I beg to move amendment No. 1, in

clause 3, page 2, line 18, before ‘“the’ insert ‘in this section,’.

The amendment clarifies the meaning of the term “publisher”, and is necessary because of revisions elsewhere in the Bill. It is a technical amendment to make it clear that the definition of publisher in clause 3 is specific to that clause.

I was rather ahead of myself in asking this question earlier, so I will now return to it. I do not believe that my question on appeals and arbitration is provided for in clause 3, and there are no amendments to deal with the matter. However, I want it to be put on record that I would like the DCMS, the Minister and the promoter to consider the matter. We are discussing a statutory process in which, if a legal deposit library feels that someone has failed, there is a procedure for it to go through to ensure that it receives a copy of a publication or its equivalent.

I hope that the hon. Gentleman appreciates that the Bill tends to focus on the publications rather than the publishers, but that in this clause the specific identification of the publisher is required. Elsewhere in the Bill, the intention is to retain as flexible an interpretation as possible, because of the questions raised earlier as to who constitutes a publisher, with reference, for example, to the websites of Members of Parliament.

I thank the hon. Gentleman for that point, which I accept, and to which I intend to return. However, the point that I tried to make earlier—

Order. If the hon. Gentleman wants to discuss the clause, I suggest that he postpones his remarks until the clause stand part debate. At present, we are discussing amendment No. 1, and the proper procedure is for us to debate that amendment first.

Amendment agreed to.

I beg to move amendment No. 11, in

clause 3, page 2, line 21, leave out subsections (2) and (3) and insert—

‘()If a publisher fails to comply with this section, he shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale and the fine shall be paid to the British Library Board or authority to whom the book ought to have been delivered.’.

This is a probing amendment, through which we seek clarification as to the meaning of some of the words in lines 29 and 30. The amendment sets out clearly that a criminal conviction will be the result of enforcement. I understand that in the past the matter has been dealt with in a civil court, but we were concerned that the words used in the Bill left the matter open ended. The question is whether the cost of making good the failure to comply is simply the cost as defined by the library, or whether it is the cost or the price of the material that is being held. The meaning is not clear from the wording. The amendment is therefore intended to probe for a clear definition of those words, as there are obvious implications for certain publishers. There would be enormous financial consequences for them if the clause was interpreted in the wrong way.

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.

I want to tie down the hon. Gentleman.

He was going to move off, not on.

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.

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

incentive. We want an enforcement provision that is appropriate for the 21st century, rather than resting on the status quo of the 1911 Act.

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.”

He was probably here.

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.

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

“the cost of making good the failure to comply”.

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.

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

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.

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.

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.

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.

I want to give the hon. Gentleman some comfort. The hon. Member for South Cambridgeshire (Mr. Lansley) drew attention to line 28, which states,

“the court or sheriff may instead make an order requiring the publisher to pay to the library an amount which is not more than the cost of making good the failure to comply.”

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.

I am grateful—

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?

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.

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.

My 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.

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

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.

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,

“the court or sheriff may instead make an order requiring the publisher to pay to the library an amount which is not more than the cost of making good the failure to comply.”

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.

If a publisher fails to obey a court order, will he or she be subject to any financial or other penalty?

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.

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?

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

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.

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.

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.

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?

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.

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.