| Legal Deposit Libraries Bill
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Mr. Mole: We have listened to the particular concerns of publishers of high value material that is not sold in large volume—the sort of publishers to whom an amendment such as this might appeal. I assure them that a regulatory impact assessment will be carried out before regulations of this sort are made and that it will consider the economic impact on all publishers affected. My hon. Friend the Member for South Derbyshire talked about the volunteer nature of the traditional approach. Since 1928, prosecutions have, of course, been brought under the 1911 Act, which shows the good will that can and should continue to exist. However, that should not distract us from the requirement to have an appropriate means of enforcement for situations in which that good will breaks down. Mr. Moss: I want to tie down the hon. Gentleman. Mr. Bryant: He was going to move off, not on. Mr. Moss: Was he? Well, I caught him just in time then. What is wrong with the wording in the 1911 Act? The hon. Gentleman said that there had been no convictions, but did not tell us whether the reason for that was that the wording was no use. If, in the voluntary nature of events, it was deemed to be workable and sensible, why has he not replicated that wording in the clause? Why do we have new words? I am still waiting for a definition of the words in the Bill, because that is important to those who would be affected. Mr. Mole: We believe that a fine for the non-deposit of published materials at less than the value of the material being deposited does not serve as an Column Number: 22 incentive. We want an enforcement provision that is appropriate for the 21st century, rather than resting on the status quo of the 1911 Act.Dr. Howells: The hon. Member for North-East Cambridgeshire knows, and I know that he knows, that the fine currently enforced by the 1911 Act is £200. That was a fair wodge of money in 1911, and I imagine that if the hon. Gentleman had been a Member of this House in 1911, he would have stood up on behalf of publishers and said, “This is absolutely outrageous. We will see whole firms going bust if they have to pay out £200.” Mr. Bryant: He was probably here. Dr. Howells: He is not as old as me, and I was not here in 1911, so I do not believe that he was. We resist the amendment mainly because we believe that a fine for the non-deposit of published material that is less than the value of the material being deposited does not serve as a sufficient incentive to deposit. There would be little point to such a fine with less responsible publishers, whoever they might be. It would be far simpler and cheaper for them if they did not believe in the wisdom of the system simply not to deposit and to pay a fine that was fixed at, say, £20. We should seriously consider the fact that if the financial penalty is not as expensive or more expensive than depositing the work, some people simply will not deposit it. Mr. Moss: The Minister is mistaken—he is younger than me, but we will not go into that. The fact is, however, that there have been no convictions under the 1911 Act, so things seem to be working pretty well, whether the fine is £200 or £2,000. The amendment refers to level 1 on the standard scale, and I am not sure whether that is £200. However, it is of that order, so we are not a million miles away from what is on the statute book. I need, however, to press the Minister a little more. The Bill refers to
He does not think that that should be less than the value of the material, but people in the publishing industry have told me that some material can cost £100,000 or £200,000—huge amounts. Surely, we are not saying that the penalty for non-compliance should be of that magnitude—that would be ridiculous. There must be a limit somewhere, and I would like some indication of where it might be. The Minister or the promoter of the Bill may say that it will be set out in regulations, but the issue must be discussed fairly quickly with the interested parties. The Minister may be able to answer me now. If not, I shall withdraw the amendment. Dr. Howells: I shall try briefly to answer the hon. Gentleman. The amount of money should reflect the seriousness of the failure to deposit material that clearly should be deposited. I would be very surprised if the £200 fine had had no effect on publishers who did not want to deposit material. In the late 1970s and early 1980s, we discovered that it was a lot cheaper to Column Number: 23 publish books than booksellers had led us to believe. Publishers probably went along with the scheme because they saw the wisdom of it and knew that it was good for historians and archivists. However, £200 was also a hefty fine. Even in 1980, it would have been a lot to pay for a book that probably cost a few pence to publish.The hon. Gentleman knows that we must be serious if we are to impress on the publishers who will be caught by the Bill the fact that the national archive is so vital—my hon. Friend the Member for South Derbyshire said that we should look at the reasons for continuing with it, but that is another debate—that every inducement should be offered to ensure that they deposit material. Mr. Moss: I thought that I had withdrawn the amendment before I sat down, but I return to what the Minister said. We recognise the fact that the fines should be a of a magnitude that makes sense and of which the industry takes note. I said that this was a probing amendment to ascertain the scale of the fines, which we do not know at this stage. As the Minister said, that will be determined through negotiation and consultation and set out in the regulations. It is important that we arrive at a sensible level. It may well be that valuable publications—particularly online stuff—do not fall within the definition of what must be deposited, but we will remain in the dark about what is caught by the Bill until we get the relevant regulations. Mr. Andrew Lansley (South Cambridgeshire): I am sorry to delay my hon. Friend, who was concluding. Is he, like me, a little confused? He probably is not, so perhaps he can help me. On the face of it, the clause says that a court—a county court in England—can make orders requiring a publisher either to deposit or, under subsection (3), to pay a certain amount. Subsection (3) seems to deal not with a penalty but with a set of circumstances in which the publisher cannot comply with an order to deposit his publication. We are proceeding on a slightly curious basis in that in all circumstances such matters must result in a penalty. Mr. Moss: I thank my hon. Friend for his contribution. I had not thought of such matters in those terms. Under subsection (2), the court can order the publisher to comply. If there were no compliance with the order, I presume that the court would impose a fine. What would be the magnitude of the fine? It is not determined in the Bill. Instead, we are told that it will be determined in regulations. It has been pointed out to me that some online published material is extremely valuable and is sold for large sums of money. At present, because there is nothing to say that that should not be deposited, those involved in that line of business are fearful that the definition is so open-ended that a huge penalty may be imposed on them if they do not comply. Moreover, they do not know whether they will have to comply as online businesses, as that is left to be determined in regulations. Column Number: 24 Dr. Howells: I want to give the hon. Gentleman some comfort. The hon. Member for South Cambridgeshire (Mr. Lansley) drew attention to line 28, which states,
I wish to reassure the hon. Member for North-East Cambridgeshire and publishers of high-cost, low-circulation and low-volume material who may be worried about the enforcement clauses and other publishers that the economic effect on the publishers of deposit will be carefully examined through the regulatory impact assessment. They will be consulted prior to regulations being made. I have been as clear as I can be. We are aware of such problems and we will consult the publishers. Mr. Moss: I am grateful— Mr. Robert Jackson (Wantage): Would it not be possible for the regulations to take account of the fact that the commercial value of much of the material is of limited time value? Public interest is in the preservation of records. The regulations should take account of the possibility of deposit after the commercial value is expired. Is not that a way in which to handle the problem? Mr. Moss: We have almost thrashed the matter to death. I am more than grateful for the Minister’s assurance. On the basis of that and the fact that economic costs will be taken care of, I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Question proposed, That the clause stand part of the Bill. Mr. Thomas: We have a saying in Welsh: “Tri chynnig i Gymro”. It means three tries for a Welshman, so for the third time I shall return to a particular point. I do not want to bore the Committee, so I shall start from the other end. I have two worries about the enforcement clause, the first of which is about definition. My second concern is whether it is the best way in which to go about things. There is no definition of “publisher” in clause 9, which deals with definitions. I appreciate that the Bill’s approach is on the basis of material. I welcome that. The difficulty is that the Bill will amend the Copyright Act 1911 and will introduce new non-print material. It is clear that we can take a materials base in respect of non-print material, but the situation is a little more murky when we mix the two together. That is presumably why the enforcement clause defines a publisher as a person who has asked for the publication in the first place via the legal deposit library. A person would be so defined by the fact that he had been requested to make the publication available, which is a strange third dimension to be in. I wonder whether the Bill would benefit from a little more clarity in the definition of a publisher for the purposes of print and non-print material. Column Number: 25 4 pmMy second argument relates to enforcement and goes back to my earlier point. At least in the early days, there will be uncertainty over what type of material is relevant for the purposes of the Bill. With the best will and the best set of regulations in the world, many publishers and libraries will be uncertain about which items are covered. We also have the slightly different position of the legal deposit libraries. The British Library gets some material of right that the other libraries have to request. They are entitled to it, but they have to request it. A publisher may be making its non-print material available, unaware that it may fall within the regulations, but then a request may come in from, say, Trinity college Dublin or the National Library of Wales, because it hears about it and considers that the material should be covered. We should not have to go to law to sort out such matters. There should be a way of arbitrating within the regulations. The voluntary code does that. We are debating such matters without the regulations, so I am looking for assurances. There should be a stage of arbitration, decision making and mediation that will decide such matters before we reach a situation when a library, which is entitled to a publication, is demanding it and therefore putting the publisher before a Crown court or a sheriff court in Scotland. I want to hear assurances about that from the promoter of the Bill and the Minister. Mr. Lansley: I do not want to hold up the Committee but, although the structure of the clause seems to be right, it might be helpful, if not now perhaps at a subsequent stage, if the hon. Member for Ipswich or the Minister would give members of the Committee a further explanation of the manner in which they foresee enforcement working. In our previous discussion, we were proceeding on the basis that people were issued with an order to comply with their obligations under the Bill and if they wilfully failed to comply, they would be subject to a fine. If they are failing to comply with a court order, there may be a process of fines. I do not know precisely how that would work, but that is not what the clause puts in place. The clause is providing a separate mechanism by which a court or the sheriff in Scotland, instead of making an order to comply might, in the light of the circumstances, conclude that it is not practical to make such an order. Because of lack of knowledge, I am speculating over how that might work. For the sake of argument, let us say that the costs of requiring a publisher to produce another set of documents or online material would be prohibitively expensive. What may be necessary therefore would be to capture or purchase an existing publication of the series, which can be put into the archive as an alternative to republishing it. Under those circumstances, the court can go to the publisher and require it to pay the amount that it will cost the library or libraries to secure that publication on the open market. Those are the circumstances that we are talking about. It might be expensive to do it in Column Number: 26 that way, but it seems to be a reasonable basis for proceeding if the publisher has failed to meet an obligation.That seems to be the structure, but that is not the basis on which we have been discussing matters. I am not sure that the Minister’s assurance about the regulations fits the bill, unless he is telling us that when regulations are being made about what publishers have to deposit with libraries by virtue of the Bill, regard will be had to the cost and availability of that published material so that publishers are not required to deposit material that would be prohibitively expensive for them to produce to do so. If I am setting out the Bill correctly, I will be happy with it. I just wanted to be sure, because it did not seem as though our previous discussion reflected that structure. Dr. Howells: I followed the hon. Gentleman’s argument with a great deal of interest because although the Bill is not mine, the flexibility that it includes seems to meet hon. Gentleman’s concerns. In particular, subsection (3) says,
That flexibility could well mean that there can be the system of arbitration that the hon. Gentleman properly seeks. It is always possible for the libraries and publishers to agree to go to voluntary arbitration if the publishers do not want to deposit. The libraries do not have to go to court immediately and even if they do, the court might choose not to order deposit under subsection (2), or payment under subsection (3). The court may decide that there is another way of approaching the problem. I hope that the hon. Gentleman agrees that that degree of flexibility could offer a way of continuing the sensible approach that has operated until now. Although there may not have been any cases since 1928, there have certainly been disputes about what should be deposited and what has not been deposited. Generally, however, those disputes have been settled to the benefit of both sides. Mr. Thomas: If a publisher fails to obey a court order, will he or she be subject to any financial or other penalty? Dr. Howells: I should think that if I stood here and told the hon. Gentleman, “No, they wouldn’t”, whatever enforcement clout there might be behind the Bill would evaporate immediately. I would expect there to be a financial penalty substantial enough to ensure that the material that should be deposited is deposited. Mr. Thomas: That was my interpretation; that is, that the payment is an alternative to a court order and not the fine. In that case, could either the hon. Member for Ipswich or the Minister say how the decision about the exact sum of money will be made? Will that be through regulations or is it set out in another statute? Dr. Howells: It is not set out in another statute, but currently exists as a penalty of £200, which is based on the 1911 Act. As I am sure the hon. Gentleman will Column Number: 27 know, a refusal after a court decision would be a contempt of court. The party—individual or company—would then be liable to a fine or imprisonment. How much the sum to which the hon. Gentleman referred should be is and must be a matter for regulation. We must retain a degree of flexibility on that because matters will vary from case to case. As I told the hon. Member for North-East Cambridgeshire in an earlier debate this afternoon, I am keen that that flexibility should remain and that we should be able to proceed on a case-by-case basis. As the hon. Member for Ceredigion pointed out, there will be an infinite variety of material to be deposited. Given the importance of that material’s deposition, we must ensure that a degree of flexibility is available to those who arbitrate on what ought to be the proper level of the penalties imposed.Mr. Allan: On what happens if there is a contempt of court, the Minister referred to regulations. The Bill does not seem to suggest that regulations would deal with contempt of court. The Bill merely provides that if there is a failure to reach agreement and someone goes to court, the court will make an order. If anyone acts in contempt of that order, my reading is that it would be entirely up to the judge to decide what should happen. We do not say what should be the ultimate penalty; we have left it entirely to the legal authorities. I hope that that is the correct interpretation. Dr. Howells: Yes, indeed. That is a helpful explanation of what happens when contempt of court takes place. The amount to be paid under subsection (3) would be ordered by the court. The hon. Gentleman is right to say that we cannot fix that sum here and now. Brian White: One difficulty that may arise is that it may not be the material to be deposited that is in breach but the retrieval systems through which it can be used. Will there be separate penalties for the material and the mechanism? Dr. Howells: That is a good point, and I am sure that my hon. Friend the Member for Ipswich will be able to answer it shortly. However, it raises a question similar to that raised by the hon. Member for Ceredigion. It is no good depositing material if the library and its readers or researchers cannot access it. The common sense and official arbitration system that have made the current system a success should continue. The hon. Member for Ceredigion asked who is a publisher. I put it on record that we shall attempt to clarify that subject as well as the cross-border issues raised by the hon. Member for North-East Cambridgeshire before Report and Third Reading. The intention is to catch only material published in the United Kingdom and not material available in the UK—which would include everything on the internet. MP’s websites could be caught, and that may feature in early regulations. Column Number: 28 Mr. Mole: It was not my intention to do more than move that the clause stand part. My hon. Friend the Minister has, by and large, dealt with the many interesting, relevant and important points raised by hon. Members, who articulated effectively how the enforcement regime should operate. That leaves me only two things to say. First, I hope that the enforcement regime operates primarily in a way that encourages deposits, and that it does not concentrate on imposing fines and penalties. Secondly, I draw the attention of my hon. Friend the Member for Milton Keynes, North-East (Brian White) to new clause 1(4) (b)(ii), which requires the deposit of computer programmes that allow access to the deposited material. I appreciate the sensitivities and difficulties associated with such a provision, but it is a necessary component of being able to read deposited material that would otherwise have no value. It should be treated in a manner equivalent to the deposited material. Question put and agreed to. Clause 3, as amended, ordered to stand part of the Bill. Clause 4 PRINTED PUBLICATIONS: THE BRITISH LIBRARY Question proposed, That the clause stand part of the Bill. Mr. Mole: The clause deals with the means by which the British Library board is entitled to receive copies of every work published in print. I take the opportunity to return to a point raised by the hon. Member for Ceredigion about the usual practice of deposit libraries of purchasing supplementary copies of publications to make them more widely available—when appropriate and with the publisher’s agreement. That regime will be extended in other clauses to act as a general approach. A copy of the printed publication must be delivered to the British Library within a month of publication, and that copy must be of the same quality as the best copies published in the United Kingdom at that time. The British Library board must provide a receipt for the deposited printed works received. The clause effectively replicates the provisions under the 1911 Act. Question put and agreed to. Clause 4 ordered to stand part of the Bill. Clause 5 PRINTED PUBLICATIONS: OTHER LIBRARIES 4.15 pmMr. Moss: I beg to move amendment No. 12, in
The Chairman: With this it will be convenient to discuss: Column Number: 29 Amendment No. 13, in
Mr. Moss: This is a probing amendment to question whether we should continue the traditional and historic method, enshrined in the 1911 Act, of depositing to all deposit libraries. If we are to involve far greater numbers of people—publishers of all kinds of material, although this relates mainly to print publishers—should material in this day and age be sent to all libraries or just to the British Library and one or two other key libraries? Why do we have to replicate what is in statute? I understand the argument that the receiving libraries will jealously guard their well-earned rights to material, but it places a cost on the publishing industry, which will escalate as the volume of material grows in future. Mr. Thomas: I rise to oppose fiercely the amendment. I am jealous of the rights and privileges of the National Library of Wales not only because I am a Plaid Cymru Member of Parliament, but because the library is in my constituency. Indeed, I worked in the library and I can see it from my house whenever I am at home. Mr. Moss: I am happy to intervene to assure the hon. Gentleman that I had no intention of involving the National Library of Wales in this. Mr. Thomas: In which case, I suspect the hon. Gentleman had Oxford and Cambridge libraries in mind. He can take that up with his hon. Friends, as more members of his party than of mine attended those august institutions. I accept that the amendments are probing, but there are a few key points to be made about them. First, if the amendments were seriously considered, it would significantly weaken the 1911 Act. We must stop and ask ourselves why we would want to do that. From my discussions with the National Library of Wales, I am aware that it opposes the amendments and I know that they have not been discussed with the legal deposit libraries. We have heard a little about the importance of having discussions with publishers, but it is also important to have discussions with librarians. If these matters were discussed with librarians, they would be able to explain some good, as well as the purely patriotic, reasons for national institutions. We need look no further than at what happened in Iraq with the desecration of libraries and museums in the last few days and weeks of the war to realise that libraries, institutions and learning are fundamental to our culture. They are a form of preservation and a practical means of ensuring that there is more than one copy of each publication in more than one place. The great library of Alexandria burned down and we lost all the knowledge that it had taken several hundred Column Number: 30 years to gain. We therefore need more than one legal deposit library, and we need to consider where those libraries should be based.The United Kingdom is made up of four countries that have come together—we have only to go to the Central Lobby to see the four saints representing those countries. It would therefore be reasonable to have four legal deposit libraries. There are also ancient institutions that have certain privileges that perhaps they should not have, but the Bill is not the place to start potching with Oxford and Cambridge. Those institutions deserve our consideration at another time. Mr. Mole: Does the hon. Gentleman accept that the hon. Member for North-East Cambridgeshire may have a genuine concern that although the deposit libraries in Oxford and Cambridge as academic institutions might have an interest in the purchase of some of the published materials, any crossover between other parts of those universities to make any of the deposit material more widely available would be inappropriate? Would he, like me, seek a reassurance from the Minister that the regulations would go someway to ensure that that never happened? |
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Prepared 6 June 2003 |
