§ Mr. Deputy Speaker
With this it will convenient to take the following amendments: No. 25, in page 4, line 5, leave out subsection (4).
No. 19,that Clause 9 be divided into three Clauses, the first consisting of subsections (1), (7) to (7C) and (9) (Regulations: general), the second of subsections (2) to (6) (Regulations: Scotland and Wales) and the third of subsections (8) and (10) (Regulations: Trinity College, Dublin).
No. 17, in page 6, line 38, clause 9, at end insert—(7A) Regulations under section 1(4) or 6 may not be made so as to apply to works published before the regulations are made.(7B) Regulations under section 1(4) or 6 may not be made unless the Secretary of State considers that the costs likely to be incurred as a result of the regulations by persons who publish works to which the regulations relate are not disproportionate to the benefit to the public arising from the delivery of copies of such works.(7C) Regulations under section 1(4), 6, 7 or (Exemption from liability: activities in relation to publications)(5) may not be made unless the Secretary of State considers that the regulations do not unreasonably prejudice the interests of persons who publish works to which the regulations relate.'.
§ Government amendment (a) thereto, in line 3, after "1(4)", insert "2".
§ Government amendment (b) thereto, in line 8, after "1(4)", insert "2".
§ No. 22, in page 6, line 38, at end insert—
§ "(7A) Regulations under this Act may not be made—
- (a) so as to apply to works published before the regulations are made;
- (b) unless the Secretary of State considers that the costs likely to be incurred as a result of the regulations by persons who publish works to which the regulations relate are not disproportionate to the benefit to the public arising from the delivery of copies of such works, or
- (c) the Secretary of State considers that the regulations do not unreasonably prejudice the interests of persons who publish works to which the regulations relate.'.
No. 18, in page 6, line 41, leave out from 'satisfied' to end of line 43 and insert
,in relation to relevant material delivered pursuant to such an entitlement—
No. 21, in page 6, line 47, at end insert—
(9A) Regulations may not be made under this Act that would require a publisher to act in breach of any contractual terms entered into with a third party residing outside the United Kingdom.".
§ Mr. Mole
At the outset, I wish to make it clear that I encourage the House to support amendments Nos. 1 and 17 to 19, but to resist amendments Nos. 21, 22 and 25. I shall leave all comments on Government amendments (a) and (b) to amendment No. 17 to my right hon. Friend the Minister.
Amendment No. 1 relates to amendment No. 17 on proportionality. By deleting clause 6(3) and (4), which reappear in amendment No. 17, it moves, through amendment No. 19, the provision that says that regulations can apply only to works published after the regulations are made and the provision dealing with the impact on the publishers, which has been expanded and improved, to clause 9. That ensures that the provisions apply to regulations made under the general duty to deposit in clause 1(4), as well regulations on the use and deposit of non-print publications made under clause 7 and regulations made under clause 6.
Amendment No. 17 addresses proportionality and publishers" interest. The question of proportionality—balancing the needs of a publisher with those of a national archive—was raised in Committee primarily by the hon. Member for North-East Cambridgeshire (Mr. Moss) and my hon. Friend the Member for South Derbyshire (Mr. Todd). The amendment is an attempt to satisfy those concerns and to meet the underlying requirements of the Bill. It will ensure that regulations may apply only to works published after the regulations were made by covering regulations made under clauses 1(4) and 6—the provision replaces clause 6(3).
The amendment also replaces the requirement in clause 6(4) and deals with proportionality and unreasonable prejudicing of the interests of publishers. It provides that regulations requiring deposit may be made only if the Secretary of State considers that the 698 costs that are likely to be incurred by the publishers are not disproportionate to the benefit to the public of deposit. Regulations requiring deposit and dealing with access to the material deposited and harvested may be made only if the Secretary of State considers that they do not unreasonably prejudice the publishers of the relevant works.
The hon. Member for North-East Cambridgeshire tabled amendment No. 22, which would extend the proportionality provision to all regulations made under the Bill. I can say only that we have done that, when possible and practical, and I remind him that issues of proportionality will naturally be considered under each regulatory impact assessment that is required before the production of a set of regulations.
Amendment No. 18 relates to deposits in the Republic of Ireland and clarifies the circumstances in which material may be required to be deposited with Trinity college. Clause 9 currently provides that material need not be deposited with Trinity college if the restrictions on its use under Irish law are substantially less than those under UK law. The amendment clarifies and extends that provision by providing that deposit is not required when protection under intellectual property rights and liability for defamation is substantially less.
Amendment No. 19 is a consequential amendment that arises from new clause 1. It will divide clause 9, which is somewhat over-long, into three separate clauses. The proposed headings are "Regulations: general", "Regulations: Scotland and Wales", and "Regulations: Trinity College, Dublin". I am sure that hon. Members will agree that that will make the detail in the clause much more digestible.
Amendment No. 21 was tabled by the hon. Member for North-East Cambridgeshire. I understand that UK legislation cannot offer protection from breach of contract obligations to a greater extent than under the provisions in new clause 1. It is not possible to offer protection for contracts governed by foreign laws—we discussed the issue tangentially earlier. Future foreign contracts may be appropriately negotiated to take account of requirements to deposit, and I doubt that many international publishers would want to lose the ability to sell into the extensive UK market.
It is expected that overseas courts would not award more than nominal damages for breach of existing contracts if that were due to the publisher complying with an obligation under the laws of another sovereign state. However, if the matter continues to cause concern, it may be considered when regulations are proposed, consulted on and assessed.
I discourage hon. Members from supporting amendment No. 22, which was tabled by the hon. Member for North-East Cambridgeshire, because proposed new clause 9(7B) in amendment No. 17 would achieve the same effect.
I urge the House to resist amendment No. 25 because it would remove the Secretary of State"s requirement to consider the impact of regulations on persons who publish works of the description prescribed in the regulations, which would thus remove the protection for the business interests of publishers that we have worked to put in place. There has been long consideration of the impact that regulations would have on publishers and there is strong need for extensive consultation on the 699 detail of those. Amendment No. 17 specifies a tough regime in which the Secretary of State must consider the economic implications of regulations that she proposes.
§ Mr. Forth
I generally welcome amendment No. 17, but I have doubts about its viability. I think that I welcome proposed subsection 7A, which I would characterise as the non-retrospectivity provision. I am usually a great opponent of retrospection in legislation, but it is odd that the promoter should seek to prevent retrospection, because this is one of the very few cases in which it is justified. If we can only guarantee to capture this vital and valuable material from the point at which the Bill comes into effect, and perhaps risk missing a large part of material created until then, retrospection, rather unusually, may be justified. I shall leave it at that, because I would have to be talked into opposing the amendment for that reason. However, it demonstrates that there can never be any absolutes.
Amendment No. 17 also deals with the concept of disproportionality. Perfectly reasonably, it says that regulations shall not be made unless the Secretary of State considers that the costs likely to be incurred are disproportionate to the benefits—we are therefore dealing with our old friends, costs and benefits. I think that the hon. Member for Ipswich (Mr. Mole) said that he expected regulatory impact assessments to be used on a case-by-case basis. However, that does not inspire confidence in me, because the recent history of regulatory impact assessments has not been very good, as my hon. Friend the Member for Christchurch (Mr. Chope) has been at pains to point out, not just today but on previous Fridays. Time after time, the regulatory impact assessment has either not existed or has not been published or promulgated, or has been available only at the last minute.
At the very least, I would like an assurance from the Minister, who will preside over the assessments for, I hope, a very long time, that proper RIAs will be made, if they are to be as integral to the Bill as the hon. Member for Ipswich suggested. With that proviso, I am prepared to go along with amendment No. 17, which introduces the vital link between costs and benefits that most of us want.
We should welcome the requirement in amendment No. 17 that regulationsmay not be made unless the Secretary of State considers that the regulations do not unreasonably prejudice the interests of persons who publish works".I would welcome the expansion of that concept. It sounds encouraging, but how on earth do we balance the interests of people who publish the works against more general interests? I should be grateful if someone could give me an example of a case in which the interests of the publisher prevail over the more general interests and, presumably by implication, prevent material from being recorded. Such recording is, of course, one of the intentions of the Bill.
Although I welcome the provisions in amendment No 17, they require a little more explanation. I would like a commitment from the Minister on the way in which regulatory impact assessments will routinely fit into the Bill"s mechanisms. I should also like an expansion of 700 proposed subsection 7C and an example, even a hypothetical one, of the way in which the publisher"s interests outweigh more general interests.
§ Mr. Chope
I think that the hon. Member for Ipswich (Mr. Mole) has misinterpreted my amendment No. 25 because it would remove the requirement thatRegulations … may not be made so as to apply to works published before the regulations are made.I tabled that amendment because I am concerned about the gap between the situation as it is now and the time when the regulations might be made. If it is important to capture this material so that it will not be lost to posterity, we may be waiting many years before the regulations are brought forward.
Having heard the Minister"s helpful comments in response to the previous group of amendments, it seems that the matter will be so complicated, particularly with online publications, that it may be many years before we have any regulations. In the meantime, there will be no requirement that important online publications should be deposited with the library. I hope that the hon. Gentleman can address my concern that there may be a lacuna in the Bill if subsection (4) remains.
§ Estelle Morris
I particularly wish to speak to Government amendments (a) and (b) to amendment No. 17. which I think has been welcomed. The amendments seek to offer extra protection to the publishers, because, as I think has already been said, one of the characteristics of online publishing is that work can be republished and republished and changed every day, so a decision has to be made as to whether a publication is new or substantially the same. The same could be true of printed books as well.
Amendment No. 17 and amendment (a) merely give the reassurance that when consideration is given to whether a publication is substantially the same, the cost to the publishers will be taken into account. I hope that will be welcomed by the publishers as some protection.
I am glad that the hon. Member for North-East Cambridgeshire (Mr. Moss) acknowledged my previous comment that RIAs will be published in respect of the regulations, and that they will be introduced in the right and proper way, giving yet another opportunity to discuss the consequences of any subsequent regulations. I hope that he will understand if I resist trying to invent an example of a case of the interests of the publisher outstripping the interests of the public; otherwise we would be here all weekend, let alone all afternoon.
§ Mr. Moss
I wish to speak to amendments Nos. 21 and 22. I mentioned amendment No. 21 in my opening remarks on new clause 3, to which I said it was related. We had a fairly good debate on that and I do not wish to continue that discussion any further at this juncture, save to say that it is an important point that I believe will be revisited in the other place.
The hon. Member for Ipswich (Mr. Mole), in discussions with the Department, has gone quite a long way to meeting some of the reasons for tabling 701 amendment No. 22, except that it referred to regulations under the Bill whereas amendment No. 17 restricts the regulations to clauses 1(4) or 6. Clause 1(4) states:In the case of a work published in a medium other than print, this Act applies to a work of a prescribed description.Therefore amendment No. 17 refers to non-print publications.
My amendment has not made the grade, so to speak, but I sought to broaden the debate from non-print to print, because there are still some concerns relating to the print medium, which I am sure is an issue to which we will return in the other place. Unfortunately, as the Committee stage was rather rushed, although there has been some consultation, the time scale has been limited and many of us received the amendments only a day or so ago and the selection of amendments only last evening. I am informed by the publishing community that it was told of amendments, or received amendments, only after the deadline for tabling them at 7 o'clock the other day. It is not pleased about that. It meant that it was unable to adjust some of its ideas and proposals accordingly. There are outstanding issues, especially with regard to print, that will be revisited. I am putting that down for the Minister and the proposer to take on board, because these matters will need to be addressed fairly rapidly in the short time that is available before the House rises.
As drafted, the structure of the Bill will continue without any change to the current system of deposit of print publications to the British Library, and on request to the other legal deposit libraries. There is, however, a failure to recognise the economic impact of the current system on a significant number of print publishers of high-value business, particularly management and scientific reports, directories and printed databases. These publishers may well sell fewer than 10 copies of any given title. The costs to them are, first, the marginal cost of supply and, secondly, the loss of sales resulting from access to deposited materials by users, or by the deposit libraries not purchasing those materials.
The deposit libraries have recognised that and have accepted that publishers can embargo access to their materials and deposit to on-deposit libraries only. However, there was no consultation on the current system of print deposit. The Kenny committee was set up by the Government to consider these matters, and especially non-print publishers. It focused only on non-print publishers, and the libraries acknowledged the difficulties under the current system for certain publishers. Those difficulties are not acknowledged in the Bill. I attempted through amendment No. 21 to bring them within the ambit of the Bill. I recognise that I failed to do so, but I am sure that the issue will be revisited, as I have said, in the other place.
It seems fair and reasonable that protections should equally apply to all publications, whether they are format print or non-print. In amendment No. 17, the proposer has gone quite a long way to accepting the principles of disproportionate burden, but only as they apply to non-print publications. An imbalance is left for some publications, particularly of the high-value, low-volume producers. That being so, I shall not press my 702 amendments. As I have said, I can assure the Government and the proposer that these issues will be revisited.
§ Mr. Mole
I welcome the contribution of all hon. Members. I shall respond to the challenge to identify an example of the balance of decision between the publisher interest outweighing the requirement to deposit. The hon. Member for North-East Cambridgeshire (Mr. Moss) has touched on the concept of high-value, short-life publications in the print world as much as in the non-print world. In the non-print world, it is particularly critical for a number of publishers that there should be some decisions about at least making a delay in the availability of deposited material so as not to interfere with their ability to extract commercial benefit from their short-run publications.
The other circumstance would be one where sales are less than a certain number. It would be appropriate for the Secretary of State to make regulations requiring that deposits not be made
The hon. Member for North-East Cambridgeshire commented on the difficulties from which we have all suffered as a result of the time that it has taken to nail down some of the detail in the Bill. The issue of variants to the print regulations has been raised at the 11th hour. I thought it was clear since Second Reading and through Committee that there was no intention to change the 1911 framework with regard to print.
I respect the concern of the hon. Member for Christchurch (Mr. Chope) about the gap that may exist until regulations are made. He should accept an honest commitment made by the Minister to make progress where progress can be made, and as quickly as possible.
§ Amendment agreed to.