HC Deb 04 July 2003 vol 408 cc679-96

'(1) In the case of a work published on line which is of a description prescribed under section 1(4), this Act applies only if subsection (2) or (3) applies.

(2) This subsection applies if the work is first published from the United Kingdom by—

  1. (a) a British citizen,
  2. (b) a natural person resident in the United Kingdom, or
  3. (c) a body (including a partnership) using a fixed establishment in the United Kingdom.

(3) 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.

(4) The Secretary of State may be regulations amend subsection (2) or (3).".—[Mr. Moss.]

Brought up, and read the First time.

Mr. Moss

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

Mr. Deputy Speaker (Sir Michael Lord)

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—

  1. (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,
  2. (b) its publication on the internet, or a person publishing it there, is connected with the United Kingdom in a manner so prescribed, and
  3. (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—

  1. (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,
  2. (b) its publication on the internet, or a person publishing it there, is connected with the United Kingdom in a manner so prescribed, and
  3. (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'.

Mr. Moss

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.

Mr. Christopher Chope (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.

Mr. Eric Forth (Bromley and Chislehurst)

He was being rude.

Mr. Chope

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.

Mr. Forth

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.

Mr. Chope

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.

Mr. Forth

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

Mr. Chope

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.

Mr. Forth

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.

Mr. Chope

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.

Mr. Forth

Good guess.

Mr. Chope

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 noncommercial 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.

Mr. Forth

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?

Mr. Chope

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.

12.30 pm
Mr. Forth

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?

Mr. Chope

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.

Mr. Mole

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.

Mr. Chope

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?

Mr. Mole

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.

Mr. Chope

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".

Mr. Mole

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.

Mr. Forth

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.

12.45 pm

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.

Mr. Chope

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?

Mr. Forth

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.

Mr. Simon Thomas (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.

Dr. Andrew Murrison (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).

Mr. Forth

Certainly not.

Dr. Murrison

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

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.

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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.

Mr. Moss

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

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, how ever 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.

Mr. Forth

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—

Mr. Simon Thomas


Mr. Forth

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

That very thought crossed my mind earlier this week.

Mr. Chope

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

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.

Mr. Moss


Estelle Morris

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

Mr. Moss

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

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.

Mr. Moss

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.

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