House of Lords - Explanatory Note
      
House of Lords
Session 2002 - 03
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Arrangement of Clauses (Contents)

Legal Deposit Libraries Bill


 

These notes refer to the Legal Deposit Libraries Bill
as brought from the House of Commons on 7th July 2003 [HL Bill 91]

LEGAL DEPOSIT LIBRARIES BILL


EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Legal Deposit Libraries Bill as brought from the House of Commons on 7th July 2003. They have been provided by the Department for Culture, Media and Sport with the consent of the Lord Tope, the Member in charge of the Bill, in order to assist the reader of the Bill and to help inform debate upon it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill, so where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

3.     The Bill re-enacts (with minor amendments) the existing obligation to deposit printed publications in six nominated depositories (which are known as legal deposit libraries), and enables the Secretary of State to make regulations extending the system of legal deposit to non-print material.

BACKGROUND

4.     Under section 15 of the Copyright Act 1911, a copy of each book or serial or other printed publication which is published in the UK is required to be deposited, free of charge, in the British Library. Under this, five other libraries (the National Libraries of Scotland and Wales, and the University libraries of Oxford, Cambridge and Trinity College Dublin) are each entitled to receive, on request, one free copy of any book or other printed publication published in the UK. These libraries, together with the British Library, are collectively known as the legal deposit libraries (or deposit libraries).

5.     Section 15 of the Copyright Act 1911 applies only to works in printed form. Since the development of new media and the growth of publication in non-print forms, the existing

legislation has ceased to be adequate to ensure the continuation of a comprehensive archive of the nation's published material.

6.     The purpose of the Legal Deposit Libraries Bill is to give the Secretary of State power to extend the system of legal deposit progressively and selectively to cover various non-print media as they develop, including off-line publications (e.g. CD ROMS and microforms), on-line publications (e.g. e-journals) and other non-print materials. This will ensure that publications of significance are collected, regardless of the medium in which they are published, and are preserved as part of the national archive of UK publications, so as to remain available to future generations of eligible users. It is assumed that initial regulations will be restricted to off-line publications.

OVERVIEW

7.     The Bill has 17 clauses: Clauses 1-3 set out the duty to deposit and the method of enforcing that duty; Clauses 4 and 5 preserve the existing framework set out in section 15 of the 1911 Copyright Act regarding print; Clauses 6 - 8 set out the framework for non-print publications; clauses 9 and 10 deal with exemptions from liability for the publishers and the libraries; clauses 11 - 13 deal with the making of regulations. The final clauses deal with general issues of interpretation (clause 14), consequential amendments, repeals and revocations (clause 15), commencement and extent (clause 16) and short title (clause 17).

COMMENTARY ON CLAUSES

Duty to Deposit

Clause 1: Deposit of publications

8.     This clause imposes a duty on publishers to deposit any published material with the deposit library (or libraries) that is (or are) entitled to receive a copy of that material in the medium in which it is published (except for on-line publications, where the medium of deposit is specified in regulations under clause 6(2)(h)). Such deposit must be at an address in the United Kingdom to be specified by the library (or else, in the case of electronic material, at an electronic address).

9.     The clause describes the types of printed material that must be deposited, and provides that non-print works that are prescribed by Regulations must also be deposited. It specifically addresses the issues of sound and film recordings, identifying the limited circumstances under which these will be covered: when they are incidental features of the main body of a work and not its purpose.

Clause 2: New and alternative editions

10.     This clause addresses the issue of duplicate publications and provides that it is not necessary to deposit a new edition of a work if it is substantially the same as one already published in that medium. It enables the Secretary of State to determine the circumstances under which a work is to be considered 'substantially the same' as a previously published work and to determine which medium should be deposited where the same work is published (or works that are substantially the same are published) in different media.

Clause 3: Enforcement

11.     This clause lays out those measures that can be taken if a publisher fails to deposit. The library will be able to apply to the county court (or to the sheriff court in Scotland) for an order requiring deposit. In those instances where such an order would not be effective or appropriate, the court may make an order requiring the publisher to make a payment equivalent to the cost of making good the failure to comply.

Printed Publications

Clause 4: Printed publications: the British Library

12.     This clause describes the means by which the British Library Board is entitled to receive a copy of every work published in print. The copy must be delivered to the British Library within a month of publication; the copy must be of the same quality as the best copies published in the United Kingdom at that time; and the British Library Board must provide a receipt for the deposited printed works received.

Clause 5: Printed publications: other libraries

13.     This enables each of the other five deposit libraries (the National Library of Scotland, the National Library of Wales, the Bodleian Library, Oxford, the University Library, Cambridge and the Library of Trinity College, Dublin) to request a copy of each printed work. Such request must be in writing, may be made before publication but may not be made more than 12 months after publication and can cover all future numbers or parts of an encyclopaedia, newspaper, magazine or other work. The deposit must be made within a month of publication or of receipt by the publishers of the request. The copy deposited must be of the same quality as the largest number of copies published in the United Kingdom at the time of delivery.

Non-Print Publications

Clause 6: Regulations: deposit of non-print publications

14.     This sets out the types of regulations that the Secretary of State can make in relation to the deposit of non-print material. Subsection (1) gives a general power to the Secretary of State to make regulations regarding the duty to deposit non-print material. Subsection (2) sets out the type of things that the Secretary of State may include in regulations: to determine how and when a non-print publication must be deposited; an obligation to provide the information necessary to make the work accessible; the timing of deposit; the means of delivery of the work; the quality of the copy; the format of deposit (where a work is published in different formats). Under subsection (2), the Secretary of State may make regulations to determine which on-line publications are to be considered as published in the UK and to specify the medium in which such publications are to be delivered.

Clause 7: Restrictions on activities in relation to non-print publications

15.     This provides that the libraries, persons acting on their behalf and readers may not do any of the activities listed in subsection (2) - using the material, copying it, adapting any accompanying computer program or database, lending it to a third party, transferring it to a third party, disposing of it - unless authorised by regulations.

16.     Those regulations may make provision (under subsection (4)) about the purposes for which the deposited material may be used; the time at which readers may first use the material (thereby allowing embargoes to be established); the description of readers that may use the material and limitations on the number of readers that may use the material at any one time (which will enable cross-library limits to be imposed if there is a secure network, in addition to limiting the number of people that may access the material simultaneously in any particular library).

17.     The clause provides that the Faculty of Advocates, which acts as the deposit library for legal publications in Scotland, is deemed to be a deposit library for these purposes in respect of the legal publications it holds.

18.     It also makes it clear that a contravention of the clause will be actionable as a breach of statutory duty.

Clause 8: Activities in relation to non-print publications

19.     This clause inserts section 44A, a new exception to copyright, into Chapter 3 of Part 1 of the Copyright, Designs and Patents Act 1988 so that activities permitted by regulations made under clause 7 will not infringe copyright. As non-print material may also or alternatively be protected by database right, this clause additionally inserts a new exception to database right into the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) in respect of activities permitted by regulations made under clause 7.

20.     New section 44A also provides a power to make regulations under the 1988 Act to stop one or more of the exceptions to copyright in Chapter 3 of Part 1 of the Act applying, or restrict the way they apply, to non-print material covered by clause 7. These regulations could be used to ensure that copyright exceptions apply no more generously to deposited material than to material that has been purchased, for example, copyright material published online which may only be available in normal libraries under a contract that removes the ability to enjoy some copyright exceptions, so that all readers must pay for any material they copy.

Exemption from liability

Clause 9: Exemption from liability: deposit of publications etc.

21.     The effect of this clause is that compliance with clause 1 will be taken not to breach any contract relating to any part of the work nor to infringe any copyright, publication right database right or patent in any part of the material.

Clause 10: Exemption from liability: activities in relation to publications

22.     The effect of this clause is that deposit libraries will only be liable for defamation resulting from activities relating to deposited material within the libraries, where they know or ought to know that the material is defamatory and have had a reasonable time to prevent that use.

23.     A publisher will only be liable for defamation arising out of activities relating to the material within the libraries where it knows or ought to know that the material is defamatory, and has had a reasonable opportunity to inform the libraries of this, but has not done so.

24.     Subsection (5) makes provision for regulating "web harvesting" by deposit libraries, that is copying material directly from the internet. Where the copying is in accordance with regulations under this subsection, the restrictions and exemptions created by clauses 7 and 8 and subsection (6) of this clause will apply. The regulations will set out the description of works that may be so copied (which must have a connection with the United Kingdom), and any conditions imposed on the copying.

25.     Under subsection (6), only the libraries can be liable for defamation arising out of material so copied, and they will only be liable in the same circumstances as for material that is deposited.

26.     To ensure, where necessary, that depositors of publications do not incur additional liabilities as a consequence of access through deposit libraries, subsection (8) enables the Secretary of State to make regulations extending the exemption from liability for defamation to other liabilities.

Regulations

Clause 11: Regulations: general

27.     This enables different provisions to be made for different purposes, including for different media, descriptions of work, deposit libraries and areas, and allows for regulations applying only in some cases or subject to exceptions. Regulations may not be made unless the Secretary of State has consulted the deposit libraries and the publishers likely to be affected. In addition the Secretary of State intends to establish an advisory panel made up of members of the deposit libraries, the publishing industry and others, to advise her on all aspects of the regulations.

28.     Regulations applying the Bill to non-print material (made under clause 1(4) and under clause 6) must not apply to works published before the regulations are made.

29.     Regulations applying the Bill to non-print material and those dealing with duplicate works (made under clause 2) may only be made where the Secretary of State considers that the costs likely to be incurred by the publishers are not disproportionate to the benefit to the public arising from the deposit of the works.

30.     Regulations applying the Bill to non-print material, dealing with duplicate works, dealing with use of the material (under clause 7), or providing for web harvesting (under clause 10(5)) may only be made where the Secretary of State considers that they do not unreasonably prejudice the interests of the publishers.

31.     All regulations must be approved in draft by both Houses of Parliament before being made.

Clause 12: Regulations: Scotland and Wales

32.     Regulations may not be made without the consent of the National Assembly for Wales or the Scottish Ministers, where 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 in relation to electronic publications where the National Libraries (or the Faculty of Advocates in the case of legal publications) have access to the publications by electronic means.

33.     In all other cases the National Assembly and the Scottish Ministers must be consulted if the regulations would affect the National Libraries in any way.

Clause 13: Regulations: Trinity College, Dublin

34.     Publishers can only be required to deposit non-print material with Trinity College, Dublin if the Secretary of State is satisfied that restrictions on activities in relation to the material under Irish law are not substantially less than those provided by clause 7, that the protection of intellectual property rights in the material under Irish law is not substantially less than that provided under the laws of any part of the United Kingdom, and that the protection from liability under Irish law is not substantially less than that provided by subsections (3)and (4) of clause 10.

General

Clause 15: Consequential amendments, repeals and revocations

35.     This sets out the consequential amendments to the National Library of Scotland Act 1925, providing for legal publications to be deposited with the Faculty of Advocates, and together with the Schedule, those provisions which are to be repealed or revoked as they are superseded by the Bill.

Clause 16: Commencement and extent

36.     The provisions of the Bill, other than the powers to make regulations, will be brought into force by order made after consultation with the Scottish Ministers and the National Assembly. It extends throughout the UK.

FINANCIAL EFFECTS OF THE BILL

37.     No expenditure is expected to fall on the Consolidated Fund or the National Loans Fund.

EFFECTS ON PUBLIC SERVICE MANPOWER

38.     In deciding how to implement the Bill through secondary legislation due regard will be given to minimising the impact on deposit libraries and publishers. It is expected that the human resource consequences of the legislation will be accommodated within existing deposit library resources. Resource needs will be reviewed periodically in the context of Government Spending Reviews.

REGULATORY IMPACT ASSESSMENT

39.     The Regulatory Impact Assessment (RIA) is indicative and illustrates the potential costs of bringing different classes of UK non-print publications into the legislative framework for the first time. The print system, already in place, is not addressed in the RIA as no additional impact is expected, as the print system will remain the same.

40.     The RIA illustrates the costs of options relating to the deposit of classes of non-print publications, and within the broad framework of the voluntary system. The RIA recommends that a sustainable and systematic national archive requires generic legislation. This enables different classes of publication, as these evolve and change, to be covered by new regulations and provides for consultation and determination of the deposit of different classes of publication through affirmative resolution in both Houses. Furthermore, it requires the impact of secondary legislation to be assessed through further Regulatory Impact Assessments, prior to regulations being made.

41.     The RIA uses the print analogy to cost the deposit of non-print publications. This compares the cost of depositing one copy accessible to deposit libraries and their readers via a shared secure network, to the cost of a system of multiple deposits where each deposit library acquires a copy of the work. In so doing, the RIA presents the potential costs of an initial set of regulations on the assumption that these might cover certain classes of non-print material: electronic off-line publications (though certain on-line publications are included in the RIA) and microform publications, but not websites. While the precise operation of the secure network may differ in relation to different classes of publication (including embargoes, thresholds and other safeguards) and in the light of publisher concerns, the RIA suggests that implementation via a sharing arrangement, such as the shared secure network, would be the most effective means of implementing the deposit of non-print material. This would impose the least burden on the deposit libraries and the publishers, but delivers maximum benefit to the UK public.

42.     The RIA can be found in the House of Commons Library and in the House of Lords Library.

COMMENCEMENT

43.     Clauses 1 -15 of the Bill, except for the powers to make regulations, will be brought into force by Order made after consultation with the Scottish Ministers and the National Assembly. The remaining provisions of the Bill will come into force on Royal Assent.

 
 
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Prepared: 9 September 2003