FOI & Copyright: What’s the Big Deal?
There’s been a lot of confusion recently over FOI as it relates to copyright law. Decision notices such as the one served on the House of Commons have only managed to confuse the issue further, with copyright law now being viewed by many as merely another excuse to withhold access to information. However, the Copyright, Designs and Patents Act 1988 (CDPA) is a valid and relevant piece of legislation which applies to a sweeping majority of work created in the UK. As information is increasingly delivered via digital means, copyright issues must not be dismissed as irrelevant or insignificant in light of an FOI request.
When it comes to copyright, it’s important to get the facts straight:
- Copyright is an automatic intellectual property right
- Copyright protects expressions of ideas which are recorded and (for the most part) original (this includes databases)
- Copyright does not protect ideas themselves, or facts, numbers or names (trademarks may apply to names and brands)
- The exclusive rights belonging to a copyright owner include rights in copying the work, issuing and communicating it to the public, lending it, showing it and making an adaptation of it
- Work created in the course of employment is owned by the employer
Copyright applies regardless of whether a work counts as public information or not. Unlike in the USA, where work prepared by an employee of the US government as part of their official duties is not protected by domestic copyright law, work created by employees of the UK government attracts Crown Copyright protection. Crown Copyright lasts for 125 years from the year in which the work was made, unless it was published commercially within the first 75 years, in which case copyright lasts for 50 years from the date of commercial publication.
Access vs Re-use
The crux of the issue is the distinction between access to information and subsequent re-use of that information (the National Archives has an excellent document on this). The CDPA states in s.50(1) that:
“Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe copyright.”
The question arises: what exactly is “specifically authorised” by the FOI Act? Firstly, the Act is for the disclosure of information to one person, “the applicant”. Section 11(1) details the ways in which the applicant can express a preference for how the information is communicated to him or her: a) a copy of the information in permanent form or another form acceptable to the applicant; b) the provision of a reasonable opportunity for the applicant to inspect a record containing the information; and c) the provision of a digest or summary. The key here is that the making and provision of a single copy of the information to an individual applicant does not infringe copyright. In essence, if the document contained graphs, tables, photographs, diagrams, and so on created by others outside of the public authority (also known as third party content/copyright), the authority would be able to supply a copy of that document in its entirety to the applicant without having to seek permission to do so from the various copyright holders represented.
However, the FOI Act also states that in deciding whether the making and supply of a copy is ‘reasonably practicable’ the authority may ‘have regard to all the circumstances’. If one of the circumstances is that the information being supplied will immediately be available for many people to download, view and copy on a website (in other words: be published), this does not fall under what is “specifically authorised” by the FOI Act and therefore section 50(1) of the CDPA no longer applies.
In the HoC Decision Notice, the Information Commissioner declared the What Do They Know? website’s email address valid for the purposes of the FOI Act, and therefore under this Act the HoC was required to release the information. However, the copyright issue arose not with the disclosure of the information itself, but rather with the issue of instant publication to the website of that information. This issue was deferred by the ICO (and rightly so) as being outside of their scope. The only problem with this is that it would really require the judgement of a court to state that the act of instant publication of information disclosed to an applicant under FOI is not “specifically authorised” by the Act and therefore section 50(1) of the CDPA cannot be applied, meaning that such use of the information infringes copyright.Emily will be back next week to talk about ways to legitimately re-use information disclosed through FOI.
I probably need to re-read it to understand it better, but it does clarify a few things for me. Can’t wait for the next post.
Excellent – looking forward to the next (hopefully longer post) especially on issue of section 43 and the PI test even where disclosure would breach copyright.
I think this distinction between making available to an enquirer and them publishing it is crucial. You seem to start out quite strong on this, and then hedge your bets in the last paragraph!
I do worry about comments attributed (can’t find a strict quote right now) to ICO that disclosing under FoI was disclosing to the whole world (sounds very much like publication!). Do you have any comment on this (or even remember the quote)?
I hedge my bets only because this particular Decision Notice has thrown copyright and FOI together in a very ungainly way by merging the “applicant” with the “re-user”. It would take a court to interpret what the CDPA means by “specifically authorised” by the FOIA, although my personal take on it is that it is the copying which is done by the organisation for the applicant in order to supply the applicant with a copy of the documentation is not an infringement of copyright.
The quote you are thinking of is the one in the ruling of the Information Tribunal in Guardian & Brooke v The ICO and the BBC which says:
“Disclosure under FOIA is effectively an unlimited disclosure to the public as a whole, without conditions*” but which starred conditions go on to say “in the Commissioner’s view, information under the Act or EIR can still be subject to copyright restrictions”. I agree that it is effectively disclosing to the whole world, as once you know something you can tell everyone about it, but you could well be prohibited from reproducing entire documents that you received verbatim as that would be copyright infringement and would fall outside the scope of s.50 of the CDPA.