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'(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—
( ) that as regards the restriction by section 7 (having regard to any regulations made under that section) of activities in relation to relevant material, the restriction of those activities under the laws of Ireland is not substantially less,
( ) that as regards the protection under the laws of any part of the United Kingdom of copyright, publication right, database right and patents in relation to relevant material, the protection under the laws of Ireland of corresponding rights is not substantially less, and
( ) that as regards the protection from liability under subsections (3) and (4) of section (Exemption from liability: activities in relation to publications) (or those subsections as applied by regulations under that section), the protection under the laws of Ireland in relation to corresponding liability is not substantially less.'.
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.
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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
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
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 regulations
- "may not be made unless the Secretary of State considers that the regulations do not unreasonably prejudice the interests of persons who publish works".
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
proposed subsection 7C and an example, even a hypothetical one, of the way in which the publisher's interests outweigh more general interests.
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