§ 12.19 p.m.
§ Lord Tope
My Lords, I beg to move that this Bill be now read a second time. It gives me great pleasure to do so. If enacted, the Bill will benefit the nation for generations to come. I am pleased to play my part in promoting it.
The purpose of the Bill is to extend the existing system of legal deposit. Under the system a copy of every printed book published in the United Kingdom is deposited in the British Library and, on request, to five other deposit libraries. The Bill extends that principle to the non-print world. By this means, it will secure the role of the national archive into the future, allowing it to reflect more fully the changing world we live in today. As we are all too aware, the intellectual and commercial output of this nation is no longer confined to the printed page. It is important that legislation reflects that.
562 I shall explain the Bill briefly, although it is slightly longer than my noble friend's Bill, which we previously debated. Clause 1 imposes a duty on publishers to deposit, stating that non-print publications will be required to be deposited only when regulations have been made relating to them. Printed works will continue to be deposited as they are now. The Bill does not apply to sound or film, or to work where film or sound are the primary purpose, although, appropriately, it allows multimedia to be deposited.
Clause 2 considers the issue of duplication. It spells out what happens when a work is published in more than one medium and on more than one occasion. Works judged to be "substantially the same" as works already published and deposited in the UK will not need to be deposited again. It will be up to the Secretary of State for Culture, Media and Sport to decide what constitutes "substantially the same" and in which medium publications should be deposited.
Clause 3 relates to enforcement, detailing the measures that will be in place should publishers act in transgression of their duties under the Bill. Although I do not wish to suggest that publishers may not meet their obligations to deposit—especially as those in the non-print area can be drawn up only after consultation and consideration of the impact on publishers, as I shall explain later—the Bill needs to provide a mechanism for enforcement should there be a problem.
In such cases, deposit libraries may apply to the county court, or to the sheriff's court in Scotland, for an order requiring deposit. In instances where an order is not deemed appropriate, the court is able to make an order requiring the publisher to make a payment equivalent to the cost of making good the failure, which may represent the cost of obtaining the material elsewhere, or less.
Clauses 4 and 5 cover the deposit of printed material only. It was always the intention to preserve the print system that has served us well. The clauses restate the relevant provisions of the Copyright Act 1911. The Bill entitles the British Library to a copy of every work published in print in the United Kingdom. It specifies when a work must be deposited and the quality of copies to be deposited. There is also an obligation on the British Library to give a written receipt.
Clause 5 enables the other deposit libraries to request a copy of any printed publication published in the United Kingdom and states the timing of deposit and the quality of work to be deposited. Clause 6 is the first clause that wholly addresses the issue of non-print publications. The Bill does not, in itself, require the deposit of non-print material. Instead, it sets out powers that the Secretary of State for Culture, Media and Sport can use in making regulations. It is these regulations which will set out publishers' duties to deposit.
It is felt that, given the constantly evolving technology, as well as the complex nature of the non-print publishing world, regulations would offer the flexibility required to avoid the .need constantly to revisit the legislation, while providing an enduring and 563 balanced structure. The clause sets out the types of regulations that the Secretary of State can make in relation to the deposit of non-print material. Subsection (1) gives the Secretary of State powers to make regulations regarding the duty to deposit non-print material.
Subsection (2) spells out what may be included in the regulations: namely, the deposit libraries, which will be entitled to the deposit of the particular class of material and the time at which it must be deposited, thereby allowing sales thresholds to be met before deposit is required; the software required to reserve and access the publication may also be deposited, along with the publication; the length of time allowable for deposit; the allowance for a deposit by electronic means; the specification of which version should be deposited when a work is published in different versions; the specification of which format should be deposited when the work is published in more than one format; the provision of what constitutes a UK publication; and the specification of the medium in which a work published online should be deposited.
Clause 7 sets out the restrictions on what can be done with deposited material once it is held by the deposit libraries. Subsection (1) clarifies that only prescribed activities may be undertaken with legally deposited material. Subsection (2) lists the eligible activities, which would have clear limitations. Deposit libraries would be able to undertake these activities only after regulations have been made.
Under subsection (4) regulations can be made to determine the purposes for which material may be used or copied; the time at which the reader can first access legally deposited material, thereby enabling embargoes to be imposed on the material; the description of the readers who can access the deposited material; and the limitations on the numbers of readers who can access the material at any one time.
Clause 7 addresses how the provisions will be enforced and how deposit libraries will be brought into account if they contravene them. It also allows for the Faculty of Advocates in Scotland to continue to act as a legal deposit library for the purposes of legal documents published in Scotland.
Clause 8 states that activities authorised by regulations made under Clause 7 will not infringe copyright or database right. It also gives power to the Secretary of State for Trade and Industry to make regulations that would limit the application of any exceptions to copyright to deposited material where, for example, such application gives rise to access that is more generous than that permitted for the same material that other libraries have had to purchase under a contract.
Clause 9 relates to issues of contract that have emerged as a concern for publishers. It ensures that any publisher complying with the duty to deposit, as laid down in Clause 1, will not be in breach of any UK contract nor infringe any copyright, database right or patent right existing in the UK.
564 Clause 10 relates specifically to areas of liability and sets up the means to address liability for defamation, in particular. It sets up differing responsibilities in relation to defamatory material and resolves the issues in relation to publishers and deposit libraries. It states that deposit libraries will be liable for defamation only in cases relating to deposited material accessed in the libraries when they know, or ought to know, that the material is defamatory and have had sufficient opportunity to prevent its use.
The clause extends similar protection to the publishers. They will he liable only for material that they have deposited and which is accessed in the libraries when they are aware, or ought to be aware, that it is defamatory and have failed to inform the libraries of that fact. Each of these provisions relates not only to deposited material, but also to any software deposited along with the published work.
Subsection (5) makes provision for deposit libraries collecting direct from the Internet, or "web-harvesting", as it is colloquially described in the context of the Bill. It states that where deposit libraries copy from the Internet, in accordance with the conditions set out in this clause, the restrictions and exemptions covered in Clauses 7 and 8 and subsection (6) of Clause 10, will apply. Regulations relating to web-harvesting will describe which works can be copied and the conditions imposed upon copying. By that means the Bill provides options for acquiring works either by deposit or by harvesting. Both publishers and deposit libraries are content for these options to co-exist.
Subsection (6) of Clause 10 states that only the deposit libraries can be liable for defamation arising from work that is copied. They will be liable only in the same circumstances as for material that is deposited. To ensure that publishers do not incur any liabilities in addition to defamation as a result of deposit, subsection (8) enables the Secretary of State to make specific regulations to extend exemptions to other liabilities.
Clause 11 elucidates the general conditions for making regulations under the Bill and procedure. It states that these regulations can be made for different provisions for different purposes, different media, different descriptions of work, different deposit libraries and areas, and can allow for regulations to apply only in some cases or be subject to exceptions. Regulations under the Bill can also be made for classes of material to be deposited and particular classes can be subject to specified exemptions.
Subsection (2) imposes a statutory obligation to consult. No regulations under the Bill can be made unless the Secretary of State has consulted the deposit libraries and the publishers that will be affected by the regulations under discussion. Subsection (3) states that there will be no retrospective requirement to deposit. Regulations made under the Bill requiring deposit will apply only to publications published after regulations are made.
Subsections (4) and (5) create an obligation to consider specifically the economic impact of regulations made under the Bill. They also make it 565 clear that no regulations under the Bill may be made where the cost of deposit incurred by the publishers is disproportionate to the benefit to the nation of deposit. Regulations under the Bill will also not be made where the interests of the publishers are unreasonably prejudiced through deposit. Subsection (6) confirms that all regulations made as a result of the Bill are made by an affirmative statutory instrument laid and debated before both Houses.
I feel that the measures laid down in this clause offer sufficient and clear protection in response to those who may feel apprehensive, as I often do, about generic legislation and the concern that it encourages government to regulate with impunity.
Clause 12 considers devolved matters. Under the Bill, no regulations can be made without the consent of the National Assembly for Wales or Scottish Ministers when regulations are being made which do not confer or remove an entitlement on either of those devolved administrations. In addition, the National Assembly for Wales and Scottish Ministers will be consulted on all other regulations made.
Special provision has been made in Clause 13 to take account of imposing a duty on publishers to deposit in a library outside the United Kingdom. Under the clause, publishers will not be required to deposit any non-print publication at Trinity College, Dublin, unless there are protections in place there that are at least equal to the protections that exist for deposited material in the United Kingdom. Clauses 14, 15 and 16 are technical provisions and I am sure that noble Lords will be pleased if I do not spell them out in detail.
This Bill presents a unique opportunity. Its implementation will no doubt be complex and incremental, but its impact will be profound, harnessing the national memory for the benefit of future generations. I commend the Bill to the House.
§ Moved, That the Bill be now read a second time.—(Lord Tope.)
§ 12.34 p.m.
§ Lord Eatwell
My Lords, I begin by declaring a very direct interest in this Bill. I am chairman of the British Library, an institution that will be one of the direct beneficiaries of the passage of this measure. Indeed, the British Library has taken the lead for the legal deposit libraries in the thorough negotiations that have produced the measure before us today.
Perhaps I may also pay tribute to my honourable friend Chris Mole, the Member for Ipswich, who so ably guided this measure through another place, and I thank the noble Lord, Lord Tope, for introducing it in your Lordships' House.
The concept of legal deposit is fundamental to the creation of the national archive, and the national archive is a cornerstone of the social and economic life of the nation. For the national archive is not a museum. It is the memory of the nation—the core of its information system—and an indispensable building block of the modern knowledge economy. It is 566 therefore a matter of vital national interest that the collections should be comprehensive and preserved in perpetuity.
But today our national collections are being compromised by the development of new methods of publication, notably, of course, electronic publication; methods that lie outside the terms of the great Copyright Act 1911. That Act, as we have heard from the noble Lord, Lord Tope, referred only to publication in printed form. Without this Bill a substantial proportion of non-print published material will inevitably be lost. The great advances of modern information technology will, paradoxically, have led to the creation of an aching void at the heart of the nation's information system.
For the past three years, that void has been partially filled by a voluntary system of deposit for non-print publications established by the publishers and the legal deposit libraries. The scheme has been reasonably successful. None the less, it is estimated that over half of all online publications and around one quarter of so-called hand-held electronic publications, such as CD-ROMs and DVDs, are not sent to the legal deposit libraries and are therefore in danger of being lost for ever. In addition, the web has not been systematically archived thus far and a significant amount of valuable content has already been lost.
That is why the working party established in 1998 by the Department for Culture, Media and Sport to consider the question of non-printed publications concluded that,only a system of legal deposit will be adequate to secure a comprehensive national published archive".The then Secretary of State, Chris Smith, agreed. He said that,the report makes a convincing case for moving towards legislation for the legal deposit of non-print publications on the basis of minimum burden on publishers and minimum loss of sales".It is around that latter phrase that debates about copyright and legal deposit have, from the very beginning, always swirled. How are the legitimate commercial interests of the publishers to be made consistent with the vital national interest in a comprehensive archive?
From the beginning, the concept of copyright first appeared as a rule of the Stationers' Company, formulated in 1556 in the reign of Queen Mary, requiring members to present to the wardens a copy of every publication. This rule infuriated the publishers. A barely satirical critique of the measure referred to it as,an admirable scheme, this new Spanish-English press inquisition. Queen Mary burnt the authors and the Stationers' Company burnt the books".I am glad to report that the negotiations between the deposit libraries and the publishers over the Bill did not generate such fiery rhetoric.
Yet the controversy remains. The grant of copyright is a privilege in return for which the publisher agrees to legal deposit. But there is no doubt that the objective of the British Library to collect comprehensively and 567 to make the world's knowledge readily accessible to all may sometimes be at odds with the publisher's goal of securing the full value of publication.
The libraries and the publishers have worked hard to resolve these issues, and have laid a solid foundation for the success of this Bill. For example, they jointly commissioned and signed off the research study that was the principal input to the regulatory impact assessment. And, reflecting the extensive potential applicability of the measure, the dialogue with the publishers has been broadened during the past six months to include a wide range of online publishers, represented by the Digital Content Forum. I am delighted to report that a very good working relationship has been established between the libraries and the Digital Content Forum, building on the collaborative spirit of the earlier voluntary scheme.
The practical success of the Bill will depend upon a partnership between the libraries and the publishers, working to safeguard a comprehensive national archive while being sensitive to legitimate economic interests. Working together, the libraries and the publishers are in the best position to advise the Government on the shaping of the regulations and on the pace of implementation. For in this complex and ever-changing world, it is impossible to solve all the issues in primary legislation and that is why the subsequent regulations will be so important.
That is also why the advisory panel that the Government propose to establish is so important. The libraries and the publishers are already developing a shared understanding of the optimal membership and terms of reference of this advisory panel and are keen to assist the Government in setting it up. I hope that the Minister will be able to give an assurance that this will be done quickly. It is the institutional key to success.
The Bill establishes a principle for posterity—that this House commits itself to maintaining the integrity of the national archive. On this—I was going to say "sunny" but it is not quite so sunny—September morning, in supporting this short Bill, the House will be securing a crucial component of Britain's future.
§ 12.41 p.m.
§ Lord Brooke of Sutton Mandeville
My Lords, it is a pleasure to follow the noble Lord, Lord Eatwell, and to thank him publicly, as I have already done privately, for alerting me during the Recess to the imminence, the timeousness arid the importance of the Bill.
I welcome and support the Bill but, before I speak to it, I must declare an unusual non-financial interest. When I served as Secretary of State for the Department of National Heritage, the predecessor department of DCMS, I was arraigned before the Commons Select Committee on National Heritage, notably chaired, then as now, by Mr Gerald Kaufman MP, on the subject of the construction of the British Library which, to put it neutrally, had been a little dilatory. Towards the end of my examination Mr Kaufman said. not unreasonably, that someone must be responsible for these delays and that I should name 568 the guilty party. Although I had only taken office 70 per cent of the way through the elapsed time the construction eventually took, I knew that any answer which named anyone other than myself would simply prolong the examination, no doubt in terms of rising exasperation, and so I replied that the chairman would know that any Secretary of State should always carry the responsibility and that I was content unhesitatingly to do so. This answer, as I had surmised, curtailed the length of subsequent proceedings.
It was some time later that I read the book that the noble Lord, Lord Barnett, wrote about his time as Chief Secretary to the Treasury in an administration in which Mr Kaufman had also served. In a passage about his negotiations, concluded in 1978, with the noble Baroness, Lady Williams of Crosby, as she then was not, about the arrangements for building the British Library, the noble Lord, Lord Barnett. said that the Treasury had so buttoned-up the details that if the British economy suffered even the mildest setback thereafter it would be a miracle if the British Library was completed before the end of the century. I left office in 1994, but the library about which I had been arraigned was completed before the end of the century and was, I think, opened in 1998.
Thus by a marginal exercise in moral courage in asserting responsibility before Mr Kaufman's committee, I had by the same token acquired the credit four years later for a miracle in the eyes of the noble Lord, Lord Barnett. By such stumbling footsteps is history made, but it has necessarily given me vicariously a disproportionate emotional interest in the welfare of the British Library, hence my support for the Bill.
The Minister responding for the Government on the Bill, the noble Lord, Lord Evans of Temple Guiting, has reminded me that I was also responsible while in office for conceiving the Library and Information Commission, of which he in turn was the first chairman. Let it not be said that the old Department of National Heritage was partisan in its appointments. At any rate, the Library and Information Commission, and thus the Minister, can in turn claim intellectual property rights in the Bill before us today.
I shall not rehearse in detail the history of legal deposit libraries in which the developments enshrined in the Bill are but the latest step, as the noble Lord, Lord Eatwell, said. Suffice it to say that three centuries passed between Sir Thomas Bodley's initiatives and agreements with the Stationers' Company in 1610 and the Copyright Act 1911, but there was further intervening legislation in the 18th century and three successive legislative changes in the first half of the 19th century. It is admirable that further change should be envisaged so early in the new millennium.
The noble Lord, Lord Tope, explained with admirable comprehensiveness the purpose of the Bill. I have only two things to add, one in commendation and one of inquiry. My commendation is directed towards both publishers and the DCMS. I can understand the apprehensions of publishers about the new obligations inherent in the Bill and I congratulate 569 them on the way they have responded to the demands nurtured by new technology. I congratulate the DCMS likewise, not only on having wooed the publishers into their present co-operation but also on having framed the Bill in so genuinely consultative a mode and on having avoided an unduly prescriptive text when technology is moving so quickly. I hope that these attitudes on both sides, including, of course, the deposit libraries, will be maintained when the Bill becomes an Act, as I am confident it will.
My query is to the Minister. I in no way resile from my just stated praise for both parties—indeed, all parties—but the Minister will be particularly aware of the passage of time since the inception of the Library and Information Commission and the Second Reading of the Bill within your Lordships' House. I am conscious, as the noble Lord, Lord Eatwell, said, that a voluntary code has been in existence and that a code of practice was introduced as an interim measure. But I am also conscious that 60,000 non-print items were published in the United Kingdom last year, and that it is thought that this figure could reach as much as 300,000 by 2005. My query to the Minister—which does not, he will be reassured to hear, require an answer today—is how large a cultural deficit will we have built up in the legal deposit libraries before the Bill becomes law in terms of the early stages of the technological developments to which the noble Lord. Lord Eatwell, referred?
In the meantime, I hope fervently that this Bill can—and, in particular, unamended—reach the statute book before this parliamentary Session is concluded.
§ 12.47 p.m.
§ Lord Strabolgi
My Lords, I am sure that we are grateful to the noble Lord, Lord Tope, for so ably introducing the Bill and taking us through the clauses. It was, I understand, supported by all parties in another place.
As has been said, the 1911 Act does not cover non-print publications such as CD-ROMs and online resources. How could it? These had not been invented at that time. These are covered by a voluntary system, which I gather has been working well up to a point. But it is not infallible and some non-print material is being lost to the national archive, as my noble friend Lord Eatwell said.
As the noble Lord, Lord Brooke, said, some 60,000 non-print items were published last year and this figure is predicted to grow to 300,000 items in about two years' time. So the matter is therefore urgent.
Following the government Green Paper, a working group was set up by Ministers which concluded, in July 1998, that only a system of legal deposit would secure a comprehensive national published archive.
There is a further reason why I support the Bill, to which I should like to speak briefly. These non-print publications will have a further advantage, which will increase during the 21st century. This is because of the short life of modern paper, particularly newsprint. Paper for books used to be made, as your Lordships 570 will know, from rags. Now it is produced from wood pulp. A 17th-century book, if it has been cared for, is as fresh and strong as when it was first printed. In contrast, some paperbacks published only 50 years ago are literally crumbling to pieces. We all know what happens to a newspaper cutting after several years—it goes brown and becomes increasingly unreadable. This must be a great cause for worry to librarians, particularly the librarian of the newspaper library. The increase in non-print publications is therefore to be welcomed, as clearly the huge amount of publications today prevents us from going back to rag paper.
For all these reasons, I support the Bill and I hope your Lordships will give it a Second Reading.
§ 12.50 p.m.
§ Lord Quinton
My Lords, I had better declare a very marginal interest: I receive a very modest—but very welcome—pension from the British Library, where I held the same position as the noble Lord, Lord Eatwell, a number of years ago.
I should like to mention three things, the first of which is cost. When I was first involved in the British Library, I had the belief that the legal deposit system was an enormous advantage. It was not so much that it regularised a flow of new publications into the library, but that it saved it an enormous amount of money. Well, by individual private budget standards, it did, but perhaps not all that much.
About 50,000 books a year which get published fall under the heading of legally despositable. If we take them at a wholesale price—it would be ridiculous to put on postage, packing and insurance—of half their cover price, it comes to about half a million pounds a year. That is a nice fat sum from some points of view but from the point of view of an institution whose annual turnover is larger than £100 million, it is welcome but not a reason for enormous excitement. It is not, therefore, primarily the financial advantage that is significant in the institution of legal deposit.
The noble Lord, Lord Eatwell, mentioned the worries of publishers about the possible loss accruing to them from extending legal deposit, but it is not clear to me what the loss would be. There would the actual loss of sale of the items deposited, which would be trivial in relation to the number of volumes or copies of the same thing that publishers will dish out to persons who might be interested and give it a fair wind, if it is the sort of thing that will get reviewed. Any reproduction rights can be retained and need not be forfeited. I am not clear what the big financial problem is for publishers, but that may be rather slow witted of me.
We need to consider what sort of material will be covered by the Secretary of State's regulations. There is an enormous quantity of non-printed stuff floating about. Perhaps the word "publication" is the relevant factor. There will have to be some selectivity, as some of this stuff is of no conceivable interest. It is notable that deposit libraries other than the British Library merely get books they request—they do not have the whole lot sent in in trucks. So selection already 571 operates in the other legal deposit libraries and, with increasing quantities, it seems inevitable that something like selection ought to occur in the British Library.
Then another point comes up: what will be the essential type of content of the material that the Secretary of State will include in the scope of the legislation? The first thing that occurs to me is reference books. They seem to be uniquely suited to this mode of publication, much more so than works of imaginative literature, which are individually read over protracted periods in a comfortably seated position, rather than by sitting at a desk with one's eyes stuck to a terminal. For reference purposes, non-print publication is absolutely wonderful. A large quantity of reference material is published. I am thinking particularly of bibliographies in various learned fields which need constantly to he updated and therefore involve an enormous amount of superfluous cost. They could be updated very quickly in non-print form.
The production costs of CDs are very low. We have been hearing a lot of news lately about the menace to music recording companies of brisk, technologically advanced adolescents downloading the latest hits on a CD blank which they can get for 5p or something, thus avoiding the music stores' cost of £7.99, or whatever they would have to pay. The physical cost of constructing a CD-ROM is very small as far as each unit is concerned. That is why I am not too worried about the direct loss to the publishers of saleable stuff. It seems incomparably less than what they incur by sending around in review copies, presents, things for the author's aunt and goodness knows what. It is a quite trivial, marginal element in their output, except in the case of some amazing object, of which there are only 10 copies. I do not know what one does about that, but I do not think it is a terribly common sort of publication.
I was reflecting earlier on the cost benefit to the library of legal deposit, and it is really the opposite of cost benefit—it is a cost disadvantage to take everything. It is like getting married. It is quite easy to go through, in the old-fashioned style—there is the cost of an engagement ring and a few bunches of flowers. Then there you are, married, and that is when the trouble begins. That is when the real monetary haemorrhage starts.
It is similar with a library—the actual acquisition of a book is a trivial part of the expenditure. Next comes the entering or creating of a professional, high toned bibliographic record. That would probably be more than the shop cost of the book. Space has to be created for it. That space has to be adequately heated or chilled; it must be neither too damp nor too dry, although I do not know whether it matters if it is dry. So the atmosphere in the space must be controlled. All this is particularly expensive with books.
It might seem that if an enormous amount of non-print material comes into the British Library there will be a vast increase in such expenses, but this is where the good fairy technology comes into play. The storage of non-print material, while still creating a bibliographic 572 problem, does not provide the same problems as the storage of books. As the noble Lord, Lord Strabolgi said, there is not the problem of the thing falling to pieces, like one's paperback J.B. Priestley, bought in 1938.
We are at an important point in the history of human communication. It started with language, which made us human. Then there was writing, which made us civilised, and then came print, which made us clever, so to speak. No, that is not quite right—it was writing that made us clever. There was no mathematics until there was writing, except "more than those, less than that". For anything more complicated, mathematics has to require writing, and all sciences pretty well require mathematics at various levels of sophistication. So the whole area of learning requires writing. A lot of the humanities were always conducted orally—Homer was an oral poet—until the material was finally written down, some years after the poet's death.
As I said, language makes us human and writing makes us civilised. Fortunately, since we had alphabetic writing in this part of the world, the coming of print ensured that writing became universally available. The acquisition of literacy was not a special, high-toned skill, as it was in the middle ages for various reasons, and as it remained until very recent times in China. It meant that mass literacy could develop, with all the enhancement of human capacity that followed.
I am not a prophet, and I have no idea what the effects of the new revolution in storing communicable thought will be, but it seems pretty obvious that they will be very important. It is essential that our national archive should contain them, so I hope no one feels that the Bill should be resisted.
§ 1 p.m.
§ Lord Prys-Davies
My Lords, it is a great pleasure to follow the noble Lord, Lord Quinton. I, too, wish to support strongly this important Bill, for the reasons that other noble Lords have given, and especially for the reasons given by my noble friend Lord Eatwell. The House, and indeed future generations, will be grateful to the noble Lord, Lord Tope, and my friend Mr Chris Mole, the honourable Member for Ipswich, for their contributions, if the Bill is enacted, as I trust that it will be.
The Bill has been prepared against the historical background spelt out by my noble friend Lord Eat well and which I shall not repeat, and the sheer volume and pace of change in non-print material, of which we have heard so much. Given the pace of change and the difficulty of changing a statute once it is on the book, I believe that the Bill's approach to the problem is appropriate. It is an enabling Bill that empowers the Secretary of State to make regulations to meet the changing conditions, subject to the consultation before they are made, and subject to the affirmative resolution of both Houses.
I have read the debates on the Bill in another place, and it was enormously improved in the course of those debates. After reading those debates, it is clear that 573 there is a high degree of political consensus on the need for this important Bill. I am aware that some publishers, especially those with contracts with international business, at one stage expressed certain reservations about some aspects of the Bill. I also know that, at the Third Reading on 4th July, the Secretary of State took account of those concerns and gave important undertakings about the consultations before the regulations are made and the requirement for a vigorous impact assessment, which will examine the potential costs of a deposit for all parties. She also confirmed that an independent advisory panel would be set up to assist in drawing up the regulations. I hope that those important assurances will have reassured the industry.
I was particularly interested in and pleased with the speech of the noble Lord, Lord Brooke, who is a member of the Select Committee on Delegated Powers. I have read the committee's report and I note that it does not recommend any specific amendment be made to the Bill, although it invites the Government to give enlightenment on one or two matters. When my noble friend the Minister speaks, I would be interested to learn whether he is able to offer some words of comfort on those issues.
There would be a serious problem if the Bill were to be amended in your Lordships' House. The department's memorandum to the Delegated Powers Select Committee informed the committee that this Private Member's Bill would not be allocated further time in the House of Commons. Therefore, if the Bill were amended in your Lordships' House, the practical effect would be to defeat the Bill. Faced with that consequence, your Lordships' House has a very heavy burden of responsibility indeed. The great importance of the Bill and its high degree of support suggests strongly that noble Lords should not put the Bill at risk of failing to pass into law.
Finally, I pay tribute to the staff of the six deposit libraries for their contribution.
§ 1.5 p.m.
§ Baroness Buscombe
My Lords, I congratulate the noble Lord, Lord Tope, on introducing this important Bill in your Lordships' House. I also thank the Minister for some very helpful discussions prior to this debate, and the British Library, and in particular its chairman, the noble Lord, Lord Eatwell, for affording me a very useful meeting to introduce me to some of the key aspects of the Bill. I also thank the Director of the British Library, Dr Clive Field, for a tour of the library. It served as an inspiring reminder of one of those, shall I say uncommon, opportunities to thank the French, and in particular the vision of Francois I who, in 1537, issued a decree requiring every printer in France to deposit one copy of each book produced in his printing office—known as the Ordonnance de Montpellier.
Noble Lords were reminded today by my noble friend Lord Brooke of Sutton Mandeville that a legal deposit mechanism was put in place in Great Britain in 574 1610, when Sir Thomas Bodley made an agreement with the Stationer's Company. Over the years, and in various countries, legal deposit has served different purposes: apart from providing the monarch with a well equipped library, legal deposit has also been connected with censorship, being an effective political instrument, as it has given rulers the opportunity to control and prevent the dissemination of publications representing a differing moral or political opinion.
Today, the primary purpose of legal deposit is to preserve the nation's cultural heritage. However, it can also be seen in a broader perspective of freedom of information. Arguably, without free access to what has been published, the individual's right to form a free and independent opinion on a subject is limited and incomplete.
As the noble Lord, Lord Eatwell, warned us today, the British Library estimates that well over 50 per cent of electronically delivered publications and around 25 per cent of handheld publications such as CD-ROMs are not being received by the legal deposit libraries. This Bill is to ensure that non-print formats are included within legal deposit, thus preserving our intellectual heritage and allowing businesses and education to benefit from the widest possible collections of research material both now and in the future. I hear what my noble friend Lord Quinton says with regard to the possible need for some form of selection; perhaps, as he suggested, the word "publication" could assist in that regard.
The Bill builds on the good work of the voluntary scheme administered by the Joint Committee on Voluntary Deposit set up in 2000. Consulted groups, and we on these Benches, agree that new legislation should be generic to ensure that new formats and information carriers can be included by order as they become widely used. The Bill has been significantly improved during its progress through the Commons, but there are still areas that are cause for concern. It becomes increasingly clear as one looks into the whole subject that the needs of the digital publishing world are sometimes quite distinct and complex, in which case what may have served, and will serve in the future, the printed word will not necessarily apply to digital publishing. However, while there are concerns, we on these Benches are keen to do all we can to ensure that the Bill becomes law in this Session.
The publishers have expressed frustration about the hasty compilation of the Bill. There is a feeling that, given they do not want the Bill to fall and we are nearing the end of this parliamentary Session, the publishers must take the status quo or leave it. That is not, I think we would all agree, satisfactory. Indeed, I will highlight some concerns which I understand the Department for Culture, Media and Sport has sought to overcome with the publishing industry since the Bill left another place. I am also very aware that discussions have now taken place with the department and Ministers right up until yesterday. So it is very much hoped that the Minister will be able today to give many of the assurances that are sought.
575 For example, with regard to the potential for breach of copyright of highly valuable material deposited in the libraries by publishers, the publishing industry is seeking a guarantee that adequate measures will be put in place to safeguard their publications from piracy and copyright infringement. Concerns also remain about definitions of "publishers" and, in particular, the definition of "UK publication" in relation to online publishing. Those and other definitions are not in the Bill and will be dealt with in the fine print of regulations. Can the Minister reassure us today that there will be consultation with all interested parties on these matters and others subject to secondary legislation?
On a separate note, it is hoped that the Government can also give reassurances in relation to the cost of compliance for low volumes of published product; that is, publications with a narrow commercial window. It was the honourable Member for South Derbyshire, Mr Todd MP, who said in another place,those who publish very low volumes of a product have to give a copy to a deposit library, which makes it available relatively freely, they will find their market completely destroyed".—[Official Report, Commons Standing Committee F, 4/6/03; cols. 7–8.]I understand that this issue is as important for libraries as for publishers.
Moving on to the proposal for a technical advisory committee, this was welcomed in another place. The Minister did not believe that it should be a part of the primary legislation but reaffirmed a commitment to establish such a committee. Will the Minister confirm today whether there is a clear timetable for setting that proposal in motion, and how will the committee sit with the Joint Committee on Voluntary Deposits? Will the former supersede the latter, and what will be the relationship between the Secretary of State and the advisory panel?
There is no doubt that the quality of the advisory committee and its chairman will be crucial. I have already referred to some of the areas pertinent to online publishing, and I believe that it will be important to ensure that the committee and most particularly its chairman understand electronic publishing, are visionary and are able to help solve some of the complex problems that are bound to arise in the future.
I turn to a separate matter: contracts with overseas suppliers. A new clause added at Report stage in another place covered a publisher being in breach of contract with a third party for depositing material with the legal libraries but does not seem to offer protection for contracts with overseas suppliers under the laws of other countries. This is a complex issue and we understand that recent discussions have taken place between the DCMS and the digital publishing community on this matter. Can the Minister therefore confirm today, for the avoidance of doubt, that any consultation with government and the publishing industry prior to regulations being made would give due regard to potential depositors' overseas contracts and, further, that regulations will not be made if 576 depositing publications would seriously prejudice the economic interests of the publishers in relation to these contracts?
Finally, with regard to liability for defamation, some concern remains that new Clause 2 does not go far enough in that other categories of liability need to be addressed. Will the Minister therefore make clear that it is not intended that publishers should incur additional liability by virtue of access in legal deposit libraries? We understand that Clause 10(8) allows the possibility of making regulations which extend protections beyond those relating to defamation in the Bill. I note that the Select Committee on Delegated Powers and Regulatory Reform, in its 24th Report, dated 10th September 2003, states:We suggest the House may wish to invite the Government to provide a fuller account of why the provision in clause 10(8) is needed and of the circumstances in which the power might be used".Well, my Lords, I am doing just that.
In conclusion, it is important to stress that this Bill is enabling legislation. The Government remain, alongside Parliament, as the conduit for these important measures, while leaving the implementation of their measures to libraries and publishers, working together to ensure the safe deposit of material for the future, thereby affording the proper protection of our publishing heritage, which, as the noble Lord, Lord Eatwell, said, is the memory of the nation.
§ 1.15 p.m.
§ Lord Evans of Temple Guiting
My Lords, as my noble friend Lord McIntosh makes his way to Italy for a conference, it is a great pleasure for me to be here to state the Government's view on this very important Bill. I join everyone else in congratulating the noble Lord, Lord Tope, on introducing the Bill to the House. Until recently I was a book publisher, and in the past few years I spent a great deal of time grappling with the problems and indeed tensions raised and implicit in this Bill. In addition, as the noble Lord, Lord Brooke, kindly mentioned, I was the first chairman of the Library and Information Commission—his brainchild, on which I should like retrospectively to thank him. That commission also spent time discussing these complicated but vitally important issues.
I should like today to put on record in this House the assurances that the Government wish to give the publishing industry and the deposit libraries concerning this Bill. The Bill's passage through the other place involved intensive debate. The Government have listened and, as noble Lords have heard, made very many amendments. The Bill is now a more effective and robust piece of legislation. The Government are grateful for the active involvement of publishers and deposit libraries. Government departments, publishers and deposit libraries have worked hard together to forge a Bill that can accomplish what was intended for it.
As has been said, the Bill is enabling legislation. However, that does not mean that it is unduly permissive. Assurances have been given in the other 577 place, and the Bill now includes clauses that ensure a balance of responsibilities and that all the appropriate safeguards can, and will, be put in place through secondary legislation.
Prior to any regulations being made concerning specific classes of online or off-line publications, statutory consultation will be carried out and regulatory impact assessments undertaken. Regulations will not be made where there is clear evidence, as would emerge during consultation, that the cost of deposit would be disproportionate or that deposit would unreasonably prejudice the interests of publishers.
During the drafting of the Bill, the need to minimise impact on the deposit libraries and the publishers has been foremost in the Government's agenda. The Bill will be implemented slowly and incrementally, recording a balance of views.
A key role is, therefore, that of the advisory panel. This panel will continue the work of the publishers and libraries which have contributed to the crafting of the Bill, both prior to and during the parliamentary process. The Government are considering the terms of reference and composition of the advisory panel. We will be consulting all interested parties on the advisory panel after the Bill has received Royal Assent. The panel will be very influential, advising the Secretary of State on the drafting, scope and implementation of regulations, as well as considering their impact on all stakeholders. The advisory panel may also have an interest in the legal deposit of print. We believe that publishers and libraries would be in favour of that.
The Legal Deposit Libraries Bill has prompted discussion of some aspects of the print system. The print system is not being revised. However, the Government recognise that a number of publishers have concerns about the costs of compliance in respect of print publications which have limited circulation but are produced at high cost. A number of publishers are in active dialogue with the British Library to enable the development of a set of protocols on low-circulation/high-value print material that can reconcile the economic concerns of publishers within the framework of legal deposit. The Government welcome these moves.
The non-print publishing world is an ever-changing environment. The Government have repeatedly acknowledged this fact, and this Bill comes to this House able to manage complex implementation issues because it affords flexibility while offering numerous safeguards.
For off-line products, regulations will draw heavily on the model of the voluntary deposit system already in existence and working well. However, it is clear that prior to regulating for on-line publications there is a need for a substantial and in-depth consultation process. This fact is fully understood by Government, and this level of consultation fully intended. No regulations for on-line material will be made prior to this detailed consultation. Consequently, the initial set of regulations will be restricted to off-line publications.
578 During its passage through the other place the Bill was discussed in the light of three issues in particular: the definition of UK publications; different types of liability; and contracts governed by foreign laws—issues raised in the interesting debate today. These are all of particular concern to the non-print publishers. I should like to give assurance now on these issues on behalf of the Government.
The issue of determining UK publication within the context of the on-line world is multifaceted. The Government intend to work with the publishing industry in order to develop a full and satisfactory definition of "UK publications" in secondary legislation. This definition will, of course, be subject to consultation and involve all stakeholders. As was mentioned in the other place, the usefulness of the E-Commerce Directive will be assessed as part of this process.
Let me confirm, however, that it is not intended to impose deposit requirements on works which have no connection with the UK, or where deposit would present a significant risk to the depositor's business, for example risking termination of business or unsustainable costs. The Government are also keenly aware that publishers are concerned about liabilities other than defamation.
It is not intended that publishers should incur additional liability by virtue of access in legal deposit libraries. Clause 10 addresses the issue of liability in relation to defamation but in addition subsection 8 of Clause 10 allows the possibility of making regulations which extend protections beyond those relating to defamation which are stated in the Bill. This will certainly be reviewed at the appropriate time.
The issue of contracts with overseas parties is complex and has been debated in the other place. The Government have had substantial discussions with the digital publishing community on this matter and have benefited greatly in their understanding of the issues. The Government appreciate publishers' concerns and intend that any consultation prior to regulations being made would give due regard to potential depositors' overseas contracts. Regulations will not be made if depositing publications would seriously prejudice the economic interests of the publishers in relation to these overseas contracts. These issues arise particularly for publishers of aggregated material, an area where the UK excels, and where much content originates from overseas. The Government would like to reassure this sector.
There is substantial doubt that on-line aggregation services providing access, paid or otherwise, to collections of material published elsewhere and in other media would be eligible for deposit. This is because the content of UK relevance would be substantially the same as material already published and deposited. Deposit would in these circumstances result in unnecessary duplication.
In addition we do not consider that secure information provided on-line to a restricted number of private customers constitutes a publication as it is not, in effect, "issued to the public".
579 These issues can, and will, be further addressed, with advice and during the exhaustive consultation on online publications, and then further prior to making future regulations.
As I said, there is no doubt that this Bill has been greatly improved as a consequence of the intense dialogue that has taken place with all interested parties during its passage through the other place. The Government have actively listened and responded and will continue to do so. The Bill is much improved. Let me assure your Lordships, however, that there is no intent to bring these discussions to an end; they will be a fundamental part of getting the regulations right in the future and of creating an effective advisory panel.
Through the advisory panel, consultation and economic assessment regulations will be shaped to ensure the progressive construction of a national resource, one which will inevitably be selective, not comprehensive, as is consistent with the density of the on-line world. These regulations will be drafted in a legal context that will always insist that the concerns of stakeholders—deposit libraries and publishers—are fully taken into account. Here I should like to mention authors. I have not heard that word mentioned this morning. If it were not for authors—this is stating the obvious—books in whatever form and libraries would not exist. They, too, are important stakeholders in this matter. It is important that future regulations are effective, and this can be achieved only with the assistance and advice of stakeholders.
Three issues were raised in the debate which I should like to deal with briefly. The noble Lord, Lord Brooke, made an interesting point about the cultural deficit. The noble Lord, Lord Eatwell, thought that 50 per cent of electronic material was not deposited. We have an interesting problem here. As noble Lords will have heard, I have talked about consultation with the publishing industry. At the same time we wish to move with some speed and set up the advisory panel to address the problem that the noble Lord, Lord Brooke, raised. We have to balance moving with great speed with consultation. My noble friend Lord Prys-Davies raised the important issue contained in the report of the Select Committee on Delegated Powers and Regulatory Reform that was issued yesterday. I reassure my noble friend that everything will be all right. However, with his permission, I should like to write to him and send a copy of the letter to all noble Lords present because to deal with that question properly would take another 10 minutes or so.
The noble Baroness, Lady Buscombe, raised the question of the advisory committee and asked about the timetable. I return to the answer that I have just given to the noble Lord, Lord Brooke. We are aware that the advisory committee is crucial. I absolutely agree with the noble Baroness, Lady Buscombe, that it must be of a very high quality. However, we must consult on it. As I said to the noble Lord, Lord Brooke, we shall try to balance speed with the absolute necessity of getting an effective committee up and running.
580 I should like to thank all those who have been involved up to now. I hope that the Government can rely on their continued guidance and support. On behalf of the Government I commend the Bill to the House.
§ 1.28 p.m.
§ Lord Tope
My Lords, I am extremely grateful to all noble Lords who took part in the debate and for the generous support that the measure has received on all sides of the House. Not unusually in this House we have heard much of the history of legal deposit over the past nearly 400 years. The Bill looks to the future. As the noble Lord, Lord Strabolgi, commented, the 1911 Act made no reference to non-print material—how could it? I venture to suggest that we have even less idea what the next 100 or even 10 years will bring. That is why the Bill is enabling.
Many noble Lords expressed concern, which I certainly share, about the amount of non-print material that is already lost to the national archive and urged speed in dealing with this issue. I share that view. As has been said, during its passage through another place the Bill was subject to enormous discussion and consultation and emerged from there in a very different and much improved form from that in which it started. That process has continued, with consultation and discussion continuing fairly intensively, but is now moving much more to look to the regulations that will flow from the Bill when it is enacted and the establishment of the advisory panel, as is right.
If the wish expressed on both sides of the House that we move quickly on the matter is to be made good, it is important that the Bill has a smooth and speedy passage through the House. In the confident knowledge that that view is shared in all parts of the House, I commend the Bill to the House again.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.