Re-using Public Sector information: what you need to know
There’s been a lot of interest and discussion around the government’s Open Government Licence and whether it covers information released under FOI. In short, it does not. The Open Government Licence (OGL) allows others to re-use information which has been made publicly available (i.e. on the public facing web) by a government authority so that individuals wishing to make use of this information do not constantly have to write for permission to do so. It is important to note that not all public authorities have adopted this licence, and that the licence only applies to works which have been published. Any information received by an applicant under FOI will not automatically fall under this licence, and therefore permission would have to be sought via a request to re-use this information before further use (including reprographic publication) could be made.
Why would a Public Sector Organisation be reluctant to apply an Open Government Licence to information released under FOI?
The OGL reads:
“You are free to:
copy, publish, distribute and transmit the Information;
adapt the Information;
exploit the Information commercially for example, by combining it with other Information, or by including it in your own product or application.”
The wide scope of this licence means that it is unlikely that public sector organisations will adopt it as a blanket licence to cover all of the information that they release under FOI. It is more likely that a selective approach would be favoured, in that some information requested would be released under the licence at the point at which it is sent to the requester, but not all. This would very much depend on the type of information being requested, which may not fall under an FOI exemption but may prejudice the organisation’s interests were it to be used for commercial purposes. West Middlesex University Hospital NHS Trust’s website provides some excellent examples of why a public sector organisation would not wish to release information under the OGL:
“Providing access to information does not give an automatic right to re-use it. Re-use can include publishing information or issuing copies to the public. Examples might be private sector companies wanting to re-publish our documents on their website as part of a commercial service, or wanting to publish our images in commercial publications.”
It is important to take these concerns into account in order to get a fair and balanced view of why, at times, a public sector organisation may not allow re-use of information in certain ways.
The Re-Use Regulations
Public sector information which is publicly available but is not released under the Open Government Licence is still subject to the terms laid out in the Re-Use of Public Sector Information Regulations of 2005. Information received under FOI from a public sector body is subject to these regulations with the following exceptions:
- The Regulations do not apply where a third party owns relevant intellectual property rights in the document (i.e. the document was written by an independent consultant who retained the copyright in the work)
- The Regulations do not apply to public service broadcasters and their subsidiaries, educational and research establishments, or cultural establishments
A request for re-use of information can be submitted to the remaining authorities who are not excepted from the regulations at the same time as an FOI request. The FOI request will be dealt with first, as re-use of information is impossible if access to that information is not granted. It is up to the institution as to whether it chooses to grant re-use of the information supplied, and it is entitled to make a charge for the re-use of the information. Complaints are handled by the Office of Public Sector Information, and more information about the re-use of public sector information is available from the National Archives.
Fair Dealing: what the Copyright Act allows you to do
The CDPA makes certain allowances for the use of work without the need to request permission to use it from the copyright holder. The main defence is fair dealing with a work for the purposes of: a) non-commercial research and private study; b) criticism and review; c) news reporting. It should be noted that photographs are specifically excluded from the fair dealing defence for the purposes of news reporting.
The emphasis in the Act is on the word “fair” – although it is not specifically defined, various case law has indicated that the work used must be no more than is necessary to make the point (i.e. an insubstantial amount) and must not have a detrimental economic impact on the original work. In addition to this, other factors also come into play, such as whether the work is published or unpublished, what the motive was for the dealing, and whether the purpose could have been achieved by different means. The defence, if relied on, should be used carefully, as one court found the copying of as little as 11 words to be copyright infringement. However, it is generally accepted that journalists can rely on this defence to re-use insubstantial portions of the information they receive as a result of an FOI request for the purposes of news reporting, with the exclusion of photographs.
With the exception of certain valuable data sets like Ordnance Survey maps and the Postcode address file, how much money does the public sector actually get from charging for re-use?
For example after Brent Council went to extreme lengths to try to prevent WhatDoTheyKnow publishing their FOI responses, I asked them about any applications for re-use they had ever received since the regulations came into force. Although they were unable to locate all relevant information within the costs limit (!), from what they could find it seems that they had 10 requests, only making a charge of £100 in a single case – and I don’t even know if they ended up getting that money.
I see the copyright/licensing as more of a safety net than a money spinner.
[standard I am not a lawyer disclaimer]. As an NHS body, we receive numerous requests for lists of staff, organisational functions, etc, which the requester clearly states that they intend to publish in a free-to-access database. I thought that (at least part) of the point of the copyright/licensing condition was to reduce the risk that commercial organisations would profit from data which they have received for free and at the expense of the taxpayer – i.e. the public funds that have paid for that information to be provided. (W. Middlesex line, as in article.)
It could also well be that an organisation would want to set certain conditions around publication of data – i.e. “all or none” – anyone remember the publication of NHS bodies’ overspends which did not set any useful context like the overall budgets to which those overspends related? Of course, the overspends were not insignificant amounts of money – but if they were less than 1% of the total, that’s not necessarily down to bad management.
You’d probably find that publication of embarrassing excerpts is covered by fair use anyway. As far as commercial organisations making use of the data, the current Government’s right to data agenda is all about doing that, so I suspect you’ll find it’s a losing battle.