I beg to move amendment No. 15, in

clause 8, page 5, line 19, leave out subsection (7) and insert—

‘(7)Regulations under this Act may not be made unless the Secretary of State has consulted the Technical Advisory Committee in accordance with section 9(3) and he is satisfied, and the Technical Advisory Committee has advised him that it is satisfied, that the Regulations—

(a)are proportionate to what is sought to be achieved by them in respect of the preservation of the national intellectual archive;

(b)are practicable and not excessive for the publisher required to comply with those Regulations; and

(c)do not conflict with the normal exploitation of any work, or category of work, to which this Act applies or would unreasonably prejudice the legitimate interests of the owner(s) of the copyright or any rights of a similar nature in any such work;’.

With this it will be convenient to discuss the following:

New clause 3—Technical advisory committee—

‘(1)There shall be a Technical Advisory Committee consisting of such number of persons appointed by the Secretary of State as he may by order provide.

(2)The order providing for membership of the Technical Advisory Committee must make provision calculated to ensure that the Technical Advisory Committee has sufficient powers to enable it to oversee the operation of the deposit of publications as provided under this Act.

(3)The order providing for membership of the Technical Advisory Committee must also make provision calculated to ensure—

(a)that the membership of the Technical Advisory Committee includes persons likely effectively to represent the interests of publishers and deposit libraries;

(b)that the membership of the Technical Advisory Committee includes persons with the appropriate breadth of technical and business skills and experience;

(c)that such other person(s) if any as the Secretary of State thinks fit may be appointed as members of the Committee;

(d)that the Committee has an independent chairperson;

(e)that the Committee is constituted as to produce a balance between the representation of the interests of publishers and deposit libraries;

(4)Where the Secretary of State proposes to make any Regulations under this Act, or if the Technical Advisory Committee considers it timely and appropriate for the Secretary of State to make any Regulations under this Act,

(a)he shall consult the Technical Advisory Committee about the consequences of the making of any such Regulations for the deposit libraries and for the publishers that may be affected by those Regulations;

(b)the Technical Advisory Committee shall consult with the deposit libraries and with the publishers likely to be affected by those Regulations;

(c)he shall commission the carrying out of a Regulatory Impact Assessment following the consultation as mentioned in Subsection (4)(b) above, to assess the costs of compliance, technical feasibility and the impact of any Regulations on publishers’ legal and contractual obligations;

(d)the Technical Advisory Committee shall, inter alia, consider—

(i)the technical requirements and the financial consequences, if any, for the deposit libraries and for the publishers likely to be affected, of those Regulations;

(ii)whether the way in which those Regulations make provision as to the circumstances in which works published on line are treated as published in the United Kingdom is such as to exclude works that are accessible from, but not also published in, the United Kingdom and to exclude works that are not made available to the public;

(iii)whether the requirements under those Regulations are proportionate to what is sought to be achieved by them in respect of the preservation of the national intellectual archive;

(iv)whether the requirements under those Regulations are practicable and not excessive for the publisher required to comply with them and whether they impose a method of deposit that causes the least burden to the such publisher; and

(v)whether the making of any such Regulations, or any part of them, would conflict with the normal exploitation of any work, or category of work, to which this Act applies or would unreasonably prejudice the legitimate interests of the owner(s) of the copyright or any rights of a similar nature in any such work.

(5)The Technical Advisory Committee shall report their conclusions on those matters to the persons mentioned in subsection (3)(a) and to the Secretary of State, and the Secretary of State, after considering any report of the Technical Advisory Committee, may either—

(i)withdraw the proposed Regulations; or

(ii)proceed with those Regulations subject to such modifications as the Secretary of State sees fit in order to take account of the conclusions of the Technical Advisory Committee as stated in any such Report.’.

We have already touched on the substance of the amendment in our opening debate. It is important, particularly in respect of the relationship between the libraries, the publishers and the Department for Culture, Media and Sport. Subsection (7) refers to regulations that the Secretary of State may bring forward, but only if he or she has first consulted the deposit libraries and, more importantly given the worries that have been raised,

“the publishers appearing to the Secretary of State to be likely to be affected.”

Amendment No. 15 would firm up the consultative relationship in two ways. First, it would put the advisory committee, the body that will develop from the joint committee on voluntary deposits, into the Bill. Secondly, the amendment highlights two critical areas that are fundamental to the publishers’ rights, such as proportionality. It refers to the Secretary of State being satisfied that the regulations

“are proportionate to what is sought to be achieved by them in respect of the preservation of the national intellectual archive”.

That wording was lifted almost verbatim from the Regulation of Investigatory Powers Act 2000, which refers to proportionality in a way that might help draftsmen incorporate it into the Bill.

We are not asking for something that is not already on the statute book. Section 22(5) of the Act states:

“The designated person shall not grant an authorisation under subsection (3), or give a notice under subsection (4), unless he believes that obtaining the data in question by the conduct authorised or required by the authorisation or notice is proportionate to what is sought to be achieved by so obtaining the data.”

Similar words applied to clause 8 of the Bill will give the assurance that publishers seek.

Amendment No. 15 refers to the Secretary of State being satisfied that the regulations

“do not conflict with the normal exploitation of any work, or category of work, to which this Act applies or would unreasonably prejudice the legitimate interests of the owner(s) of the copyright or any rights of a similar nature in any such work”.

It concerns anything that might prejudice the economic viability of the publishing organisation. There is similar wording in the Copyright, Designs and Patents Act 1988, section 137 of which states:

“If it appears to the Secretary of State with respect to a scheme or licence to which this section applies that ... making them subject to the scheme or licence would not conflict with the normal exploitation of the works or unreasonably prejudice the legitimate interests of the copyright owners”.

We have taken wording from existing legislation that protects the two key issues of proportionality and copyright benefit and included it in amendment No. 15.

We are talking about regulations that may or may not be brought forward by the Secretary of State.

New clause 3 would define the committee, which is a group of people whom the Department will consult and includes the publishers and the libraries. It is an extension of the excellent work that those bodies have already done in bringing forward the Bill. New clause 3 defines a technical advisory committee. The Minister said earlier that he takes on board the need for the consultation and the immediacy of it. It is to be hoped that in response to the amendments he will go into more detail about how he sees that moving forward.

The important thing about new clause 3 is not so much the composition of the committee or the fact that it will be consulted on certain issues, but that it points up the key areas that need to be discussed. They are outlined under proposed subsection (4)(d)(i) to (v) and relate to a regulatory impact assessment, particularly on online publication. The need to define UK based authorship or origination has not yet been decided. Subsection (4)(d)(iii) concerns proportionality and paragraph (iv) is about practicality and the fact that the regulations will not be excessively heavy on the publishers. Paragraph (v) is about copyright protection, which I have already dealt with. Those are the key areas that must be discussed.

We want the Bill to recognise the importance of the committee. Hence, our new clause and amendment No. 15. We understand that there are “technical problems” with doing that, because of Treasury and cost implications. No doubt the Minister or the Bill’s promoter will explain that to us. We are looking for some movement from the promoter towards the publishing community in respect of those key issues. If it can obtain assurances on some of those issues, particularly proportionality and copyright protection, many of the community’s fears and concerns will abate. We have reached an important stage. If we can confront such issues—perhaps not this afternoon, but before the Bill is discussed on Report—we have every chance of making good legislation, which is what we all want.

I stated earlier that I considered the hon. Gentleman’s amendment on constructing an advisory committee to be a helpful guide to how best such a vital job may be carried out successfully. I thank him for drafting it. While I am in favour of the existence of an advisory committee, I do not believe that it should be constituted in primary legislation. If that were done, it would effectively reduce the flexibility of the committee and the Secretary of State. Given that every effort has been made to future proof the Bill, I believe that the proposal would be counter-productive.

The constitution of the committee and its functions may need to change over time, sometimes quite radically. I assure the Committee that the Government are intending to establish such a panel to advise the Secretary of State on drawing up regulations relating to legal deposit and subsequent implementation. Such a panel will be made up of representatives of the publishers and the deposit libraries as well as other key stakeholders. However, to enable it to operate in the ever-evolving world of non-print publication and to continue to represent those bodies with an interest in the legislation, we do not consider that the committee should be established in primary legislation. It is also important that some consultation takes place with interested parties that might not be represented on the advisory panel. The existing provisions are preferable to the proposed amendment.

New clause 3 would constitute a technical advisory committee in primary legislation. The hon. Gentleman obviously does not agree with me, but I believe that it is an inflexible solution to what could and should be achieved flexibly. It would constitute an advisory panel in the same way in which the advisory panel on Crown copyright was constituted. Doing that in the Bill would leave no opportunity to put things right if it was found that the committee, as originally set up, did not work for whatever reason. The libraries and the publishers would have to live with it until primary legislation could change it. That is why my Department advocates maximum flexibility. We believe that it is right that there should be some good consultation with interested parties before the committee is established and its terms of reference fixed. There would be no opportunity for such consultation if the new clause was accepted.

As I said, I wholeheartedly support the setting up of a committee or a panel to advise the Secretary of State on drafting the regulations. However, the committee must be given every opportunity to be a success and should not be limited through any inflexible legislation. I am fully aware of the difficulties of legislating on the online environment, so expect there to be extensive consultation with the committee and elsewhere in excess of the usual 12-week consultation period before any regulations are prepared to deal with the online environment, about which the hon. Gentleman is especially concerned.

I am most grateful for the Minister’s assurances. We know that he is an extremely honourable man and will carry this through, provided, of course, that he is still in post. He has done some sterling work recently with the Communications Bill and Licensing Bill, and may well be promoted in the next few weeks. To whom will we turn then? For the benefit of the Committee, as well as those who take an interest in these things and who will be avidly reading Hansard tomorrow, if there is a change in circumstances and in the personnel of his Department, the commitment that he has given today about the committee or panel—call it what one will—which he hopes to form very quickly, is really a commitment given by the Secretary of State and the Department. Heads are nodding on the Government Benches. It would be nice to have the words in print and perhaps the Minister can provide them in his response.

I am happy to give the hon. Gentleman that assurance. I am in constant contact with my boss, the Secretary of State, who has closely examined the Bill as we are very interested in the subject. She is in Liverpool today celebrating with that city the decision to award it capital of culture, so I am giving an undertaking on her behalf that we will move things forward, as I described.

I am most grateful to the Minister for putting that on the record. Does he accept that the areas set out in new clause 3(4)(d)(i) to (v) are vital to the discussions that the panel or committee will undertake? Will he tell the Committee what importance he attaches to the key questions of proportionality and copyright protection? That might help the Committee to determine what it will do next or in preparation for Report. Some reassurance would be helpful.

I will gladly give that reassurance. As I said, this is a good skeleton for setting up an advisory committee. It certainly addresses some key issues that must be addressed in the consultation before the committee or panel is set up, as well as being the meat of the committee when it begins its work.

I thank the Minister for that assurance. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 5, in

clause 8, page 5, line 23, at end insert—

‘()Regulations under this Act which confer an entitlement on the authority controlling the Library of Trinity College, Dublin may not be made unless the Secretary of State is satisfied that the restrictions on use of relevant material imposed by the laws of Ireland are not substantially less restrictive than those imposed by the laws of any part of the United Kingdom.’.

The amendment would add a provision that a deposit with Trinity college Dublin will be required only if the restrictions on the use of the material imposed by Irish law are not substantially less restrictive than those imposed by UK law—the so-called switch. Publishers have rightly been concerned about depositing in a foreign country, and the amendment will ensure that they are as fully protected in Eire as in the UK.

Something has just struck me about the amendment. I am looking for confirmation that it applies only to non-print material and that the hon. Gentleman does not foresee a change to the legal deposit of printed books in Dublin.

I should like to add my three-pennyworth to the debate. I understand that defamation laws in Ireland are stronger than ours. Non-print material that could easily be deposited in the UK could cause problems in Dublin that might not arise here. It would be worth thinking at some stage of building into the clause the fact that publishers should take cognisance of the defamation law in Ireland before sending things to Dublin.

In answer to my hon. Friend the Member for Ceredigion, my understanding is that the amendment would have no effect on printed material.

The hon. Member for North-East Cambridgeshire makes an entirely valid point about defamation, which will be taken into consideration in due course.

Amendment agreed to.

I beg to move amendment No. 6, in

clause 8, page 5, line 27, at end insert—

‘()In this section “relevant material” has the same meaning as in section (Use of nonprint publications).’

This a technical amendment consequent upon amendment No. 5. It clarifies the term “relevant material” in relation to deposit in the Republic of Ireland.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

The clause now enables different provisions to be made for different purposes, including for different media, descriptions of work and deposit libraries, and it may make exceptions to the general provisions. Regulations will not be made without the consent of the National Assembly for Wales or the Scottish Executive, if the regulations remove or do not confer entitlements on the National Library of Wales or Scotland, respectively. There will be no obligation to obtain that consent where the national libraries, or the Faculty of Advocates in the case of legal publications, have access to electronic works by electronic means.

In all other cases, the National Assembly and Scottish Ministers must be consulted if the regulations would affect the national libraries in any way. It is also necessary to consult the deposit libraries and those publishers most likely to be affected before regulations can be made. I thank my hon. Friend the Minister for his words of reassurance.

The hon. Gentleman was describing clause 8 in the same terms as the explanatory notes, but that does not reflect precisely the terminology of the clause itself. Subsection (1) states:

“different provision for different purposes ... different media, descriptions of work, deposit libraries or areas”.

What does the hon. Gentleman mean by “or areas”? Does he mean different countries within the United Kingdom, or does he propose some sort of geographical disparity in treatment? I am slightly surprised that those words should have been included. The power to differentiate the various deposit libraries is clear. How would areas be interpreted in that context?

I hope that the Minister can give us a brief explanation of that. I cannot put my hand on the exact interpretation of area in that context. It may well refer to different areas of works. To finish what I was saying, I reiterate what my hon. Friend the Minister said about approval by the House of draft regulations.

I am reliably informed—this is not the first time that I have answered questions from the hon. Member for South Cambridgeshire in this way—that what we are discussing may be able to be removed as a result of the removal of clause 7. We will certainly consider that word before Report.

Question put and agreed to.

Clause 8, as amended, ordered to stand part of the Bill.