Select Committee on Delegated Powers and Regulatory Reform Twenty-Fourth Report





1.  This memorandum identifies provisions for delegated legislation, explains their proposed use by the Secretary of State, explains why these matters have been dealt with by way of delegated powers, and sets out the degree of Parliamentary control on the exercise of these powers.

2.  The Bill expands the requirements for legal deposit for print contained in the Copyright Act 1911 to non-print material. Because of the fast-changing nature of the environment, due to changes in technology, the Bill is largely generic and contains many provisions for delegated legislation in order that the Bill will be able to keep up with these changes in technology and new media for publication. Without such ability, it is believed that the Bill would be out of date within a short period of time and be incapable of being adapted to external circumstances to the detriment of both publishers and legal deposit libraries.

3.  The Bill, as a private members bill, will not be allocated any further time in the House of Commons. Any changes or removals that the Committee may recommend in the House of Lords will, therefore, result in the Bill failing.

Rationale and Overview of Delegated Powers

4.  The Bill requires copies of print publications to be deposited with the deposit libraries (the British Library, the National Library of Scotland, the National Library of Wales, University Library Cambridge, the Bodleian Library Oxford and the library at Trinity College Dublin) in the same way that section 15 of the Copyright Act 1911 (to be repealed by this Act) currently does.

5.  The Bill also contains powers to make delegated legislation requiring non-print media to be deposited with some or all of the same libraries. The publishing environment is changing rapidly and new technology is being developed all the time. Therefore, delegated powers have been included in the Bill as opposed to provisions on the face of the Bill as it is critical that the legislation can be fully responsive to that changing environment and not be out of date within a very short space of time. When this Bill was first conceived (within the last 5 years), the primary method of non-print publication was by CD-Rom, but this is no longer the case. It is now electronic publication. This demonstrates how rapidly things change in the non-print publishing environment.

6.  In addition, there will be special circumstances and considerations relating to each different medium of publication, so extensive consultation with the appropriate publishers will be required in respect of legislation for each medium. Again, this is better accommodated through delegated legislation.

7.  We have not provided any draft regulations because of the importance of consultation before regulations are made. As stated below, there is a requirement to consult publishers and libraries before regulations are made, and publishers have taken a lot of convincing that consultation will be genuine and that their views will be taken into consideration. We feel that to provide draft regulations at this stage, without such consultation, would undermine the relationship that we have built up with the publishers.

Considerations for the Secretary of State

8.  Before the Secretary of State can make many of the regulations, she must consider that the costs likely to be incurred by publishers are not disproportionate to the benefit to the public arising from the building up of the national archive by deposit of the works, and must consider that the regulations do not unreasonably prejudice the interests of the publishers concerned.


9.  In addition, she must consult the deposit libraries and publishers appearing to be likely to be affected by those regulations. It is anticipated that an Advisory Panel, representing libraries, publishers and other interested parties, will be established to assist in the consultation process and to provide advice to the Secretary of State.

10.  The Secretary of State must also consult the National Assembly for Wales and the Scottish Ministers if the regulations will affect the National Libraries of Wales and Scotland respectively. If the regulations would restrict or remove any entitlement from those libraries the relevant devolved administration must consent to the regulations.

Parliamentary Scrutiny

11.  Regulations and orders made by the Secretary of State will be statutory instruments. All regulations made under this Bill will be subject to the affirmative resolution procedure. This is because the requirements of the legislation are substantive rather than administrative or procedural, and could have an enormous impact on the publishers required to deposit their publications. Therefore it is thought that a greater degree of Parliamentary scrutiny than would be provided by the negative resolution procedure is appropriate.

12.  Regulations made under section 44A of the Copyright Designs and Patents Act 1988 (inserted by clause 8 of this Bill) will be subject to the negative resolution procedure because these regulations are more limited in scope and would generally be used to reassert separately decided and delivered copyright policy in relation to legal deposit material. Regulations will therefore only be made if there is perceived to be a problem with regard to intellectual property rights issues in regulations made under the Legal Deposit Libraries Bill, so that the publishers require the further protections that can be afforded by these regulations. In that event it is appropriate that such regulations can be made quickly via the negative resolution procedure. If necessary, the offending regulations under the Legal Deposit Libraries Bill can then be amended by the affirmative resolution procedure.

13.  The provisions of the Act, except so far as they confer power to make regulations will be brought into force by order in line with normal practice.

Specific Provisions

Duty to Deposit

14.  Clause 1 sets out the general provisions concerning deposit. All works published in print must be deposited unless any exception is prescribed under subsection (3). Therefore, if the Secretary of State decides that it is not appropriate to require deposit of a certain type of printed work she can make regulations to exclude this from the deposit requirements.

15.  For works other than print, such as CD-Roms, microfiches and works published electronically, deposit will only be required for any particular medium if the Secretary of State has made regulations under clause 1(4) requiring that medium to be deposited. In this way the duty to deposit non-print media can be implemented in stages, thereby not imposing a huge burden on the libraries and publishers in one go. Such regulations cannot apply to works published before the regulations are made. They may not be made unless the Secretary of State considers

  (a) that the costs likely to be incurred by the publishers affected are not disproportionate to the benefit to the public arsing from the enhanced national archive, and

  (b) that they do not unreasonably prejudice the interests of the publishers concerned.

16.  Clause 2 provides that where a work is published in more than one medium, but is substantially the same in both those media, only one version will be deposited. The Secretary of State will make regulations under clause 2(2)(b) which determine the medium to be deposited. It is anticipated that if there is a print version, the print version will the medium deposited as print is currently more stable than non-print. However, it is likely that in the future another medium might be more appropriate, for example it will require fewer resources to store or because it is more cost effective for publishers to deposit a particular medium. As with all regulations, this choice will only be made after consultation with the libraries and the publishers.

17.  The Secretary of State will also make regulations under Clause 2(3) which determine whether one publication is substantially the same as another. It is likely that these regulations will provide that at least a certain percentage of the publication must be the same, or that certain elements of the work must be the same. We have taken a power to make regulations on this subject in order that we can retain flexibility to enable us to respond to state of the art changes. It is much easier to make small changes to an electronic publication than to a print publication, so it is likely that there will be many different versions of the same publication. It will therefore be necessary to determine when one version is substantially different to the one previously deposited. Different criteria may be appropriate for different media.

18.  Again, these regulations may not be made unless the Secretary of State considers

  (a) that the costs likely to be incurred by the publishers affected are not disproportionate to the benefit to the public arising from the enhanced national archive, and

  (b) that they do not unreasonably prejudice the interests of the publishers concerned.

Regulations relating to the deposit of non-print publications

19.  Once a particular medium is required to be deposited in accordance with clause 1(4) the Secretary of State will make regulations under clause 6(1) setting out the circumstances of the deposit. Before making any regulations under this clause, the Secretary of State must consider that the costs likely to be incurred by the publishers are not disproportionate to the benefits to the public and that the regulations do not unreasonably prejudice the interests of the publishers (clause 11). Again, different provisions may be required for different media, so it is important to have the flexibility to make regulations, rather than putting the criteria on the face of the Bill.

20.  Such regulations may:

  (a) specify the time at which a publication will become subject to deposit (clause 6(2)(a)) so that sales thresholds can be imposed. This will be particularly important where the publication concerned has low sales and where a majority of sales are currently to the deposit libraries. It will be important to ensure that the viability of the publication is maintained;

  (b) require the delivery of any software necessary to access the work (clause 6(2)(b)) to ensure that the libraries can use the material;

  (c) require delivery within a specific period of time, such as within one month of publication (clause 6(2)(c));

  (d) permit electronic delivery (clause 6(2)(d));

  (e) specify the quality of copies for delivery if copies of differing quality are published (clause 6(2)(e));

  (f) specify the format for delivery if more than one format is made available (clause 6(2)(f));

  (g) specify the medium in which an online publication is to be deposited (clause 6(2)(g)).

Regulations relating to use of non-print publications

21.  The libraries and readers may not do specified activities in relation to the material (use it, copy it, lend it to a third party, transfer it or dispose of it or adapt an accompanying computer programme) unless the Secretary of State has made regulations permitting such use under clause 7(2), and then may only do so in accordance with any conditions that have been prescribed by those regulations. Dealing with these issues by regulations rather than on the face of the Bill enables flexibility so that different provisions may be made for different media, as appropriate.

22.  These regulations may also make provision about the purposes for which the material may be used, the circumstances in which readers may first use it (thereby allowing embargoes on the material to be imposed which may be appropriate if the material has an initial high value, but a short life span as it will be out of date in a limited period of time), the types of reader that can use the material and may impose limits on the number of readers that may use the material at any one time. This latter provision is likely to be used if the material is stored electronically, to ensure that it is not possible for many people to access the material, which might undermine the publisher's market for the publication.

23.  Again, making these provisions by regulations enables flexibility in a rapidly changing environment where different publications may require different treatment. Regulations may only be made if the Secretary of State considers that the regulations do not unreasonably prejudice the interests of the publishers.

Regulations concerning the use of non-print publications: copyright etc

24.  Protecting copyright (and database right) in non-print legal deposit material is particularly sensitive given the ease with which perfect digital copies can be made and widely disseminated.

25.  To ensure that the activities permitted by regulations made under clause 7 of the Bill do not infringe copyright, a new section 44A is inserted into the Copyright, Designs and Patents Act 1988 (by clause 8 - a similar provision is being inserted into the Copyright and Rights in Databases Regulations 1997). In addition to the activities specified in those regulations that are made non-infringing by this new section, non-print deposited material could also be used without infringing copyright in any way that is within the scope of other exceptions to copyright.

26.  In some circumstances it may be appropriate to stop one or more of these exceptions applying, or restrict the way they apply, to non-print deposited material in order to ensure that copyright exceptions do not apply to this material in a way that is contrary to the legitimate interest of copyright owners. This purpose can be achieved by the regulations made under the new section 44A(2). For example, copyright material published online may only be available in normal libraries under a contract that quite legally removes the ability to enjoy some copyright exceptions, thus all readers would pay for any material they download or otherwise copy. Therefore, it would be unfair on copyright owners to permit deposit library readers, who are using the same material, to exploit it in a way that would not be permitted in any other type of library.

27.  In general, regulations made under clause 7 of the Bill limit activities in any case with respect to non-print deposited material. However, copyright requirements might dictate a more urgent change to these limits than can be delivered via the process of regulations made under clause 7. Thus, the negative resolution procedure is appropriate for regulations made under section 44A in order to ensure that any accidental or unfair impact on copyright owners or users can be quickly rectified. Moreover, intellectual property, including copyright, is a reserved matter so the consultation procedures with devolved administrations required under this Bill, are inappropriate in relation to copyright.

28.  Regulations made under section 44A will be able to exclude the application of any exceptions to copyright to relevant material (as defined in clause 7). Different regulations can be made for different purposes (subsection (4)) and the regulations made can impose access requirements so that only certain types of reader may access particular types of material. This access can have conditions imposed or even be prohibited if it is for an unacceptable purpose (subsection (3)).

Exemption from liability: accessing of publications

29.  Clause 10(5) gives the Secretary of State power to make regulations specifying the description of work that may be copied by the libraries from the Internet - to enable the libraries to "web-harvest" instead of requiring the publishers of such electronic publications to deposit the material with the libraries. Conditions, for example limits on the number of copies that may be taken, can be imposed by the regulations. Regulations will also specify the connection to the UK that the publication or the publisher must have before that work can be "harvested" by the libraries. Vast amounts of material are available on the web, and it will not be appropriate to include all of this in the national archive. Therefore, this regulation making power enables us to provide for exactly what the libraries should harvest. As technologies change it will be vital to maintain flexibility in these areas. Regulations may not be made unless the Secretary of State considers that they do not unreasonably prejudice the interests of the publishers concerned.

30.  Clause 10(8) enables the Secretary of State to expand the exemption from liability with regard to defamation to other areas of liability if this proves to be necessary to ensure that libraries and publishers are not exposed to unnecessary or inappropriate liabilities. Legal decisions like Loutchansky v The Times[5] may arise which change everyone's previous understanding of the extent of any particular liability, and thereby expose the libraries and publishers to further liabilities.

5   [2002] 1 All ER 652. Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003