is not infringed by the copying of a work from the internet by a deposit library or person acting on its behalf if—

(a) the work is of a description prescribed by regulations under section (Exemption from liability: activities in relation to publications)(5) of the 2003 Act,

(b) its publication on the internet, or a person publishing it there, is connected with the United Kingdom in a manner so prescribed, and

(c) the copying is done in accordance with any conditions so prescribed.'.

No. 15, in page 5, line 34, clause 8, leave out from 'the' to end of line 35 and insert '2003 Act'.

No. 16, in page 5, line 41, clause 8, leave out ', "relevant material" has' and insert '—

( ) "the 2003 Act" means the Legal Deposit Libraries Act 2003;

( ) "deposit library" and "relevant material" have'.

Malcolm Moss (Conservative, North East Cambridgeshire)

New clause 4 would define more clearly the origin of a specific work or piece of information. I am informed that discussions have taken place among the Department for Culture, Media and Sport and representatives of the publishing industry and that there was a view that agreement had been reached that the hon. Member for Ipswich (Mr. Mole) could draft an amendment to address several of the points raised, especially those expressed by the Digital Content Forum. Unfortunately, that did not happen, and the word from the Department was that there would be long-term flexibility to deal with the issue in response to evolving non-print media.

Of course, the effect of the decision is that the Bill has no territorial certainty. The problem is that inadequate consultation has taken place, and perhaps the Minister and the promoter do not really understand the implications of extending the deposit regime to include online publications, because it will raise many difficult problems. The fact that the Bill does not address and clarify the territorial scope of online services is a fundamental fault, which new clause 4 seeks to rectify. It aims to ensure that publishers know in future exactly where they stand in relation to the concept of territoriality.

Christopher Chope (Conservative, Christchurch)

I should like to speak to my amendment No. 24, which deals with online publications and would introduce a restriction on the requirement to submit online publications, which would not apply unless they contributed to the national intellectual, cultural or scientific record.

The Bill is extremely woolly on the subject of online publications—[Interruption.] I did not hear what the hon. Member for Ceredigion (Mr. Thomas) said.

Eric Forth (Conservative, Bromley and Chislehurst)

He was being rude.

Christopher Chope (Conservative, Christchurch)

That is a matter for the hon. Member for Ceredigion, who should exercise his judgment. I am surprised that he is not concerned about the problem caused by the proliferation of online material on the internet and the prima facie requirement in the Bill that the contents of every single website should be submitted in electronic form to the national deposit library so that they can become part of the national collection.

Eric Forth (Conservative, Bromley and Chislehurst)

I hesitate to intervene on my hon. Friend, because he knows that my knowledge of, and interest in, the internet is not merely zero but negative. However, I wish to make a modest contribution if I catch Mr. Deputy Speaker's eye, so I would be grateful if my hon. Friend could provide me with some context. Is a website a territorial thing, and does it have a territorial existence or being? That question is germane to the issues raised by this group of amendments, and an explanation would be of enormous assistance in helping me to formulate my thoughts.

Christopher Chope (Conservative, Christchurch)

Unfortunately, my right hon. Friend has chosen the wrong person to get a good answer to that question. As I understand it, the contents of a website can be accessed on any suitable computer in any global jurisdiction. Indeed, I even believe that people travelling intergalactically can get access to those websites.

Eric Forth (Conservative, Bromley and Chislehurst)

Does it follow that the material on a website cannot have a meaningful territoriality or territorial existence?

Christopher Chope (Conservative, Christchurch)

I am not sure about that, as I understand that there is a series of offences that can be committed by people who download content from a website. From my superficial knowledge, gleaned from looking at popular newspapers, it seems that people are sometimes deemed to be downloading material from a website even when they are just visiting it, rather as one may visit a library to look at the books rather than withdraw anything. However, I must admit to my right hon. Friend that my knowledge of the difference between a website that falls within a domestic jurisdiction and one that falls within an international jurisdiction is limited. However, like me, he will be familiar with the fact that some websites have a "co.uk" designation—I do not know whether that means that they are exclusive to the UK. I am also aware that some websites are designated ".eu", and do not know whether we cannot get access to them in this country until we join the single currency. There are also dotcom websites, which I understood to be an international grouping, access to which is probably more expensive than to the co.uk sites. But that takes us a bit further than I had intended with the amendment.

12.15 pm

In the past, the very process of publishing and its costs were such as to restrict the material that was published. In order for books to be published, they had to be considered by a publishers' scrutiny committee, and we know that many tens of thousands of people have sought in vain to have their work published. Now, as I understand it, everyone whose work is rejected for publication in written form can put it on their personal website. The Bill would require every piece of worthless material on a website—in other words, any book not considered by a publisher to be worth publishing—to be submitted to the national library in duplicate. It has even been suggested that six copies may be required.

We have heard much recently about the proliferation of e-mails and something called spam, although I am not quite sure what that is. But those problems are as nothing compared with the problems that will be created if there is a legal obligation under the Bill for every item that is published on the internet by someone resident in this country—to take the point made by my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth)—to be submitted to the national library.

Apart from anything else, that will impose an intolerable burden upon the library in cataloguing, storing and accessing such material. It completely cuts across the idea of having a national library collection, which is a collection of works that have been published because a publisher thought that they were worth publishing. There may in the past have been a few works that were published by rich people at their own expense, but such works have been relatively few in number. Now, anyone can set up their own website. They could put a collection of their primary school essays on the website. Some schools encourage their pupils to put their material on to websites so that it can be accessed by a wider audience. Are we really saying that the equivalent of schoolchildren's exercise books, albeit in online form, should have to be submitted to the national library collection?

My amendment seeks to ensure that in so far as there is such a requirement it does not extend to works that do not enjoy significance and contribute to the national intellectual, cultural or scientific record. That concept is clearly reflected in the regulatory impact assessment, which runs to some 17 pages with an appendix, paragraph 2(1) of which states:

"the objective of the proposed measure is to extend the provisions of section 15 of the Copyright Act 1911 to cover non-print material to ensure that all publications of significance are collected, regardless of the medium in which they are published, and are preserved as part of the national published archive so as to remain available to future generations of users."

You will have noted, Mr. Deputy Speaker, the reference there to "publications of significance". At present, that is not reflected in the Bill, and certainly not in relation to online publications. That is why I think that the Bill would be much improved if amendment No. 24 were incorporated in it.

Eric Forth (Conservative, Bromley and Chislehurst)

My hon. Friend would help me if he were to expand his remarks now so that I could set my remarks in a better context. I am curious to know whether my hon. Friend thinks that we have a mechanism that is robust enough to make a judgment about what he is calling the national intellectual, cultural or scientific record. That definition seems to have the potential to involve subjective judgments. I think that that necessarily must be so. Does my hon. Friend think that the provision in amendment No. 24 will be able effectively to be implemented? The wording, which sounds rather grand, helpful and positive, may in the end be of little or no meaning when it comes to implementation.

Christopher Chope (Conservative, Christchurch)

I share my right hon. Friend's concern that my amendment might introduce what is in the nature of a subjective test. However, there will have to be some subjectivity. If not, we shall find that every schoolchild's essay and every piece of any other material, however ghastly it is in terms of content or grammar, will have to be deposited in the national archive collection, if it has appeared online on a website.

On Second Reading, the promoter said:

"The purpose of legal deposit is to ensure that the nation's published output, and thereby its intellectual record and future published heritage, is collected systematically and as comprehensively as possible. We do this to make material available to current researchers in the libraries of the legal deposit system, and to preserve it for the use of future generations of researchers. Both purposes are important. The system dates back several hundred years and has been vital in preserving and making available the published record of previous generations for the researchers of today and of the future."

However, that has not included the odd jottings of previous generations of schoolchildren, or their scribblings. Partly in answer to the question raised by my right hon. Friend, the promoter said:

"What might we be losing? The material at risk includes: major directories, such as the Europe Information directory, which is available on DVD; news sources, including the web-published results of public opinion polls from companies such as MORI; indexes to help researchers to locate material such as the Legal Journals Index; the Cochrane Library, which is arguably the best single source of reliable evidence on the effects of health care and which is available only on CD-ROM and the web; a wide range of important local government and national Government documents, such as the Home Office series of 'online only' research reports; and an increasing number of e-journals, such as Sociological Research Online, which is available only on the web."—[Official Report, 14 March 2003; Vol. 401, c. 577.]

When the promoter was addressing the issue on Second Reading, in a sense he was inserting his own subjective judgment on what he regarded as documents or material that would not be available for future generations because it had not been deposited in the library. However, even his examples are minor compared with the vast quantity of material that would be envisaged by the Bill as it stands, as extended to online publication.

I refer again to the regulatory impact assessment, which states under the heading "Risk Assessment" on page 3, sub-paragraph (iv):

"If the provisions of legal deposit are not extended to non-print publications there is a considerable risk that important material contributing to the national intellectual, cultural and scientific record will not be secured and preserved for the benefit of future generations."

The wording of my amendment is taken directly from the regulatory impact assessment. The assessment goes on:

"It is generally accepted that publishers do not have the expertise, or infrastructure, to preserve their publications or provide access beyond the timespan during which they are of commercial value to them."

When one looks at the regulatory impact assessment, particularly at how thin it is in respect of online publications, one realises that there must be some safeguards in the Bill. My right hon. Friend the Member for Bromley and Chislehurst may be of the opinion that it should not cover online publications at all, but accepting that there may be a case for certain online publications, my amendment seeks to restrict that category significantly.

My right hon. Friend will probably ask me what the regulatory impact assessment says about the overall costs of dealing with UK websites.

Eric Forth (Conservative, Bromley and Chislehurst)

Good guess.

Christopher Chope (Conservative, Christchurch)

That is dealt with under option 4 on page 7 of the regulatory impact assessment, which states:

"Harvesting UK websites

This would involve the selective archiving of UK websites, with priority given to sites of current and future research potential. This would work on the basis of partnership and sharing with other agencies. It is assumed that the main institutions who would undertake and co-ordinate this work would be the National Libraries."

The document goes on to discuss the costs and benefits and states:

"The benefits include the ability to preserve, selectively, a representative sample of UK websites, and thus create a more complete national archive in the web domain."

That speaks for itself. The assessment goes on:

"Benefits will be accrued if this is undertaken in partnership with other agencies, eg the Public Record Office."

As regards the costs, option 4, "Harvesting UK Websites", states:

"There is no means of estimating the costs of archiving non-commercial websites, especially in the absence of reliable data as to how costs might be shared through partnership arrangements. The experience of the British Library's experimental Domain UK: Interim Report (March 2002) is valuable. On a three-year time horizon, it can be assumed that the running cost of £600,000 per annum (real costs at 2003 prices) would allow the management of an archive of UK domain websites in accordance with following targets: 10,000 research-focused UK domain websites (0.3 per cent. of the total domain of UK websites"—

in other words, only three in a thousand websites—

"on a quarterly basis, and undertake an annual harvest of the entire UK domain of three million websites."

I am not sure how it is possible to carry out an annual harvest of 3 million websites, but perhaps the promoter of the Bill will explain.

The regulatory impact assessment goes on:

"However, at this juncture it is not possible to estimate, with confidence, what costs would look like over a 10-year time horizon."

Eric Forth (Conservative, Bromley and Chislehurst)

Is my hon. Friend effectively telling me that the regulatory impact assessment concludes that an assessment cannot be made, and that despite the entire mechanism that is designed to allow us as legislators to make a judgment about the legislation, we are rendered virtually incapable of making such a judgment and are being asked to sign a blank and open cheque? Is that what my hon. Friend is suggesting?

Christopher Chope (Conservative, Christchurch)

I am not just suggesting that—I am stating it. That is the import of what is contained in—or rather, omitted from—the regulatory impact assessment. This is an extremely important debate. There may be people out there listening to the debate who have failed to get their work published with authorised publishers, and who may think that the way to get their work into the British Library is to set up their own website and put their essay, novel or whatever on that website. They may think that they have made a contribution to future generations that will be secured for the national archive. In the light of the regulatory impact assessment, it appears that such people may be acting under a misapprehension in building their own website and displaying the material on it, but one cannot be sure because of the vagueness of the issue.

Eric Forth (Conservative, Bromley and Chislehurst)

Is not my hon. Friend getting himself into some difficulty? Having made those remarks, how does he expect the mechanism envisaged in amendment No. 24, which he tabled, to work? Somebody, somewhere will have to make an assessment of the intellectual, cultural or scientific nature of the material, yet he has just graphically pointed out that the volume of material is enormous and that the resources are, presumably, limited. In the light of what he has said, can he help me to understand, before I make my contribution, how amendment No. 24 could be made to work?

Christopher Chope (Conservative, Christchurch)

I accept that the amendment could be made to work only with a very expensive bureaucracy that would assess the material to see whether it complied with the requirements that the amendment sets out. However, the alternative is the even larger bureaucracy involved in archiving and cataloguing every single item of online material from anybody's website, albeit within the confines of the United Kingdom—I give that the benefit of the doubt. In my submission, that task is even more unmanageable. That is why I tabled the amendment; I am attempting not to drive a coach and horses through the Bill or to undermine its purpose, but to bring some rationality to the issue of online material.

In Committee, the now Minister of State, Department for Transport, who was then responsible for the Bill, said that the National Library of Wales had a fantastic collection of pornography. I do not know whether we will find that national libraries vie with one another as to which has the largest and most extensive collection of pornography, but if that is their ambition, the burden will be breathtaking. That is why we need to give some serious thought to the implications of requiring everybody with online material to submit it to one of the national collections.

I could speak at greater length, but the point has been made and it does not need repeating. I hope that the hon. Member for Ipswich (Mr. Mole) can respond to the genuine concerns that have been expressed and explain how he believes the provisions can be applied in a common-sense way under the terms of the Bill as it currently stands.

Chris Mole (Labour, Ipswich)

I encourage the House to support amendments Nos. 9, 10 and 12 to 16, but I feel that it should resist new clause 4 and amendment No. 24.

In Committee, the now Minister of State, Department for Transport undertook to consider drafting an amendment defining a UK publisher. New clause 4, which was tabled by the hon. Member for North-East Cambridgeshire (Mr. Moss), returns to that issue. An amendment was drafted, but its implications proved problematic. It was suggested that the e-commerce directive provided a possible model, but it was thought unworkable. The Committee was also advised that the concept of the place of establishment did not translate as helpfully into UK law and applied only to the provision of commercial services, whereas the Bill potentially covers non-commercial services as well. The amendment would also refer back to European law and regulations that are capable of being changed every five years. That is not satisfactory in respect of a definition in a Bill that is certainly expected to last longer than that.

For those reasons, we have decided to keep the original provision in clause 6(2)(g) that allows the definition to be dealt with by way of regulations after a great deal more consultation and consideration. Issues to do with the location of web material are irrelevant, including the concepts of domain extensions, whether they are .uk, .com or whatever, because the Bill treats the role of the individual in publications as critical. The key point is who is responsible for the publication and not where it physically sits.

Publishers have expressed their concern at the implications of new clause 4 for international publications in which UK businesses are partly engaged—for example, in sub-editing. They fear that such a form of words would prejudice their businesses.

Under amendment No. 9, copyright would not be infringed by web harvesting, provided it was done in accordance with prescribed conditions.

Amendments Nos. 10, 12 and 13 are consequential on amendment No. 9. The first two amendments are technical and clarify references to the Bill when enacted, and the third adds the term "deposit library" to "reader" and "relevant material", so that the terms have the same meaning as in clause 7 and throughout the Bill.

Amendment No. 14 would make equivalent provisions to amendment No. 9 in respect of database rights to ensure that they are not infringed by web harvesting.

Amendments Nos. 15 and 16 are technical amendments that are consequential on amendment No. 17 in relation to terminological references to the Act and definitions.

I ask the House to resist amendment No. 24, which is in the name of the hon. Member for Christchurch (Mr. Chope), because it very much constitutes a subjective opinion. Such matters should be left to the collections policy of legal deposit libraries. Where collection policies interact with commercial interests, I would hope that a future technical committee could give advice.

Christopher Chope (Conservative, Christchurch)

How does somebody who has a novel on their own website know whether it should be submitted to the national collection, in accordance with the national collections policy?

Chris Mole (Labour, Ipswich)

Such an individual should look at the website of the British Library. The point of web harvesting is not to require activity by the publisher, but to simplify the process of deposit whereby libraries gather what they feel to be appropriate through their collections policy. The individual should look at the collections policy in trying to determine whether something should be collected.

The Bill tries to enable a continuation of the framework that existed for print materials. For example, bus timetables are not collected through legal deposit, and that would not translate into the electronic media. As for the question of what will limit the decisions on collection policy, the answer is available finance. We are talking not about a blank cheque but about cutting the cloth to the available resources in determining the scope of collection policies. Annual harvesting is a snapshot by automated electronic copying of what is deemed appropriate by collection policies.

Christopher Chope (Conservative, Christchurch)

Is the hon. Gentleman saying that the risk assessment described in the regulatory impact assessment has to be qualified by libraries' resources? The RIA says:

"If the provisions of legal deposit are not extended to non-print publications there is a considerable risk that important material contributing to the national intellectual, cultural and scientific record will not be secured and preserved".

Chris Mole (Labour, Ipswich)

The purpose of a collection policy is twofold: first, to define the intellectual content of the nation; and, secondly, to ensure that collections can be made within the available resources. Perhaps I can put the hon. Gentleman's mind at rest. The British Library has developed a sound collection policy over many hundreds of years. The website states:

"The collection of the British Library has been formed over many years and embraces all known languages. It traces its formal history to the foundation of the British Museum Library in 1753 in which three existing great collections were brought together: the Cotton Collection (which had been bequeathed to the nation in 1700) the Harley Collection and the Sloane Collection. To these was added in 1757 the Royal collection, formed by monarchs of earlier ages, and since then many others. The quality, size and depth of the Library's collection (estimated at above 150 million items) are central to its position as the national library.

While no library can any longer aspire to being comprehensive in its coverage of the world, the Library nevertheless collects widely and in depth in its areas of traditional strength.

The collection of the British Library operates on many levels and with reference to the rest of the Library system in the country. At the core it represents the collective memory of the nation by retaining for posterity the intellectual output of British publishing. To assist in this legal deposit legislation ensures that the Library is entitled to a copy of all books, journals and newspapers published in Britain. To this core is added purchase research-level material from around the world and appropriate unpublished material in different formats.

Our collecting policies reflect our function as a library of first instance and last resort; last resort for those whose primary access is the university, company or public library and first instance where the Library is the sole convenient source for the research material they require."

I hope that that reassures the hon. Member for Christchurch.

Eric Forth (Conservative, Bromley and Chislehurst)

I may be the only person in the Chamber who does not wear an anorak on such occasions. However, the layman is entitled to speak and I shall therefore venture into the e-world or cyber world about which I have little or no knowledge and in which I am not interested. I hope that I can add a different dimension to the debate by asking the promoter and perhaps the Minister some non-technical and non-e-questions.

My unease was increased when my hon. Friend the Member for Christchurch (Mr. Chope) gave us a useful and relevant analysis of the sheer volume of material in the new world that we are considering. He referred to materials that were available only online and also used the term e-journals. That could alarm someone such as me who has never visited a website; I hope to get through my life without ever doing so. However, it could also reassure me that I am immunised from the amount of rubbish that doubtless exists. I confess that I am also bereft of the wisdom that might reside on all those websites. One has to make a judgment.

New clause 4 and amendment No. 24 especially attracted my interest. In the light of the comments of my hon. Friends the Members for Christchurch and for North-East Cambridgeshire (Mr. Moss), who introduced new clause 4, I wonder how much meaning the provisions would have. Even with my scant knowledge of such matters, it strikes me that phrases such as "published on line", let alone

"first published from the United Kingdom"

may not be robust, meaningful definitions.

The technology is now such that people of any nationality can move freely throughout the world and communicate in a wireless mode on the internet and thence on websites. The term

"first published from the United Kingdom"

must therefore give rise to doubt in that context. Perhaps the promoter or the Minister can help me to understand better how the phrase is meaningful in a wireless world.

In the old days, there were certainties. The printed word had certainty and one could readily identify its provenance. However, provenance is a problem in a wireless world when one tries to use such phrases as

"first published from the United Kingdom"

or

"a natural person resident in the United Kingdom".

Although the term residency is well founded in, for example, nationality law and immigration law, I do not know whether the new clause would be workable. The more I look at it, the more I wonder how workable it would prove in this new technical world.

I hesitate even to discuss subsection (3) of the new clause, because I do not begin to understand it. I only hope that my hon. Friend the Member for North-East Cambridgeshire understands it and that someone else somewhere does as well, because I cannot imagine what would happen if it ever found its way into statute. It states:

"The presence and use of the technical means and technologies required to provide the information society service, do not, in themselves, constitute an establishment of the provider."

I suppose that that must have some sort of meaning. Perhaps someone will help me with it at some stage. It is not very sound grammatically, or very attractive linguistically; but it may be possible to interpret it in the world in which we now move. I shall leave that question hanging in the air for the time being, though, because I want to say something about amendment No. 24.

My hon. Friend the Member for Christchurch and I normally agree on most things. We have worked together happily and in harmony for many years, and it distresses me to part company with him now. I gave him every opportunity to explain his amendment to me, and he tried to do so, but sadly he has not succeeded so far.

At least my hon. Friend's speech drew from the promoter the admission—I think it was an admission—that the collection policy on which he relied so heavily in responding to my hon. Friend will inevitably be constrained by the available resources. That is, in a sense, self-evident, but, having been teased out of the promoter, it sets in context the great difficulty that underpins the Bill.

If my hon. Friend's statistics are correct, there will be an explosion in the amount of material available electronically. For centuries the amount of material available at any one time has been limited by the sheer physical constraints of page and print, and the effort required to translate concepts on to the page and disseminate them—although more has been published in each decade of the past century than in the whole of human history before that.

Even I, in my state of blissful ignorance, can imagine the extent to which the electronic facilities currently available to us will multiply. As my hon. Friend explained, anyone with a keyboard and access to the internet and the necessary technology can now contribute in a way that was formerly restricted by the physical requirements of the printing process. We are entering a new universe, in which material will expand exponentially.

In that context, the collection policy constrained by resources that the promoter has mentioned becomes highly germane—to say nothing of the questions raised by my hon. Friend, and what he is trying to do in his amendment. A collection policy is one thing: it is established, and, although constrained by resources, it works. I think, however, that real difficulties arise when we attempt to build into that the ambitions contained in my hon. Friend's amendment. I think my hon. Friend would be the first to admit—indeed, I think he did admit—that the mind boggles when one tries to imagine who will exercise a subjective judgment, meaningful in terms of the amendment, about what is intellectual, what is cultural, or what is scientific.

Working backwards through those, the scientific is probably by far the easiest of those categories readily to identify, although the volume of scientific material is, if anything, even greater than the literary output confronting us. At least one could envisage a start being made on identifying what is, and what is not, scientific. When one moves on to the cultural or intellectual, however, the task is much more difficult. As my hon. Friend the Member for Christchurch pointed out, the essays of a young mind might, in some cases, be regarded as of little value, but who is to say? Many of the great geniuses of history, in whatever sphere of endeavour, blossomed at an early age. Who would have set out to judge a musical, artistic, literary or scientific effort made at a very young age?

We are getting ourselves into new and very difficult territory, and although I fully appreciate what my hon. Friend was trying to do in tabling amendment No. 24 I am yet to be convinced that it is workable. I have to say to the promoter, however, that I am not convinced, either, that the collections policies on which he places so much reliance would be sufficiently robust to achieve what the Bill sets out to do.

I have come to the subject fairly new, and I thought, in my innocence, that this was a relatively limited, technical and focused Bill. I suspect that the promoter started out thinking that too, but I am sure that he would now admit that he has been surprised at the extent to which, when the House has examined it—this is the key point, and it is a tribute to the parliamentary process—on Second Reading, in Committee and now on Report, we have begun to see its ramifications.

I pay tribute to the promoter because he has, very properly, been prepared to table new clauses and amendments to try to put his Bill in order, and he is to be congratulated on that. I am left with the uneasy feeling that although the Bill's objectives are shared, I think, by everybody, it may be much more difficult to implement than was thought.

Christopher Chope (Conservative, Christchurch)

Does my right hon. Friend agree that one of the problems is that the promoter has sought to make the Bill what he has described as future-proof?

Eric Forth (Conservative, Bromley and Chislehurst)

If that is so, I would have thought that, in the context of the technologies that we are discussing, it is a pretty bold claim, to put it mildly. Even I am aware that the advance of this technology, perhaps more than any other in history, is mind-bogglingly rapid. I would have thought that a more modest aspiration was appropriate: to try to frame legislation that can contain what we think we know of the existing technology and to make an effort to look a little bit ahead. But the claim that this will deal with the future is barely credible.

My own reservations are about what is, or what I believe to be, and the difficulties that arise therefrom. It distresses me to say that, on this occasion, I am not happy with the new clause tabled by my hon. Friend the Member for North-East Cambridgeshire, for the reasons that I have given and, sadly, I am not yet convinced about amendment No. 24 in the name of my hon. Friend the Member for Christchurch. Until I hear more from them, and I hope to seek to catch your eye again, Mr. Deputy Speaker, I may have to withhold my support.

Simon Thomas (Plaid Cymru, Ceredigion)

I do not know about interplanetary logging on and logging off, but I feel as though we had been to the planet Zog and back in the last half an hour. There are, however, a couple of serious points to be made about the amendments.

The Bill puts print and non-print publications, published for use in the United Kingdom, on exactly the same footing. New clause 4 would change that relationship, and I would oppose that. I believe strongly that what we are trying to achieve with the Bill is the recognition that non-print publications are as important to our cultural, intellectual and scientific life as were print publications in the past, and we must recognise that they need to be collected in exactly the same way as we have collected print publications.

That brings me to amendment No. 24 and collections policy. It is a pity that some hon. Members in the Chamber today did not attend the Second Reading debate as they would have been able to hear strongly expressed views about what librarians and archivists have achieved in building up our national collections. There are six for the whole United Kingdom, three of which are the national collections for the constituent nations; there are also collections in Oxford and Cambridge and one for the whole island of Ireland.

The Second Reading debate made it clear—as I hope will also be clear today—that those national collections were built up using the knowledge of archivists and librarians and their interpretation of what was culturally significant at the time. They may not always get it right, but they have a depth of experience and a well of knowledge, as well as the sense of the history of such things that is passed on in those institutions from generation to generation. I should have thought that the right hon. Member for Bromley and Chislehurst (Mr. Forth) would have appreciated that work and its future.

I speak as someone who has worked in such an institution, so I have seen how such work is carried out. I am sure that the right hon. Gentleman and his colleagues would be welcome at any of our national libraries to see how the collections were built up. The Bill entrusts librarians and archivists with future proofing in the sense that it entrusts them with collection policy, and I very much support that.

Andrew Murrison (Conservative, Westbury)

I rise principally in support of amendment No. 24. I agree with the hon. Member for Ceredigion (Mr. Thomas) that librarians and archivists are extremely skilled. Perhaps they can be entrusted to determine what is significant, but they need guidance in statute, as, by nature, they are magpies—rightly so. However, the collecting instincts that are reflected in the provisions of this generally laudable Bill need some structure or framework.

Often, in our haste to collect everything, we belittle and demean what is really important. Most of us have experience of weeding our office files, for example. We do so because we want to ensure that important documents are not disguised by the generality, which is relatively trivial. That workaday example has some relevance in the context of our debate.

One of my chief concerns relates to awareness, compliance and enforcement. Under the current law applying to the printed media, we see how things can operate sub-optimally. For example, we publish political leaflets, with the imprint duly appended. Under the current law, in theory, such leaflets should be deposited yet few people would seriously claim that they were of

"national intellectual, cultural or scientific"

importance. The Liberal Democrat "Focus" leaflets—dare I say famous "Focus" leaflets?—are generally complete fiction. No one would suggest that they should be deposited, yet under current law perhaps they should be.

Most of us have web pages these days—with the exception, perhaps, of my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth).

Eric Forth (Conservative, Bromley and Chislehurst)

Certainly not.

Andrew Murrison (Conservative, Westbury)

In theory, under the law, web pages should be deposited and, as most of us update them, they should be redeposited at regular intervals. However, no one would seriously suggest that those documents have any great significance for future historical research, although one or two of us might flatter ourselves that they might. I suspect, however, that they will not.

Amendment No. 24 would cover such matters and, with guidance—I hope—from professional archivists and librarians, would exclude the trivial, and for that reason I support it.

Estelle Morris (Labour, Birmingham, Yardley)

I particularly want to address my remarks to new clause 4 and amendment No. 24, as I support the other amendments tabled and ably introduced by my hon. Friend the Member for Ipswich (Mr. Mole). However, before I do so, I wish to say that this business is undoubtedly complex and that many of the comments made by hon. Members have been right and proper. As people who have charge of passing down our cultural heritage to the generations that come after us, we must decide whether we want to include non-print publications. Whether we like it or not and whether or not we have a website, we must accept that the world is moving into a time when communication and publishing takes place other than in print.

My personal view is that it is right for us to try to find a way forward so that future generations can have access to what was published in the past. That is my starting point. In some ways, that is very simple, but I entirely accept that, once we try to make that happen, things become very complicated, partly because it is a world that does not stand still and all the notions of what constitutes a publication, let alone where it is published, call for decisions that are very difficult to write down in law. That has been the difficulty with the Bill throughout its proceedings in Parliament. Certainly, from what I have picked up in the past few days, I sense that that has been the difficulty.

What we are doing—I think that this is what my hon. Friend the Member for Ipswich meant when he referred to time proofing—is providing a framework that will allow us to have discussions with people who are far more knowledgeable than we are. Certainly the right hon. Member for Bromley and Chislehurst (Mr. Forth) has admitted that he is not very knowledgeable about websites. I may know a little more about them, but I am certainly not as knowledgeable as I would need to be if I were to take decisions about what should be saved for the future. The comments made by the hon. Member for Ceredigion (Mr. Thomas), who has a good background in this subject, were absolutely spot on, and I wish to emphasise them, which is why I shall concentrate on new clause 4 and amendment No. 24.

New clause 4 deals with an important issue and I give the hon. Member for North-East Cambridgeshire (Mr. Moss) credit for raising it, but I draw his attention to clause 6(2)(g). The Bill does not state what constitutes a UK publication in primary legislation. We are not deciding that today; it will be subject to further regulations. If the hon. Gentleman feels that new clause 4 offers his preferred definition of what constitutes a UK publication, he could propose that as part of those regulations and—who knows?—it might be adopted, but, for once, I agree with the right hon. Member for Bromley and Chislehurst that that is not the right way to define such things.

I take the point made by the hon. Member for North-East Cambridgeshire that that may be his preference, but the best way to deal with this issue is to have the proper consultation and discussions with those who are very knowledgeable about what constitutes a UK publication and for the definition to be the subject of those regulations. I do not wish to detract from the fact that I do not have any easy definition up my sleeve. I do not know what the definition will be—it is very difficult—but it is important to consider where things are published.

The clause that the right hon. Member for Bromley and Chislehurst read out was absolutely key because some of the definitions in that clause are not used in the legislation. If we were to adopt that part of the legislation, we would have great difficulty in interpreting it. I am not arguing against the definition of what constitutes a UK publication proposed by the hon. Member for North-East Cambridgeshire; I am arguing in favour of acting under clause 6(2)(g), having proper consultations and then making regulations.

Malcolm Moss (Conservative, North East Cambridgeshire)

I take some reassurance from the right hon. Lady's words in answer to the proposal in new clause 4, but does she agree that the problem for those who must deal with all this—in particular, the publishers, not the libraries—is the great uncertainty? They do not know what will evolve from the consultations that the Minister and her predecessor have promised, so they are completely in the dark about what the implications, particularly the economic ones, will be for them in future. I hope that, at some stage, the Minister will confirm her predecessor's commitment to the consultation process and the formation of a panel, but will she now give me and those involved a guarantee that, when the panel meets and discusses the implications of the proposals on origination and territorial limitations, nothing will be agreed that strikes against their economic interests?

Estelle Morris (Labour, Birmingham, Yardley)

Further amendments to the Bill state rightly that such economic interests need to be taken into account. That is established in the legislation. To refer back to my opening comments, it is almost our duty to find a way through this, although I accept how difficult it is. If the hon. Gentleman is asking me to say that in all cases, however great or small the economic cost to the publishers, that consideration would in all circumstances override the decision to deposit these materials, I cannot give such an assurance, and I would not want to do so. Other people's interests are also at stake, and that is the balance that we are striving to keep. I shall take every opportunity that I can to confirm what my predecessor said about setting up the forum and the consultation, not acting without expert knowledge, and doing all that we can to take the industry and publishers with us and to allay their fears—I understand that it is difficult when they do not know what will be the eventual shape of the regulations. I repeat, however, that it is right that we try to find a way through. I can do no more than that.

I hope that the hon. Member for North-East Cambridgeshire will withdraw new clause 4 and wait for the proper definition of a UK publication in regulations. I might make the same comments in relation to amendment No. 24 tabled by the hon. Member for Christchurch (Mr. Chope). Again, it is disappointing news, but his childhood essay may not be deposited in one of the major libraries of this country. It never was a provision of the Bill that everything on a website and on the internet would find its way to be deposited in a library. That was never the intention. What we are left with is the process of selection, which is another difficult area. We are grappling with a legislative process that is dealing with something that was not even dreamt of when that legislative process originated in history. That does not mean that we will not have a damn good try at making the legislation as effective as possible.

Briefly, the reason that I resist this amendment is that we want to consult the experts. I can add no more to the comments made by the hon. Member for Ceredigion, whose predecessor, I remember, used to speak on education Bills, so he and I were well used to the right hon. Member for Bromley and Chislehurst. It is proper to take the advice of those who may not be democratically elected but who have the practical and historical knowledge to enable them to decide what it might be appropriate to keep. I ask the hon. Member for Christchurch not to press amendment No. 24, as it will be the subject of further consultation.

If the Bill passes through all its parliamentary stages, we will not immediately begin to collect all the online and offline material that has been published. It will not be a case of everything having to be deposited from day one. The advisory panel, which, I hope, will work with the library and experts, will decide almost on a rolling basis what is collected. It will not therefore impact on all the material at exactly the same time—let us say, six months from now—but will be done in a carefully managed way. In response to both hon. Gentlemen who expressed such concern, it is absolutely right that the way that we determine what will be collected, and when and how it will be collected, will be subject to further consultation with those who have the relevant experience.

Eric Forth (Conservative, Bromley and Chislehurst)

Given that the Minister has only recently picked up this responsibility, she is doing a wonderful job in the House today. If only all Ministers were as confident and competent as she has proved to be. She has earned fully the prize that she received the other night.

The Minister has made several references to future consultation. Does she not concede, given that she has only recently arrived in her post, that the Bill would have benefited from much more previous consultation and, who knows, from pre-legislative scrutiny, which is very trendy under her Government at the moment? Perhaps if the Bill had been a Government Bill, scrutinised pre-legislatively—

Simon Thomas (Plaid Cymru, Ceredigion)

Online?

Eric Forth (Conservative, Bromley and Chislehurst)

Certainly not. Fifty per cent. of the population are still not online, and we do not want to disfranchise them. I thought that we were all-inclusive these days. Does not the Minister concede that in offering future consultation she highlights the fact that the Bill has suffered greatly from not having enough previous consultation?

Estelle Morris (Labour, Birmingham, Yardley)

That very thought crossed my mind earlier this week.

Christopher Chope (Conservative, Christchurch)

The Minister said that she saw some sense in my amendment No. 24 but did not like its precise wording and wanted to consult about it. The wording in that amendment is the same as in the regulatory impact assessment produced by Baroness Blackstone on 11 March. Paragraph (iv) on page 3 refers to non-print publications and says that

"there is a considerable risk that important material contributing to the national intellectual, cultural and scientific record will not be secured and preserved".

However the Minister now says that that language is not appropriate and should be the subject of consultation.

Estelle Morris (Labour, Birmingham, Yardley)

The problem arises in defining that. I have every confidence in my right hon. Friend the Secretary of State for Culture, Media and Sport, but I do not think that I would be taking too much of a risk if I were to say that she might not wish to take to herself decisions about defining what fulfils the criteria.

Regulatory impact assessments will be published in respect of any regulations made, so clarifications that have been sought today and not received might get another bite of the cherry later. The hon. Gentleman will have another chance to put forward his definition of what should be collected when the consultation takes place.

Malcolm Moss (Conservative, North East Cambridgeshire)

rose—

Estelle Morris (Labour, Birmingham, Yardley)

I will not give way, as I have concluded my remarks.

Malcolm Moss (Conservative, North East Cambridgeshire)

I am not surprised that the Minister sat down when she was ahead. However, will she respond to one more question before I decide what to do with new clause 4? She said that a consultation panel would work with the industry to consider carefully the implications of the definition of "territoriality". Is she saying that she believes that it is vital to define a UK publication and that she will seek to do that with the panel?

Estelle Morris (Labour, Birmingham, Yardley)

We have to find a way through that. If the hon. Gentleman is asking whether something I say will define the outcome of the consultation, the answer is no. If he is saying that it is an important issue that must be resolved to the understanding—if not the agreement—of all concerned, the answer is yes.

Malcolm Moss (Conservative, North East Cambridgeshire)

The Minister again chose her words extremely carefully, referring to "understanding" and not to "agreement". This is an important issue that must be addressed. I hope that the Minister will concentrate on it perhaps before the Bill goes to the other place. The Bill may fall on this issue if "understanding", not "agreement" is the key ingredient in the consultation.

With those prescribed assurances on the record, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Clause 6 — Regulations: Deposit of Non-Print Publications

Chris Mole (Labour, Ipswich)

I beg to move amendment No. 1, in page 4, line 3, leave out subsections (3) and (4).

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will convenient to take the following amendments: No. 25, in page 4, line 5, leave out subsection (4).

No. 19,

that Clause 9 be divided into three Clauses, the first consisting of subsections (1), (7) to (7C) and (9) (Regulations: general), the second of subsections (2) to (6) (Regulations: Scotland and Wales) and the third of subsections (8) and (10) (Regulations: Trinity College, Dublin).

No. 17, in page 6, line 38, clause 9, at end insert—

'(7A) Regulations under section 1(4) or 6 may not be made so as to apply to works published before the regulations are made.

(7B) Regulations under section 1(4) or 6 may not be made unless the Secretary of State considers that the costs likely to be incurred as a result of the regulations by persons who publish works to which the regulations relate are not disproportionate to the benefit to the public arising from the delivery of copies of such works.

(7C) Regulations under section 1(4), 6, 7 or (Exemption from liability: activities in relation to publications)(5) may not be made unless the Secretary of State considers that the regulations do not unreasonably prejudice the interests of persons who publish works to which the regulations relate.'.

Government amendment (a) thereto, in line 3, after '1(4)', insert '2'.

Government amendment (b) thereto, in line 8, after '1(4)', insert '2'.

No. 22, in page 6, line 38, at end insert—

'(7A) Regulations under this Act may not be made—

(a) so as to apply to works published before the regulations are made;

(b) unless the Secretary of State considers that the costs likely to be incurred as a result of the regulations by persons who publish works to which the regulations relate are not disproportionate to the benefit to the public arising from the delivery of copies of such works, or

(c) the Secretary of State considers that the regulations do not unreasonably prejudice the interests of persons who publish works to which the regulations relate.'.

No. 18, in page 6, line 41, leave out from 'satisfied' to end of line 43 and insert

', in relation to relevant material delivered pursuant to such an entitlement—

( ) that as regards the restriction by section 7 (having regard to any regulations made under that section) of activities in relation to relevant material, the restriction of those activities under the laws of Ireland is not substantially less,

( ) that as regards the protection under the laws of any part of the United Kingdom of copyright, publication right, database right and patents in relation to relevant material, the protection under the laws of Ireland of corresponding rights is not substantially less, and

( ) that as regards the protection from liability under subsections (3) and (4) of section (Exemption from liability: activities in relation to publications) (or those subsections as applied by regulations under that section), the protection under the laws of Ireland in relation to corresponding liability is not substantially less.'.

No. 21, in page 6, line 47, at end insert—

'(9A) Regulations may not be made under this Act that would require a publisher to act in breach of any contractual terms entered into with a third party residing outside the United Kingdom.'.

Chris Mole (Labour, Ipswich)

At the outset, I wish to make it clear that I encourage the House to support amendments Nos. 1 and 17 to 19, but to resist amendments Nos. 21, 22 and 25. I shall leave all comments on Government amendments (a) and (b) to amendment No. 17 to my right hon. Friend the Minister.

Amendment No. 1 relates to amendment No. 17 on proportionality. By deleting clause 6(3) and (4), which reappear in amendment No. 17, it moves, through amendment No. 19, the provision that says that regulations can apply only to works published after the regulations are made and the provision dealing with the impact on the publishers, which has been expanded and improved, to clause 9. That ensures that the provisions apply to regulations made under the general duty to deposit in clause 1(4), as well regulations on the use and deposit of non-print publications made under clause 7 and regulations made under clause 6.

Amendment No. 17 addresses proportionality and publishers' interest. The question of proportionality—balancing the needs of a publisher with those of a national archive—was raised in Committee primarily by the hon. Member for North-East Cambridgeshire (Mr. Moss) and my hon. Friend the Member for South Derbyshire (Mr. Todd). The amendment is an attempt to satisfy those concerns and to meet the underlying requirements of the Bill. It will ensure that regulations may apply only to works published after the regulations were made by covering regulations made under clauses 1(4) and 6—the provision replaces clause 6(3).

The amendment also replaces the requirement in clause 6(4) and deals with proportionality and unreasonable prejudicing of the interests of publishers. It provides that regulations requiring deposit may be made only if the Secretary of State considers that the costs that are likely to be incurred by the publishers are not disproportionate to the benefit to the public of deposit. Regulations requiring deposit and dealing with access to the material deposited and harvested may be made only if the Secretary of State considers that they do not unreasonably prejudice the publishers of the relevant works.

The hon. Member for North-East Cambridgeshire tabled amendment No. 22, which would extend the proportionality provision to all regulations made under the Bill. I can say only that we have done that, when possible and practical, and I remind him that issues of proportionality will naturally be considered under each regulatory impact assessment that is required before the production of a set of regulations.

Amendment No. 18 relates to deposits in the Republic of Ireland and clarifies the circumstances in which material may be required to be deposited with Trinity college. Clause 9 currently provides that material need not be deposited with Trinity college if the restrictions on its use under Irish law are substantially less than those under UK law. The amendment clarifies and extends that provision by providing that deposit is not required when protection under intellectual property rights and liability for defamation is substantially less.

Amendment No. 19 is a consequential amendment that arises from new clause 1. It will divide clause 9, which is somewhat over-long, into three separate clauses. The proposed headings are "Regulations: general", "Regulations: Scotland and Wales", and "Regulations: Trinity College, Dublin". I am sure that hon. Members will agree that that will make the detail in the clause much more digestible.

Amendment No. 21 was tabled by the hon. Member for North-East Cambridgeshire. I understand that UK legislation cannot offer protection from breach of contract obligations to a greater extent than under the provisions in new clause 1. It is not possible to offer protection for contracts governed by foreign laws—we discussed the issue tangentially earlier. Future foreign contracts may be appropriately negotiated to take account of requirements to deposit, and I doubt that many international publishers would want to lose the ability to sell into the extensive UK market.

It is expected that overseas courts would not award more than nominal damages for breach of existing contracts if that were due to the publisher complying with an obligation under the laws of another sovereign state. However, if the matter continues to cause concern, it may be considered when regulations are proposed, consulted on and assessed.

I discourage hon. Members from supporting amendment No. 22, which was tabled by the hon. Member for North-East Cambridgeshire, because proposed new clause 9(7B) in amendment No. 17 would achieve the same effect.

I urge the House to resist amendment No. 25 because it would remove the Secretary of State's requirement to consider the impact of regulations on persons who publish works of the description prescribed in the regulations, which would thus remove the protection for the business interests of publishers that we have worked to put in place. There has been long consideration of the impact that regulations would have on publishers and there is strong need for extensive consultation on the detail of those. Amendment No. 17 specifies a tough regime in which the Secretary of State must consider the economic implications of regulations that she proposes.

Eric Forth (Conservative, Bromley and Chislehurst)

I generally welcome amendment No. 17, but I have doubts about its viability. I think that I welcome proposed subsection 7A, which I would characterise as the non-retrospectivity provision. I am usually a great opponent of retrospection in legislation, but it is odd that the promoter should seek to prevent retrospection, because this is one of the very few cases in which it is justified. If we can only guarantee to capture this vital and valuable material from the point at which the Bill comes into effect, and perhaps risk missing a large part of material created until then, retrospection, rather unusually, may be justified. I shall leave it at that, because I would have to be talked into opposing the amendment for that reason. However, it demonstrates that there can never be any absolutes.

Amendment No. 17 also deals with the concept of disproportionality. Perfectly reasonably, it says that regulations shall not be made unless the Secretary of State considers that the costs likely to be incurred are disproportionate to the benefits—we are therefore dealing with our old friends, costs and benefits. I think that the hon. Member for Ipswich (Mr. Mole) said that he expected regulatory impact assessments to be used on a case-by-case basis. However, that does not inspire confidence in me, because the recent history of regulatory impact assessments has not been very good, as my hon. Friend the Member for Christchurch (Mr. Chope) has been at pains to point out, not just today but on previous Fridays. Time after time, the regulatory impact assessment has either not existed or has not been published or promulgated, or has been available only at the last minute.

At the very least, I would like an assurance from the Minister, who will preside over the assessments for, I hope, a very long time, that proper RIAs will be made, if they are to be as integral to the Bill as the hon. Member for Ipswich suggested. With that proviso, I am prepared to go along with amendment No. 17, which introduces the vital link between costs and benefits that most of us want.

We should welcome the requirement in amendment No. 17 that regulations

"may not be made unless the Secretary of State considers that the regulations do not unreasonably prejudice the interests of persons who publish works".

I would welcome the expansion of that concept. It sounds encouraging, but how on earth do we balance the interests of people who publish the works against more general interests? I should be grateful if someone could give me an example of a case in which the interests of the publisher prevail over the more general interests and, presumably by implication, prevent material from being recorded. Such recording is, of course, one of the intentions of the Bill.

Although I welcome the provisions in amendment No 17, they require a little more explanation. I would like a commitment from the Minister on the way in which regulatory impact assessments will routinely fit into the Bill's mechanisms. I should also like an expansion of proposed subsection 7C and an example, even a hypothetical one, of the way in which the publisher's interests outweigh more general interests.

Christopher Chope (Conservative, Christchurch)

I think that the hon. Member for Ipswich (Mr. Mole) has misinterpreted my amendment No. 25 because it would remove the requirement that

"Regulations . . . may not be made so as to apply to works published before the regulations are made."

I tabled that amendment because I am concerned about the gap between the situation as it is now and the time when the regulations might be made. If it is important to capture this material so that it will not be lost to posterity, we may be waiting many years before the regulations are brought forward.

Having heard the Minister's helpful comments in response to the previous group of amendments, it seems that the matter will be so complicated, particularly with online publications, that it may be many years before we have any regulations. In the meantime, there will be no requirement that important online publications should be deposited with the library. I hope that the hon. Gentleman can address my concern that there may be a lacuna in the Bill if subsection (4) remains.

Estelle Morris (Labour, Birmingham, Yardley)

I particularly wish to speak to Government amendments (a) and (b) to amendment No. 17, which I think has been welcomed. The amendments seek to offer extra protection to the publishers, because, as I think has already been said, one of the characteristics of online publishing is that work can be republished and republished and changed every day, so a decision has to be made as to whether a publication is new or substantially the same. The same could be true of printed books as well.

Amendment No. 17 and amendment (a) merely give the reassurance that when consideration is given to whether a publication is substantially the same, the cost to the publishers will be taken into account. I hope that will be welcomed by the publishers as some protection.

I am glad that the hon. Member for North-East Cambridgeshire (Mr. Moss) acknowledged my previous comment that RIAs will be published in respect of the regulations, and that they will be introduced in the right and proper way, giving yet another opportunity to discuss the consequences of any subsequent regulations. I hope that he will understand if I resist trying to invent an example of a case of the interests of the publisher outstripping the interests of the public; otherwise we would be here all weekend, let alone all afternoon.

Malcolm Moss (Conservative, North East Cambridgeshire)

I wish to speak to amendments Nos. 21 and 22. I mentioned amendment No. 21 in my opening remarks on new clause 3, to which I said it was related. We had a fairly good debate on that and I do not wish to continue that discussion any further at this juncture, save to say that it is an important point that I believe will be revisited in the other place.

The hon. Member for Ipswich (Mr. Mole), in discussions with the Department, has gone quite a long way to meeting some of the reasons for tabling amendment No. 22, except that it referred to regulations under the Bill whereas amendment No. 17 restricts the regulations to clauses 1(4) or 6. Clause 1(4) states:

"In the case of a work published in a medium other than print, this Act applies to a work of a prescribed description."

Therefore amendment No. 17 refers to non-print publications.

My amendment has not made the grade, so to speak, but I sought to broaden the debate from non-print to print, because there are still some concerns relating to the print medium, which I am sure is an issue to which we will return in the other place. Unfortunately, as the Committee stage was rather rushed, although there has been some consultation, the time scale has been limited and many of us received the amendments only a day or so ago and the selection of amendments only last evening. I am informed by the publishing community that it was told of amendments, or received amendments, only after the deadline for tabling them at 7 o'clock the other day. It is not pleased about that. It meant that it was unable to adjust some of its ideas and proposals accordingly. There are outstanding issues, especially with regard to print, that will be revisited. I am putting that down for the Minister and the proposer to take on board, because these matters will need to be addressed fairly rapidly in the short time that is available before the House rises.

As drafted, the structure of the Bill will continue without any change to the current system of deposit of print publications to the British Library, and on request to the other legal deposit libraries. There is, however, a failure to recognise the economic impact of the current system on a significant number of print publishers of high-value business, particularly management and scientific reports, directories and printed databases. These publishers may well sell fewer than 10 copies of any given title. The costs to them are, first, the marginal cost of supply and, secondly, the loss of sales resulting from access to deposited materials by users, or by the deposit libraries not purchasing those materials.

The deposit libraries have recognised that and have accepted that publishers can embargo access to their materials and deposit to on-deposit libraries only. However, there was no consultation on the current system of print deposit. The Kenny committee was set up by the Government to consider these matters, and especially non-print publishers. It focused only on non-print publishers, and the libraries acknowledged the difficulties under the current system for certain publishers. Those difficulties are not acknowledged in the Bill. I attempted through amendment No. 21 to bring them within the ambit of the Bill. I recognise that I failed to do so, but I am sure that the issue will be revisited, as I have said, in the other place.

It seems fair and reasonable that protections should equally apply to all publications, whether they are format print or non-print. In amendment No. 17, the proposer has gone quite a long way to accepting the principles of disproportionate burden, but only as they apply to non-print publications. An imbalance is left for some publications, particularly of the high-value, low-volume producers. That being so, I shall not press my amendments. As I have said, I can assure the Government and the proposer that these issues will be revisited.

Chris Mole (Labour, Ipswich)

I welcome the contribution of all hon. Members. I shall respond to the challenge to identify an example of the balance of decision between the publisher interest outweighing the requirement to deposit. The hon. Member for North-East Cambridgeshire (Mr. Moss) has touched on the concept of high-value, short-life publications in the print world as much as in the non-print world. In the non-print world, it is particularly critical for a number of publishers that there should be some decisions about at least making a delay in the availability of deposited material so as not to interfere with their ability to extract commercial benefit from their short-run publications.

The other circumstance would be one where sales are less than a certain number. It would be appropriate for the Secretary of State to make regulations requiring that deposits not be made.

The hon. Member for North-East Cambridgeshire commented on the difficulties from which we have all suffered as a result of the time that it has taken to nail down some of the detail in the Bill. The issue of variants to the print regulations has been raised at the 11th hour. I thought it was clear since Second Reading and through Committee that there was no intention to change the 1911 framework with regard to print.

I respect the concern of the hon. Member for Christchurch (Mr. Chope) about the gap that may exist until regulations are made. He should accept an honest commitment made by the Minister to make progress where progress can be made, and as quickly as possible.

Amendment agreed to.

Clause 7 — Use of Non-Print Publications

Chris Mole (Labour, Ipswich)

I beg to move amendment No. 2, in page 4, line 9, leave out 'use' and insert

'do any of the activities listed in subsection (1A) in relation to'.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to discuss the following amendments: Nos. 23 and 3.

No. 4, in page 1, line 11, clause 2, after 'of', insert 'significant'.

No. 5, in page 2, line 2, after 'of', insert 'significant'.

No. 6.

No. 7, in page 2, line 10, leave out from 'of' to 'thing' in line 11 and insert

'any vessel or part of any vessel.'.

No. 8, in page 2, line 12, leave out 'trace or'.

No. 11.

Chris Mole (Labour, Ipswich)

I encourage the House to support amendments Nos. 2 to 8 and 11, and to resist amendment No. 23. Amendments Nos. 2 to 8 address libraries' use of deposited material or clarify what libraries can do with the material that is deposited. They provide that neither libraries nor readers can perform any of the activities listed in subsection (1A) unless regulations are made under subsection (2) allowing them to do so. Amendment No. 3 details the range of activities allowed, subject to regulations, in respect of legally deposited material. The amendment provides that activities that can be authorised are authorised. Those activities include using the material, copying it, adapting an accompanying computer programme and, lending, transferring and disposing of material. Amendments Nos. 2, 4, 5, 6, 7 and 8 are all consequential upon it.

Amendment No. 7 relates to web harvesting. It provides that material that has been web harvested is covered by the restrictions on use in clause 7, as is any copy that is made of the work originally deposited.

The hon. Member for Ceredigion (Mr. Thomas) tabled an amendment that would allow relevant persons to copy material without exception. I understand his concern that the work of librarians and archivists must not be seen to suffer or be hindered by cumbersome legal requirements. That is not the point of the Bill. Although I appreciate the sentiment behind his argument, I conclude that at this stage it is rather premature. What a library can do with the material once it is deposited will be considered prior to regulations being made. It seems pointless now to make exceptions to the activities detailed in amendment No. 3 when the matter will be considered and consulted on in due course.

Amendment No. 11 relates to copyright and makes clear the effect of regulations made under the Copyright, Designs and Patents Act 1988 to exclude the application of provisions of the Copyright Act. It rewrites subsection (3), clarifying the scope of prescribed activities for which regulations under clause 8(2) can be made. It may be necessary to turn off some or all of the copyright exceptions as they apply to non-print legal deposit material, to ensure that deposited material cannot be used without infringing copyright in circumstances where that would not be possible with the same material in other libraries that have had to purchase it.

Simon Thomas (Plaid Cymru, Ceredigion)

Amendment No. 23 is a probing amendment so that we can return in the House to an issue that I considered in Committee and on which I think it important to hear the views of the promoter and the Minister. We all accept that the Bill in the form in which we are now considering it is significantly changed from the Bill originally introduced by the hon. Member for Ipswich (Mr. Mole). It has been improved as a result of the process that it has undergone. However, one thing has been lost.

In the original Bill, clause 7(2)(a) stated that it would be right for a deposit library or a person acting on its behalf to copy relevant material for the purposes of preservation. That clause was replaced by new clause 2, which has become clause 7 in the Bill before us. It has been further amended by the hon. Member for Ipswich today. The Bill makes it clear that it is okay for a library to copy material for the purpose of making information available to readers, but there is no specific cover for a librarian or archivist making a copy for archival purposes. There is something to be gained in that respect. We must recognise that not only the content of online or off-line non-print material can be of historic and cultural significance, but its format. Sometimes the way in which the information was made available to the public can also be of interest in the future. Therefore, it is sometimes not only the content that should be given to succeeding generations, but knowledge of how it was made available. The equivalent are the values of different editions of the same book. Later editions of an original publication may have different illustrations or have been put together in a different way to react to the way in which the audience has changed over succeeding generations. That can tell us a lot about how our culture has changed in that period, and the same is true of non-print materials.

I am concerned that the Bill in its current format would make it easy to ensure that information is kept available to the reader, but would not allow a librarian or archivist to ensure that its format is preserved. In other words, preservation is not recognised, despite its inclusion in the long title of the Bill, as a reason for copying in itself.

When I raised that matter in Committee, the then Minister, now the Minister of State, Department for Transport, who has been replaced by the Minister of the year—I welcome her to these proceedings—said that my questions

"went a little further than that",

and added:

"we will certainly reconsider the matter to see whether things can be further clarified, as we are talking about an important and valuable function."—[Official Report, Standing Committee F, 4 June 2003; c. 2.]

He was speaking about the function of preservation. I have tabled the amendment to give the House an opportunity to reflect on what the then Minister said, so that we can reconsider it and further clarify the matter. I wish to be absolutely sure that when librarians and archivists make copies for preservation reasons and archival purposes in their institutions, they are not going outside the remit given to them in the Bill.

Estelle Morris (Labour, Birmingham, Yardley)

I listened carefully to the speech of the hon. Member for Ceredigion (Mr. Thomas). I certainly support my hon. Friend the Member for Ipswich (Mr. Mole) in his belief that the matters that are being raised are covered in our amendments. In the spirit of helpfulness, however, I should like to say that I trust the hon. Gentleman's judgment on this issue. If he has ongoing fears or reservations in respect of his suggestion that it is not properly covered, will he accept from me an assurance that we will have the chance to discuss it outside the Chamber and reflect on it? If we are persuaded that we have not made appropriate safeguards to ensure that what he says needs to be done is done—I accept that we must preserve such things for future generations—we will take the opportunity to table an amendment in another place. That is not a promise to table an amendment, but given the passion and clarity with which he spoke, I hesitate to say that he should have no fears and that the issue is fully dealt with. I am merely trying to be helpful, because I do not have the background knowledge to know whether there are genuine grounds for his fears. All I can say is that I am assured by our lawyers that his concerns should be covered. If we discuss the matter outside the Chamber, we will be left with an opportunity to table amendments should it be necessary to do so.

That apart, I support the comments and recommendations made by my hon. Friend the Member for Ipswich.

Amendment agreed to.

Amendments made: No. 3, in page 4, line 9, clause 7, at end insert—

'(1A) The activities are—

(a) using the material (whether or not such use necessarily involves the making of a temporary copy of it);

(b) copying the material (other than by making a temporary copy where this is necessary for the purpose of using the material);

(c) in the case of relevant material comprising or containing a computer program or database, adapting it;

(d) lending the material to a third party (other than lending by a deposit library to a reader for use by the reader on library premises controlled by the library);

(e) transferring the material to a third party;

(f) disposing of the material.'.

No. 4, in page 4, line 10, leave out 'the use by'.

No. 5, in page 4, line 11, leave out 'of' and insert

'to do any of the activities listed in subsection (1A) in relation to'.

No. 6, in page 4, line 14, at end insert 'or copied'.

No. 7, in page 4, line 30, at end insert—

'(iii) a copy of a work to which section (Exemption from liability: activities in relation to publications)(6) applies;

(iv) a copy (at any remove) of anything within any of subparagraphs (i) to (iii);'.

No. 8, in page 4, line 34, leave out paragraph (d)—[Mr. Mole.]

Clause 8 — Use of Non-Print Publications: Copyright etc.

Clause 9 — Regulations: Supplementary

Clause 10 — Interpretation

Chris Mole (Labour, Ipswich)

I beg to move, That the Bill be now read the Third time.

I thank all right hon. and hon. Members who are here today to debate my Bill, some of whom were involved in its Committee stage. I thank them for their interest. The Bill is now very much better for having been through that process; it has benefited from the close scrutiny of many experienced colleagues and what they have been able to bring to it.

I welcome my right hon. Friend the Minister to her new role. I am sure that she will take the opportunity to reassure members of the industry who have expressed concern about the matter that the assurances and commitments that her predecessor made in Committee will apply whoever the holder of that ministerial position may be. I thank her predecessor and her Department for their continued help with the Bill.

I thank the legal deposit libraries, especially the British Library, for their continued support.

The Bill originated from the need to update and extend the current legal deposit legislation, which was passed in 1911. That legislation covers printed publications, yet more than 60,000 non-print items were published in the UK last year—a figure that will increase by a factor of four or five by 2005. Non-commercial publications, including websites, add enormously to that number. At present, there are no systematic or comprehensive arrangements for the collection and preservation of such non-print publications. Without new legislation to ensure that non-print materials are saved for future generations, the 21st century could be seen as a cultural dark age in which we failed to archive a substantial and vital part of the nation's published heritage. The Bill proposes to extend legal deposit legislation to include non-print publications such as CD-ROMs and online resources, enabling the six legal deposit libraries to ensure that those items are collected and preserved for the national archive.

Together, the six legal deposit libraries—the British Library; the national libraries of Scotland and Wales; University library, Cambridge; the Bodleian library, Oxford; and Trinity college library, Dublin—maintain a world-class national published archive that has benefited generations of researchers from industry, academia and the general public. The existing print legal deposit arrangements have enabled the British Library alone to collect, and to save in perpetuity for the nation, more than 50 million items. In the past year, the library acquired 95,286 books, 248,686 journal issues, 1,994 maps and 2,357 newspaper titles through legal deposit. Once acquired, the library stores and catalogues those items and provides facilities for researchers to access them. In that way, millions of unrelated items, which form the national published archive, are transformed into organised knowledge and secured for posterity.

The legal deposit libraries and the four main publisher trade bodies—the Association of Learned and Professional Society Publishers, the Directory and Database Publishers Association, the Periodical Publishers Association and the Publishers Association—have been working for several years to extend the national published archive. Through the joint committee on voluntary deposit, they oversee the code of voluntary deposit. The Joint Committee on Voluntary Deposits has already proved valuable in helping publishers and libraries to address implementation issues and in safeguarding the economic interests of the publishing industry. The Department for Culture, Media and Sport has given an assurance that a body in a similar role will be developed; that will be essential to maintaining a high level of consensus.

Prior to Second Reading, publishers identified several issues that were not to their satisfaction. The Department has worked closely with publishers to address their concerns, and amendments and assurances in Committee went some way towards doing that. We are confident that the amendments that we have just agreed to will go further to satisfy those concerns and to reassure publishers that we recognise and appreciate the economic environment in which they operate. I thank publishers for their continued involvement in the process.

Those who have followed this issue, and indeed the passage of the Bill, will be well aware and, I am sure, appreciative of the urgency of the need to legislate. As we all understand, the world of new media publishing is fast changing, and we are discussing a Bill whose generic nature we consider to be the best way of tackling that situation. In terms of pace, the practice of legislating for legal deposit is not far behind technological advances in publishing. A few weeks ago, the Parliament of New Zealand passed the National Library of New Zealand Act 2003. It is hoped that that Act will protect New Zealand's most precious heritage items, and at the same time allow the library to operate with credibility in the electronic environment.

That is what the Bill will do. The British Library and the other deposit libraries have shared expertise in this area and are respected across the world. The Bill is essential to them in building on their excellent work of collecting and preserving print material by extending legal deposit to non-print material. I commend the Bill to the House.

Malcolm Moss (Conservative, North East Cambridgeshire)

I congratulate the hon. Member for Ipswich (Mr. Mole) on his success in the ballot and on selecting the Bill. I thank him for acting on suggestions and proposals that were made in Committee and subsequent consultations. He has tabled 19 new amendments and two new clauses; perhaps that suggests that the measure has turned out to be more complex than originally envisaged.

Estelle Morris (Labour, Birmingham, Yardley)

Hear, hear.

Malcolm Moss (Conservative, North East Cambridgeshire)

The Minister has been dealing with it only for the past week. Perhaps it has less overall support than we were led to believe.

I congratulate the promoter on the professional way in which he has taken the measure through the various stages and on the consideration that he has shown to Opposition Members. I join him in thanking the British Library, members of the Joint Committee on Voluntary Deposit and members of the Digital Content Forum, who have assisted me to table amendments that would affect their interpretation and implementation of the measure.

I welcome the Minister to the Dispatch Box. I had the pleasure of participating in a debate on a statutory instrument with her only the other day. I reiterate the comments of my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) that she has shown her professionalism in picking up a brief and becoming expert at it in a short time. Such is her ability to cleave through the huge tomes that relate to the Bill and other measures that she has already concluded that the Bill could have done with more consultation. She reached the same conclusion as her predecessor. He soldiered on gallantly for the Government on two enormous Bills—the Communications Bill and the Licensing Bill. I suspect that the measure was parked on the top shelf during that time and that when the former Minister lifted it off the shelf, he made similar comments to those of the Minister this morning, hence his many assurances in Committee about further urgent and necessary consultation between the end of the Committee stage and Report.

However, although some consultation has taken place, it has not satisfied those who will be affected by the Bill. I believe that the Minister acknowledges that much work remains to be done to reassure those who are on the receiving end of many of the Bill's proposals. I want to communicate to the Minister and the promoter the growing feeling that the measure is being rushed through.

Hon. Members understand that the Bill is mainly enabling legislation and that flesh will be put on the bones at later stages. However, those who are staring at a potentially ruinous economic impact are rightly worried that so much, especially on the online side, is not defined. We discussed some of those matters in today's debate. People feel exposed to potential problems. Consultation needs to happen urgently and in greater depth to reassure the relevant organisations. They believe that no matter what proposals they have presented, all have been rejected except slight suggestions in amendments Nos. 17 and 22. They should be shown a little more understanding in future negotiations so that their genuine fears can be allayed.

On Second Reading, we expressed broad support for the Bill. We still think it is important to the national archive and our heritage, and that it is probably overdue. We also acknowledge the excellent work done by the Joint Committee on Voluntary Deposit, and the progress that has been made to date. Because of the enabling nature of the Bill, however, and because many questions are still hanging in the air, it is difficult for the publishing sector—particularly the Digital Content Forum—to accept the Bill as it stands. No doubt the sector will press its case in the other place. I have already warned the Minister that the Bill is not done and dusted and that a good deal of work remains to be done to ensure its passage. We want that to be done because we think the Bill is important, but it must be as right as we can get it.

Although more work is needed, we will not oppose Third Reading, and we congratulate the hon. Member for Ipswich.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The Liberal Democrats accept the principle of the Bill, although we agree with the hon. Member for North-East Cambridgeshire (Mr. Moss) that more work needs to be done—in the other place, if we send it there today.

I have followed the Bill's progress with interest—indeed, I served on the Standing Committee—but I did not intervene on Report because the issues were covered so thoroughly and ably by other Members. I congratulate the hon. Member for Ipswich (Mr. Mole) on having got this far, but I shall leave it at that because there is other important business on the agenda.

Edward Leigh (Conservative, Gainsborough)

I, too, congratulate the hon. Member for Ipswich (Mr. Mole). This is a highly complex matter, and I am glad that improvements have been made to the Bill. It is only the latest in a long line of measures dealing with legal deposit. In 1537, François I issued a decree requiring every printer in the country to deposit one copy of each book produced in his printing office. That was taken up in this country in 1610, when Sir Thomas Bodley made an agreement with the Stationers Company that became law in 1662. The Bill dates back directly to legislation passed in 1911 giving publishers and distributors in the United Kingdom and Ireland a legal obligation to deposit published material in the six legal deposit libraries.

The Bill seeks to ensure that non-print formats are included in legal deposit. More than 60,000 non-print items were published in the UK last year. The various non-print formats include DVD, CD-ROM, electronic journals and other items delivered via the web.

I hope that the Minister can reassure us about a couple of things. We all support the Bill, but I agree with my hon. Friend the Member for North-East Cambridgeshire (Mr. Moss) that it is highly complex. The publishing industry is worried about the detail, and it is important for us not to rush it through.

I am particularly worried about two aspects. First, how can we protect publishers of valuable material who publish in low volumes? A number of such publishers are concerned about illegal use of their material. In Committee the then Minister, the hon. Member for Pontypridd (Kim Howells), said that the Government would ensure that the necessary restrictions were put in place when regulations were made. I hope that the Minister can confirm that assurance.

My other concern, which has been dealt with by my hon. Friend the Member for Christchurch (Mr. Chope), relates to how online material will be deposited. I think everyone agrees that that is a complex problem. I understand that the Government will proceed stage by stage, dealing with offline material first and then, after consultation, online material. That seems a sensible way to proceed, but I should like an assurance today that the consultation process will start as soon as possible, that it will be thorough and that it will involve all interested parties.

I thank my hon. Friend the Member for North-East Cambridgeshire for addressing some of those concerns, and we hope that by the time the Bill becomes an Act it will meet all our requirements to help the publishing industry and ensure that we preserve our valuable cultural heritage. I congratulate the hon. Member for Ipswich on his Bill.

Andrew Murrison (Conservative, Westbury)

I support the Bill. This is a complex matter, and we have delved into some of those complexities today, but this skimming of the surface has revealed that a great deal more work is needed. One looks forward to seeing that work done before the Bill passes into law.

I am concerned about awareness. I highlight the example of the printed media and the fact that people are unaware of the requirement to deposit printed publications. I suspect that the same will be true of electronic media if the Bill passes into law. I am also concerned about compliance and enforcement. I particularly draw the Minister's attention to the current situation relating to printed matter. Most people are not aware of the existing law; they do not comply with it and enforcement is extremely difficult.

I have said enough. Many of us want to proceed rapidly on to the High Hedges (No. 2) Bill, so I just want to say how much I support the Bill and congratulate the hon. Member for Ipswich (Mr. Mole) on it.

Estelle Morris (Labour, Birmingham, Yardley)

I shall try to keep my remarks brief, but it is important that I put on record the assurances that I need to give the publishing industry.

I want first to congratulate my hon. Friend the Member for Ipswich (Mr. Mole) on the Bill. He has done incredibly well in guiding it through Committee. It has not been the easiest of Bills, and it has involved him in not only adopting the original principle, but being prepared to take on board comments from other members of the Committee and the industry. He has done a brilliant job and I thank him for that.

I know that my hon. Friend will want to join me in thanking the Department's officials and lawyers, who have helped us in recent weeks to end up with a Bill that is far better than when it went into Committee. I pay tribute to everyone who has been part of that process, which was a cross-party effort. I hope that eventually we will have a Bill that will stand the test of time and perform the function for which it was intended.

I want to emphasise the importance of getting this right. It is of great importance to future generations that we preserve publications of great cultural, intellectual and scientific significance. The fact that those now appear in non-print material should not stop us preserving them, but we have to ensure that we have the necessary provisions to do that as effectively as possible.

I want to give assurances about the way forward. The Bill is generic, so it has enormous potential to generate regulations, but our enthusiasm must be tempered by a recognition of the burdens that those could impose on deposit libraries and publishers. The Bill is enabling, but it makes clear the process by which regulations will need to be made. All regulations will be subject to consultation of 12 weeks or more and, as I have said, accompanied by a rigorous regulatory impact assessment that will examine the potential cost of deposit for all parties. That will be prepared in advance of an affirmative resolution in both Houses. No regulations will be produced without that adequate assessment and understanding of their implications for other people.

The Bill, as amended, assigns areas of responsibility relating to access and preservation to publishers and deposit libraries. It provides specific protection concerning copyright and liability for defamation relating to contracts under UK law. It also directs the Secretary of State to take particular note of the legislation's impact on the commercial interests of publishers and of issues of proportionality. I know that the measures will be welcomed by the House.

As noted in Committee and again today, we shall create an independent advisory panel to assist us in drawing up regulations. I reaffirm the commitment made in Committee and shall briefly describe our intentions. I hope that will reassure hon. Members that the Bill is in a fit state to move to another place.

The advisory panel will be constituted of members from the deposit libraries, the publishing industry and other stakeholders, as well as including expert members. We believe that it will be best served by an independent chair who, together with the members, will be able to guide us on drawing up the regulations. It is important that the advisory panel is up and running in advance of proposals for the first set of regulations and we shall take action to ensure that that is so.

Once the panel has been set up, it will play, and will continue to play, a key role in advising the Secretary of State on the preparation, monitoring and review of regulations. We expect that, typically, it might assist in the development of policy on new media that are eligible to be brought under the scope of the measure and would advise on how best to achieve that.

In conclusion, the Bill is important, and I repeat that my hon. Friend the Member for Ipswich, the publishers and the deposit libraries are all to be commended for their work and their engagement during the Bill's passage through the Commons. The legislation will, no doubt, be implemented slowly, incrementally and, above all, selectively, but it offers the possibility of enhancing the wealth of our national repositories to the ultimate benefit of us all. Against that background, I commend the Bill to the House.

Chris Mole (Labour, Ipswich)

With the leave of the House, I shall do no more than thank my colleagues for their comments and for the opinions expressed during this interesting debate. I single out my right hon. Friend the Minister for her quick grasp of the subject and the hon. Member for North-East Cambridgeshire (Mr. Moss) for his constructive approach on behalf of the official Opposition.

I commend the Bill to the House and hope that it has a trouble-free passage in the other place.

Question put and agreed to.

Bill accordingly read the Third time, and passed.