HC Deb 04 July 2003 vol 408 cc671-8

"(1) The delivery by a person, pursuant to section 1, of a copy of a work is to be taken—

  1. (a) not to breach any contract relating to any part of the work to which that person is a party, and
  2. (b) not to infringe copyright, publication right or database right in relation to any part of the work or any patent.

(2) Subsection (1) applies to the delivery, pursuant to regulations under section 6, of a copy of a computer program or material within section 6(2)(b) as it applies to the delivery of a copy of a work pursuant to section 1.".—[Mr. Mole.]

Brought up, and read the First time.

11.43 am
Mr. Chris Mole (Ipswich)

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

Madam Deputy Speaker (Sylvia Heal)

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—

  1. (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
  2. (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 rot 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—

  1. (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
  2. (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—

  1. (a) the work is of a description prescribed by regulations under this subsection,
  2. (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
  3. (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—

  1. (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
  2. (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—

  1. (a) "relevant person" has the same meaning as in section 7;
  2. (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);
  3. (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—

  1. (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
  2. (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—

  1. (a) no person other than the library is as a result of the accessing of that copy, and
  2. (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);".

Mr. Mole

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".

Mr. Malcolm Moss (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.

12 noon

The Minister for the Arts (Estelle Morris)

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.

Mr. Moss

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

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.

Mr. Mole

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.

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