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Standing Committee F
Wednesday 4 June 2003
[Mr. Joe Benton in the Chair]
Clause 1
DEPOSIT OF PUBLICATIONS
Question proposed, That the clause stand part of the Bill.
2.30 pm
Mr. Malcolm Moss (North-East Cambridgeshire): Welcome once again to the Chair, Mr. Benton. Owing to the Licensing Bill, we have been seeing each other quite regularly recently. I even have the same Minister opposite me today as I did when we were in that Committee.
The heart of the Bill lies in the first sentence of the clause. It refers to a
“person who publishes in the United Kingdom a work to which this Act applies”.
Amendment No. 8, which was tabled by the hon. Member for Ipswich (Mr. Mole) to clause 9, would redefine and clarify the meaning of a publisher and published material.
On Second Reading, Conservative Members rode in behind what we thought was a consensus about the Bill. There was broad support from the parties that would be involved. We anticipated that the consensus would continue throughout the Bill’s passage in the House. At the eleventh hour, however, an important group of people who will be affected by the Bill—the publishers—did not consider that their serious concerns had been dealt with, nor did they believe that the amendments that had been tabled would deal adequately with those anxieties.
The main issue is how to define a publisher and published material, so that all the affected parties are of the same opinion about such matters. There has been an extremely good working relationship between the libraries and the publishers in the joint committee for voluntary deposits and the voluntary deposit scheme, which has been in action for some years. It has worked extremely well and all the parties to it are happy with the arrangements.
The Bill then comes along and raises all sorts of issues that hitherto had not been considered. The majority of proposed legislation tends to widen matters to a catch-all situation, which is what this Bill does. The problem for people outside the House is that if measures will affect their lives and livelihoods, they want to know in print—that is, in the Bill—exactly what they are letting themselves in for. They want their worries dealt with in the Bill. We are discussing generic legislation; it is an enabling Bill under which the Secretary of State can make regulations, and that is par for the course.
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The problem is that the regulations are not even in print. They may be only a figment of the imagination of one or two hard-working officials at the Department. Who knows? They are certainly not available to us. Publishers and published material will be dealt with in the fine print of such regulations, and that is what the publishing community is worried about. The non-print media covers publications in microform or on diskette, physical media, such as magnetic tapes and discs, or optical discs, such as CD-ROM or DVD. They are primarily text based and intended more for information than as educational products.
The benefit of a Bill that limits itself to that sort of hardware, or offline type of publication, would be that it would mandate the terms of the existing voluntary scheme to which I alluded. Libraries have practical experience of operating it, albeit with a cataloguing backlog, and the technical issues have already been addressed. The publisher and library communities would be able swiftly to implement regulations to double the content currently being deposited.
There are a great number of problems and we will cover those in more detail as we get into the Bill and the amendments. There are several problems, both known and as yet unknown, surrounding the concept of deposit of online. That perhaps ought to be addressed separately, because there is real concern from the publishers that the in-depth consultation that is so necessary has not yet taken place. The consultation that has already taken place, which was important, sent out questionnaires to only a relatively small number of publishers. Only 22 respondees to that questionnaire are logged in the appendix.
However, the questionnaire that went out in the consultation process related mainly, if not totally, to offline products, and the bigger companies, which are very much involved in the online business, were not consulted at that time. It seems to have come as something of a surprise to many of them that their activities would be caught up with the Bill. The point of the questionnaire was to have a regulatory impact assessment but, by definition, if online deposit was not touched on at that time, it can have been only on a speculative, hypothetical basis as no trials of such deposits—that is, online—had actually taken place and major online publishers were notably absent from the list of consultation interviewees.
There are serious questions about the online publishing system. The nightmare of some worldwide online publishers is that they will become subject to a multiplicity of different national deposit schemes that would be costly and disruptive, and, in some jurisdictions, susceptible to abuse. The United Kingdom’s Legal Deposit Libraries Bill is probably one of the first in the world, although I understand that New Zealand has recently introduced a similar Bill. The hon. Member for Ipswich, who should be congratulated on bringing forward the Bill, is moving into uncharted waters as far as the international community is concerned. The Bill is in the van of ideas relating to legal deposit.
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Many online publishers have contracts with the international business community and there is a fear that they may be jeopardised if the fine print of the Bill is not made available to them fairly soon. No doubt the hon. Member for Ipswich could set the Committee’s mind at rest on that, but perhaps the e-commerce directive, providing for exclusive country of origin regulations on online services, would in any event preclude the UK from trying to extend the deposit regime to online services available here, but originating from companies established in other member states. However, there is still some uncertainty whether the UK, under its international treaty obligations under the general agreement on tariffs and trade, would extend the regime on publications available in the UK from publishers based in countries outside the EU. In either case, there would be major complications and a great deal of controversy and resentment from overseas publishers and their Governments if the UK tried to impose a British deposit regime on publications from publishers established in other countries.
A large proportion of the content of services of many international online publishers is provided under licence from third party content sources based outside the UK. For example, there might be contracts with almost all the world’s stock exchanges to disseminate in real time their market prices globally in return for payment of per user fees for each subscriber choosing to receive price data from the stock exchange concerned. The service providers are prevented contractually from supplying price data to subscribers who do not pay the exchange’s end-user charges. We do not believe that the UK has the legal competence to override those contractual obligations, so we could be putting companies in breach of contract with the exchanges if they were required to supply the data free of charge to the libraries.
To extend the argument about online systems and businesses, we must have clear definitions in the legislation. The hon. Gentleman will promise that that will happen through secondary legislation, as clause 6(2)(g) states that the Secretary of State may
“make provision as to the circumstances in which works published on line are or are not to be treated as published in the United Kingdom”.
However, that is of little comfort to a business that deals in billions, and which is probably one of the most important industries that we have in this country. In terms of its earning capacity and the number of people it employs, it is bigger than the pharmaceutical industry. If we do not get the Bill right, and the regulations are not formed in a way that assists the business but rather diminishes or undermines it, we shall do a great disservice to the business and the country as a whole.
In order to progress that idea, when the hon. Gentleman responds, perhaps he needs to give a clearer indication than we have received hitherto that consultations will start in earnest with the business community to ensure that its concerns and fears are taken into account in the wording of the Bill. Perhaps the problem should be taken in stages: take what is offline to begin with and work on the basis of what has
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already been agreed and worked on through the joint committee, and bring it online at a later date. That is one possible solution.
The time scale is short, and one of the problems with the Bill is that it appears to be being rushed. That is not an indictment of the hon. Member for Ipswich—he made the right decision in taking the Bill off the shelf and promoting it. Most of the people to whom I have spoken agree in principle that the Bill is an important piece of legislation. There is general agreement about its principles, but it is the nitty-gritty and the small print of the regulations that will impact on those involved.
I should like a promise that greater consultation will take place before we reach our discussions on Report and Third Reading. If time for that is not available, consultation should take place before the Bill finishes its passage in the other place. That would be helpful to the business community, which feels that serious concerns need addressing. It would welcome more detailed consultation with the hon. Gentleman and those who are helping him with the legislation.
Thank you, Mr. Benton, for giving me licence to use this opportunity. I have introduced some broad concepts, some of which will be addressed later under specific amendments. At the heart of the Bill is the requirement on publishers to deposit, so we must be sure clearly to define which publishers and which published material we are talking about. I hope that there might be some response from the Minister about a way forward that would satisfy everyone.
2.45 pm
Mr. Mark Todd (South Derbyshire): May I at the outset declare a minor interest? First, I spent 20 years in publishing and I am very familiar with the subject of this Bill. Secondly, I acted as a scrutineer of the survey to which the hon. Member for North-East Cambridgeshire (Mr. Moss) referred. I did so on behalf of publishers and I received a small remuneration. I shall refer to the points that I made then. That was nine months ago, before I had seen the Bill and there was no real prospect of it emerging from the woods of possible handouts that lie around most Ministries.
As the hon. Gentleman made clear, we have to get this matter straight in the first clause as it sets down the core issues of the Bill. We need to understand what legal deposit is for. It is a system for ensuring that we have a corpus of information in our country that reflects our literature and information industry at that moment in time. It is there for future use by historians and others to gather a reflection of what we are saying, doing, thinking and writing then. That is its purpose.
It is also important to understand what its purpose is not. It is not to substitute for the normal process of acquiring information through, for example, a specialist library or purchasing a book from a publisher or subscribing to an online information provider. It is not to provide free access to what is often extremely expensive information.
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I can give an illustration from my own experience. For a period, I ran a specialist database business that produced a product that described British science and technology expertise. It sold for £10,000 to business subscribers. That was in the early 1990s, which gives an idea of that in relative money terms. I would have been mortified if instead of paying that £10,000 to my business and thus support its development and future health, someone could pop into one of the deposit libraries and obtain that information for nothing. That illustrates the difference between the two purposes of the Bill.
Sometimes, there is confusion about the purpose of legal deposit. It is not about making information available to people freely because that is something that they should have as of right. It has a specific, narrow purpose. In that context, we have to recognise the specialist section of information providers who are deeply impacted by this legislation.
As I said, I spent 20 years in the industry. The fact that publishers had an obligation to deposit their product with the various copyright libraries, as we tended to call them, was a matter of no controversy whatever. It was a voluntary scheme. I am sure that the Minister will be told that there were some enforcement actions but I never knew of any, either in my own business or businesses I had dealings with and I was at a pretty senior level in the company by the end.
That is a monument of voluntarism in Britain, supported by statutory power. The statutory power is there to enable that voluntarism to function as well as it does between two groups of people—specialist librarians and publishers—to produce this corpus of information that we all value. We must therefore ensure that any steps we take do not harm that essential voluntary ethic. It must be seen as in the publisher’s or information provider’s interest to participate willingly in the exercise.
I do not think that the hon. Member for North-East Cambridgeshire knows the industry as well as I do, but he has learned some of the key points well. The critical issues include how the Bill will relate to dynamic products—in other words, products that change hour to hour, minute to minute and second to second—particularly, as the hon. Gentleman said, when the person involved with the information provision does not own the information and cannot speak for its use in quite the way that might be imagined in the Bill. They certainly cannot predict the precise usage that might be followed through by an individual library. The Bill therefore needs to define more sharply how it relates to that community and I have gently suggested that a way forward, at least pro tem, might be, rather like the hon. Gentleman suggested, to narrow slightly the focus of the Bill while we think a little harder about that sector.
That is enough of that part. I shall now deal with the second element. Incidentally, I did not publish a dynamic product. In those days, dynamic products were pretty scarce; they are much more commonplace now. However, it is still the case that if those who
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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. We will just do away with those businesses in this country; they will go and operate somewhere else.
The business that I worked for and brought to reasonable health would have been one of those businesses. I would not have dreamed of running that business in a context in which I had to make such a product freely available to a wider information community without proper restrictions. I would have wanted at least to say, “I’m sorry. We’ll deposit the product now, but you will not be able to allow access to it for another 12 months, by which time I will have published a new edition, which will then be available to the people who are paying the money for it.” In that way, people would retain the right to the corpus of information, which reflects what information was provided at that time, but they would not be able to use it for commercial gain or other purposes, which a person dropping into a deposit library would be able to do without restrictions.
We also need to consider the restrictions that are already in place. Under the voluntary scheme, there is recognition of some very low-volume publishers and their needs and we need a proper definition of that. It may not need to be in the Bill, but it certainly needs to be clearly understood because otherwise we will just kill the sector stone dead.
It would have been nice if the Bill had gone back to first principles, although I certainly do not attach any blame to my hon. Friend the Member for Ipswich in that regard. The note that I prepared on that nine months ago says,
“this is surely an opportunity to reconsider the Legal Deposit scheme as a whole. What was its purpose . . . Is that purpose still relevant? Is the shape of the scheme right in its balance between the responsibilities of publishers, the state and the end user? Are the current recipient libraries the right ones for the purpose defined?”
A little issue scooted across the horizon there, but I will not touch on it, because it has an element of controversy in it. I said that the reason why now was the time for a rethink was set out tangentially in the paper that I was considering, and that the scale of electronic delivery was already too large for the voluntary scheme to cope with.
People may not have seen that research, but I did. It was demonstrated that the library system was not coping with the existing voluntary deposit process, and we were loading an obligatory process of an unknown scale on top of that. How were we going to cope with that? Some estimates were prepared, which I must admit I entered some cautionary notes on. My note goes on to say that the value of cataloguing the data received is already implicitly thrown into doubt by the failure to address the problem today.
Secondly, I was interested in the remarks of the hon. Member for North-East Cambridgeshire on the lack of international perspective. Other countries have equivalent legal deposit schemes of some regard and we can learn from them. Thirdly, we have no indication of the perceptions of the users of the legal
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deposit materials on this question. Who uses it, and what do they think? How do they use the materials, and how critical is instant access?
I would have liked a more fundamental examination of the thrust of the provisions, but I nevertheless welcome the Bill. I am delighted to help with its passage, but it would help if sharper thought was given to how some of the issues relate to the industry in which I have spent my working life. As the hon. Member for North-East Cambridgeshire said, it is one of our most important industries; it is quite disproportionate in scale to our nation’s trade. The crux of that is twofold. First, the English language offers us a huge advantage in providing resources for an information industry. Secondly, the strength of our financial institutions often provides a nexus for a large flow of information.
Those huge advantages have helped us to build a world-beating sector, and I was proud to have been part of it. I shall not make the apocalyptic statement that the Bill would destroy all that. No, it will not. However, it will make it harder for the voluntary principles on which the industry and the libraries that it worked with to operate. We should try to protect those principles within the Bill’s focus.
The Minister for Tourism, Film and Broadcasting (Dr. Kim Howells): First, Mr. Benton, may I say what a pleasure it is to serve on another Committee under your chairmanship, especially on the day that Liverpool was announced as the capital of culture. There will be much gnashing of teeth in the Room as a result. The hon. Member for Ceredigion (Mr. Thomas) shakes his head, but some people did not give Cardiff much thought.
I congratulate my hon. Friend the Member for Ipswich on promoting the Bill and I reaffirm the Government’s support for it. It represents an important step towards the safe keeping of our national intellectual output for generations to come. I welcome the positive approach taken by the hon. Member for North-East Cambridgeshire; it is consistent with his approach to most Committees of which we have both been members. He and my hon. Friend the Member for South Derbyshire (Mr. Todd) made some important points. We have a long way to go to reassure people, especially about the protection of intellectual property—a matter of enormous importance. As my hon. Friend said, we have a disproportionate input into the world economy; an awful lot of people are employed in the sector and in many ways we lead the world. We must not do anything to jeopardise that.
My Department has worked closely with my hon. Friend the Member for Ipswich, the British Library and the publishing community in the drafting of the Bill and the amendments. The principle of the Bill has received widespread support, but we were given notice of concerns immediately prior to and following Second Reading on matters of detail. If I may, Mr. Benton, I shall spend a little time discussing those concerns and outline how we have tried to respond, although the details of our response will emerge during our debates on the amendments.
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At the end of March, my Department met the Digital Content Forum, which represents online publishers and representatives from the publishing industry, including from Reed Elsevier, Reuters, News International and other online publishers and others in the newspaper publishing industry. Those substantial and productive discussions have continued in smaller and more focused meetings, and have substantially informed the amendments that my hon. Friend has tabled.
3 pm
Prior to the introduction of the Bill, the DCMS worked closely with the joint committee on voluntary deposits, which has been chaired by the British Library, and kept it closely informed on the Bill’s progress and on drafting the regulatory impact assessment. The joint committee comprised representatives from the deposit libraries, the deposit libraries’ agent and several publishing industry representatives, namely the Publishers Association, the Directory and Database Publishers Association, the Association of Learned and Professional Society Publishers, the Periodical Publishers Association Limited and others. They were warmly supportive of the aim behind the Bill of extending the print system to the non-print world, and were commissioned to provide an assessment of the costs and other quantifiable effects of the Bill. The report that Electronic Publishing Services provided was welcomed in the JCVD’s September meeting as an excellent piece of work. The chair of the committee recommended the report to my Department as an accurate and sensible study on 4 October 2002. In that correspondence with the Department, the chair added,
“JCVD believes that a strong case has been made that legislation on extended legal deposit will not be controversial, and that its implementation can be incremental and harmonious”.
Around the time of Second Reading, we were alerted to several concerns, which we shall discuss this afternoon. As my hon. Friend the Member for South Derbyshire said, some of those concerns are due to the rapid evolution of the world of non-print. The Bill recognises that fact and provides a flexible but enduring framework for capturing new publication media to ensure that they can be represented, albeit selectively, in the national archive. The Bill does that by establishing regulation-making powers. I am glad that the hon. Member for North-East Cambridgeshire has drawn attention to that because it is difficult to consider a Bill when those regulations do not exist—I have always found that, on whichever side of the Chamber I have been sitting. It is important that we debate that issue because the Bill is special in that sense, since we cannot draw up the relevant regulations until there has been an exhaustive consultative process.
I am also glad that the hon. Gentleman, along with my hon. Friend the Member for South Derbyshire, suggested that it may be a good way forward to focus more strongly on the least contentious part of Bill, which concerns the offline information—CD-ROMs, microfiche, and so on—and consult thoroughly and
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work hard on drawing up regulations for online material, in relation to which there has been a good deal of concern and controversy.
Brian White (Milton Keynes, North-East): One of the concerns that gave rise to the Bill is that some material has already been lost to posterity. In the consultation period, will my hon. Friend ensure that the voluntary scheme that has been talked about looks to protect that material for the long term?
Dr. Howells: Obviously, I cannot give my hon. Friend a guarantee that that will happen. He makes the important point—I have heard him make it before—that a great deal of material has already disappeared into the ether. I am worried about the amount of material that has been published online, which is almost a new medium, especially for academic publications. A great deal of valuable material has been published and subsequently disappeared. Although I would not like to make a judgment about what that has meant for the scientific or any other community, I believe that we should be concerned about it.
As my hon. Friend the Member for South Derbyshire pointed out, an enormous amount of information is published of an almost infinite variety and, depending on who might log on and pay for it, that information varies enormously in its value and cost. We will do our best to encourage all the stakeholders—if I may use that cliché—to ensure that important material is not lost to archives and future researchers while the Bill is under consideration.
The Bill will give the Secretary of State powers to make regulations relating to the deposit of different classes of published work in different media when it is appropriate to do so. At each juncture, we will need to find the correct balance between the legitimate needs of the national archive, which are likely to vary between classes of material, bearing in mind what my hon. Friend the Member for South Derbyshire has told us about the aim of developing a national archive, and the implications and costs for the businesses of publishers and other stakeholders.
Those issues will emerge and be discussed during the detailed consultation that will precede the implementation of any regulations. I understand the sense of unease that there may be in some quarters about the possible lack of consultation, but I give an undertaking to the Committee that detailed consultation will take place. The issues will be explored further through the regulatory impact assessments, which will be prepared for each set of regulations.
The Bill has been drafted in the policy context of the need to minimise the burdens on the deposit libraries and the publishers. It is important that we do not introduce legislation that would undermine the commercial viability of publishing organisations—that would be stupid in the extreme. The mechanism of enacting the provisions through secondary legislation, with affirmative resolution in both Houses, will allow us to proceed incrementally to explore such issues fully
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before each set of regulations is made. I believe that that was the point made by the hon. Member for North-East Cambridgeshire.
The question of illegal use surfaces more readily with regard to electronic works. I was grateful to my hon. Friend the Member for South Derbyshire for giving us the benefit of his long experience in that area. That issue troubles me a great deal. Such illegal use could apply to a single product that has taken many years to put together, whether it be a database or a piece of scientific discourse. I know that the Patent Office does tremendous work in that area, but the Committee should also take the matter seriously. The publishing industry highlighted that concern and it is dealt with in new clause 1 on the use of non-print publications.
When making regulations, the Secretary of State will ensure that the necessary safeguards for accessing legally deposited materials are included, so that publishers can have full confidence in the security of the system. We must be able to guarantee that. We are also still considering how issues of liability and defamation can be satisfactorily resolved in the Bill. We intend to table an amendment on Third Reading to provide for that.
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