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Mr. Mole: At the outset, I want to make it clear that I encourage the House to support new clauses 1 and 2 and amendment No. 20, to which I shall speak, but to resist new clause 3.
I welcome the opportunity to return to improving this important measure. The new clause addresses an issue that was outstanding after the Committee proceedings: the concern that publishers may, in certain circumstances, be in breach of contract with some third party for depositing material with the legal deposit libraries.
The new clause provides that a publisher shall not be in breach of contract nor infringement of copyright or publication right by depositing a work in accordance with clause 1, or by depositing any computer programme in accordance with clause 6 (2)(b). It gives protection for contracts that are governed by the laws of England, although it does not offer protection for other contracts. However, I have been advised that it is unlikely that foreign courts will act when that is a condition of compliance with laws of another sovereign state. The new clause thus offers some international protection.
Publishers in some sectors want to be further protected by a clause that extends the provision to international contracts. Indeed, the hon. Member for North-East Cambridgeshire (Mr. Moss) has tabled an amendment that would address that issue. I have been advised that that may provide a loophole and allow publishers to avoid deposit. I retain concerns that if such a clause is incorporated there is a risk that there would be scope for contracts to be structured deliberately to avoid the requirement to deposit. I am sure that would not be the intention of committed publishers, but I shall revisit that point when we discuss amendment No. 21. It remains the case that those matters cause concern, so there will be an opportunity to raise detail for consideration when any regulations are proposed, consulted on and assessed.
As promised in the Standing Committee, new clause 2 has been drafted to address the liability for defamation incurred through the accessing of deposited material. Under subsections (1) and (2), it provides that libraries will not be liable for damages for defamation arising from accessing the material in the library unless the library knows, or ought to have known, that the material contained a defamatory statement and did not remove the material, or disable access to it, within a reasonable time. Under subsections (3) and (4), the new clause provides that a publisher will not be liable for damages for defamation arising from accessing the material in the library unless the publisher knows, or ought to have known, that the material was defamatory and did not inform the library of that.
I am pleased that we can introduce the third leg of the Bill. Until now, discussions have covered print and offline electronic publications. However, an important element of future proofing is the ability to harvest online content, for which specific powers to deposit are obviously not required. Protection from defamation is introduced under subsection (5), while copyright breach and other issues are reflected in amendments Nos. 7, 9 and 14.
Subsection (5) provides that where material of a prescribed description has been downloaded from the internet, in accordance with any prescribed conditions, only the library can be liable for damages for defamation and it will be liable only in the same circumstances as those outlined in subsections (1) and (2). Publishers cannot be liable for defamation arising as
a result of access to material in libraries when the material has been harvested. The provision applies to any copies that are made of the original work deposited: for example, for preservation purposes.The new clause does not include a provision for liability for contempt, as the Department for Constitutional Affairs has advised that neither libraries nor publishers would be liable for contempt as a result of accessing the material in the libraries.
I understand that, to achieve consistency, some publishers still want to cover all liabilities and activities. I have been advised that, other than defamation, no potential liabilities would arise from using the material in libraries. However, subsection (1) of new clause 2 enables the defamation issue to be addressed and, under subsection (8), the Secretary of State is enabled to pick up other liabilities where a case has been demonstrated that that is necessary. That seems a much simpler and more effective way of dealing with the concerns that were raised.
New clause 3, tabled by the hon. Member for North-East Cambridgeshire, deals with legal liability. It will deliver no benefits beyond those already provided for under new clause 2. That is because other issues arising, unlike defamation, cannot lead to the conclusion that simply accessing material constitutes re-publication. In any event, as I have just described, new clause 2(8) will create the enabling power for the Secretary of State to address any such issue if a case is made in the future. Amendment No. 20 is technical and will insert a definition of database rights in clause 10, entitled "Interpretation".
Mr. Malcolm Moss (North-East Cambridgeshire): I wish to speak to new clauses 1 and 2, then new clause 3, which is on the amendment paper in my name.
New clause 1, tabled by the hon. Member for Ipswich (Mr. Mole), seems only to give protection for contracts governed by the laws of this country. It does not seem to offer protection for contracts with overseas content suppliers who have made those contracts in other jurisdictions under the laws of other countries. Much of United Kingdom publishing is international in content, and a great many UK publishers incorporate in their online services information sourced from information suppliers residing outside the UK—in the United States, for example—and those contracts are concluded under the appropriate laws of those foreign countries. New clause 1 will not, in our opinion, remove UK publishers' legal exposure for making deposits in breach of contractual or confidentiality obligations with third party, overseas content providers. In an attempt to clarify that difficulty, we have tabled amendment No. 21, which has been grouped with another set of amendments, but which goes to the heart of what we propose in new clause 3.
The hon. Member for Ipswich said that he had been advised that UK legislation could not go further than offering the protection from breach of contract obligations that is proposed in the new clause. He also claimed that it is not possible to offer protection in respect of contracts governed by foreign laws, but in our opinion that need not be so. It is certainly possible for the Government to provide that the deposit obligations will not override the provisions in contracts with
overseas suppliers. By not addressing that exposure, the hon. Gentleman, with Government support, risks exposing many UK-based publishers to breach of contract and confidentiality obligations with foreign information suppliers. That is a new and unacceptable exposure.The hon. Gentleman also said that he had been advised that overseas courts would not award more than nominal damages—I think that that was the phrase he used—in respect of a breach of contract if the breach were due to the publisher complying with an obligation under the law of another sovereign state. Again, in our view, the risk of damages from breach of contract will often be less important than enabling overseas suppliers to terminate their contracts with UK publishers, thus possibly depriving them of important raw material for their products. Furthermore, it would be a burden for UK publishers to be required to negotiate special terms with all their overseas suppliers, assuming—of course, this is by no means certain—that overseas suppliers would be willing to agree to contract changes.
I shall give the House some examples of such contracts. In particular, Cambridge University Press has supplied examples of software licences governed by non-English law, where it is unrealistic to suppose that the licensee could insist on a change to the wording such that the agreement would be governed by English law. First, Cambridge University Press licenses text software for use in a CD-ROM and networked version of a dictionary. That agreement is governed by the laws of Denmark. Secondly, the press also licenses Aladdin systems for, I am told, the Stuffit—an inappropriate word, I am sure—installer, which is a common decompression programme for use in CD-ROM products. That licence is governed by the laws of the state of California. If such licences were contravened by legal deposit, the protection offered by these proposals would be of no comfort. In our opinion, it would be essential for the duty to deposit to be waived in such circumstances.
Again, the hon. Gentleman took the view in proposing his new clauses that they have taken on board some of the views and opinions of the publishing community, whereby contracts with third-country suppliers would create a significant loophole. Having looked at what is proposed, the Department's line is now that, if the Government went along with these proposals, a significant loophole would be created through which, as the hon. Gentleman said, publishers could avoid the requirement to deposit. He did not, however, attempt to explain this morning why that would create a loophole. The publishers do not believe that it would create one, and our amendment relates only to contracts with foreign-based suppliers. Apparently, a fear exists that UK publishers might decide to relocate overseas as a result. Again, we do not for one moment find that credible. Our amendment, recommended to us by the online sector, is an entirely reasonable and proportionate means of addressing this exposure by removing the offending parts of the clauses.
As far as new clause 2 is concerned, although the exemption from liability in defamation represents a welcome addition, and we thank the hon. Member for Ipswich for listening to the submissions made to him in
that respect, other categories of liability need to be addressed, as is the case in the Electronic Commerce (EC) Directive Regulations 2002. The hon. Member for Ipswich went on to say that under subsection (8) of his proposed new clause the power may be used in future to confer protection from liability in respect of other matters by regulations, should that prove necessary. There is a feeling, however, that although that power exists, it may not be used, and all that remains, of course, is the proposal on defamation. Other matters of concern to the publishing industry, in terms of the additional offences that might be faced, are the following: negligent mis-statement, contempt of court, privacy, racism, obscenity and misleading advertising. All those areas of concern have been expressed on many occasions, and have not so far met with the hon. Gentleman's approval or support from the Minister or the Department.The hon. Member for Ipswich claimed that he has moved in the direction of the publishers by limiting liability for works published on the internet. That is in subsection (5) of new clause 2, which states:
- "Where a work is published on the internet, subsection (6) applies to a copy of the work if . . . the work is of a description prescribed by regulations under this subsection",
- "the publication of the work on the internet . . . is connected with the United Kingdom in a manner so prescribed".
We also believe that the notice and takedown provisions in the Bill should be consistent with the e-commerce regulations that already exist, to ensure that publishers and libraries operate under a consistent legal framework. It would be unacceptably confusing and entirely unnecessary to have a different notice and takedown regime for legal deposit under all other circumstances. For the sake of consistency, all liabilities should be addressed in the Bill as closely as possible to those provisions set out in the e-commerce regulations. Through new clause 3, we begin to address some of those issues. Although I shall return later to amendment No. 21, it is coupled with that in terms of tightening up what are considered to be problems and difficulties with the way in which the Bill is currently drafted.
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