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12 noon
The Minister for the Arts (Estelle Morris): Without going over the material covered by my hon. Friend the Member for Ipswich (Mr. Mole), I shall respond to one or two of the points raised by the hon. Member for North-East Cambridgeshire (Mr. Moss). I support new clauses 1 and 2—but not new clause 3—and amendment No. 20, which is consequential on the new clauses.
I think that it is generally agreed that new clause 1 provides the publishers and libraries with protection in the deposit of materials. New clause 2 provides that the deposit libraries will not be liable for any defamation arising out of the use of the material in the libraries
unless the library is aware that the material contains a defamatory statement and has had a reasonable opportunity to prevent that use. Similarly, new clause 2 offers publishers the same recognition. Hon. Members must understand that the Bill is enabling legislation that is designed to stand the test of time. Much of how it is enacted will be subject to further consultation and debate with publishers and others. It makes provisions in relation to future media, and new clause 2 gives us that additional flexibility.I want to deal with the point that the hon. Member for North-East Cambridgeshire raised about contracts with entities abroad not offering protection other than under English law. I would not for a minute wish to suggest that members of the publishing community would enter into a contract with someone overseas to give them protection from depositing in the UK, but the hon. Gentleman might accept that that is a loophole that could be exploited by those who do not act in the way that he and I would hope. In law, it is a potential loophole. Therefore, Ministers and my hon. Friend the Member for Ipswich cannot offer publishers protection from overseas law—only from English law. However, we shall consult publishers and the industry on a case-by-case basis.
The print media currently deposit books in libraries. They do not face this problem, and do not have protection from international law; they are protected only from English law. Although I understand the hon. Gentleman's point—none of us wants to put publishers into a position in which they might be subject to action from overseas law—I ask him to accept that we do not want a loophole to be exploited by those who act in a way that we would not consider to be honourable.
Mr. Moss: I made two points. The first is that there might be a problem with the law of the originating country. We accept that there may be a nominal position with regard to the breaking of that law. The more important point—I hope that the Minister accepts this—is that overseas suppliers of information may think that, given the circumstances under the Bill, they may not wish to continue to supply material. That would have a serious economic impact on the businesses involved.
Estelle Morris: I understand that point. To some extent, the hon. Gentleman responds in the way that I did. In circumstances that we might not expect, there is a potential for overseas people to view a contract in that light. I accept that that is possible. However, I repeat two points. The first is that that has not caused a problem with the printed books that are deposited in libraries, so it should be possible to find a way around that problem. Secondly, given that this is enabling legislation that will deal with the issues on a case-by-case basis, the hon. Gentleman's point is one that we shall want to consider.
The fact that there is not protection from non-UK law is something that publishers will have to take into account when entering into contracts. The purpose of the Bill in ensuring that we have national archives and libraries that keep copies of published material is important. Many amendments were made to the Bill in Committee and dealt with the proper concerns that were raised. We want to give ourselves a framework in the Bill
that will enable us to continue discussions with the publishers about how we can protect them while preserving our national heritage and libraries.I add one more point in response to the wish repeatedly expressed by the hon. Member for North-East Cambridgeshire for the use of wording taken from electronic commerce regulations. I am advised that it is used in a different context and that, legally, it is possible to refer back to the original EU directive for clarification. The Bill would clearly not enable that to happen, which is why the wording, which we have been advised is appropriate, does not always relate back to the e-commerce regulations.
It was entirely proper for the hon. Gentleman to table the new clause and express concerns on behalf of publishers. We are trying to offer publishers the protection that they want while ensuring that our libraries may access the copies that they need. I hope that he accepts that even if he has remaining concerns, they will be properly dealt with by the advisory committee which I reaffirm that the Government wish to set up, which will consider matters case by case. We will not initially require all forms of online and offline publications to be lodged. We will start with offline publications and move to online publications only when we have reached proper agreement following consultation with publishers and others. In the light of that, I hope that he will support new clauses 1 and 2, but not press new clause 3 to a Division.
Mr. Mole: I welcome the contributions made by hon. Members. We will return to the question of international protection when we consider amendment No. 21. I welcome the comments made by my right hon. Friend the Minister to provide clarification and cross-referencing, and I hope that they have persuaded the hon. Member for North-East Cambridgeshire (Mr. Moss) not to press new clause 3 to a Division.
Clause read a Second time, and added to the Bill.
New Clause 2
Exemption from Liability: Activities in Relation to Publications
'(1)
A deposit library, or a person acting on its behalf, is not liable in damages, or subject to any criminal liability, for defamation arising out of the doing by a relevant person of an activity listed in section 7(1A) in relation to a copy of a work delivered under section 1.
(2) Subsection (1) does not apply to the liability of a deposit library where—
(a) it knows, or in the case of liability in damages it knows of facts or circumstances from which it ought to know, that the copy contains a defamatory statement, and
(b) it has had a reasonable opportunity since obtaining that knowledge to prevent the doing of the activity in relation to the copy.
(3) Where, pursuant to section 1, a person (in this section, "the publisher") has delivered a copy of a work to an address specified by a deposit library, the publisher is not liable in damages, or subject to any criminal liability, for defamation arising out of the doing by a relevant person of an activity listed in section 7(1A) in relation to the copy.
(4) Subsection (3) does not apply where—
(a) the publisher knows, or in the case of liability in damages the publisher knows of facts or circumstances from which it ought to know, that the copy contains a defamatory statement, and
(b) it has had a reasonable opportunity since obtaining that knowledge to inform the library of the matter, facts or circumstances known to it and has not done so.
(5) Where a work is published on the internet, subsection (6) applies to a copy of the work if—
(a) the work is of a description prescribed by regulations under this subsection,
(b) the publication of the work on the internet, or a person publishing it there, is connected with the United Kingdom in a manner so prescribed, and
(c) the copy was made by a deposit library or person acting on its behalf copying the work from the internet in accordance with any conditions so prescribed.
(6) Where this subsection applies to a copy of a work—
(a) no person other than the library is liable in damages, or subject to any criminal liability, for defamation arising out of the doing by a relevant person of an activity listed in section 7(1A) in relation to the copy, and
(b) subsections (1) and (2) apply in relation to the doing of an activity in relation to the copy as they apply in relation to the doing of the activity in relation to a copy of a work delivered under section 1.
(7) In this section—
(a) "relevant person" has the same meaning as in section 7;
(b) references to activities listed in section 7(1A) are references to those activities whether or not done in relation to relevant material (as defined in section 7);
(c) references to a deposit library include references to the Faculty of Advocates.
(8) The Secretary of State may by regulations provide for this section, as it applies in relation to liability in damages and criminal liability for defamation, to apply in relation to liability (including criminal liability) of any description prescribed in the regulations, subject to such modifications as may be prescribed.
(9) Where this section applies to the doing of an activity in relation to a copy of a work it also applies to the doing of the activity in relation to a copy (at any remove) of that copy.
(10) Nothing in this section imposes liability on any person.'.—[Mr. Mole.]
Brought up, read the First and Second time, and added to the Bill.
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