Tag Archive for Re-use and Copyright

Copyright and FOIA

FOIMan writes about the relationship between copyright and freedom of information.

Practitioners and others often get confused about the way that copyright interacts with FOI. In this piece for the Freedom of Information Journal, I attempt to provide some clarity. In summary, whilst public authorities retain copyright in much of the information that they disclose, it will often be difficult for them to prevent requesters and others from re-using disclosed data.

Flopsy ROPSI

Furry animal not ROPSI

This is not a ROPSI

FOIMan looks at a cuddly sounding piece of legislation that features in some FOI responses – and causes confusion.

The Re-use of Public Sector Information Regulations 2005 are not the best known piece of UK information rights legislation. I’ve always referred to them as ROPSI, which has the effect of making them sound like an endearing furry animal. But some requesters are starting to see them (not unreasonably in the context) as a pest – more Roland Rat than Peter the Rabbit.

Both clients and Twitter users have told me that they’ve received responses to their FOI requests containing something along the following lines:

“If you re-use the information you have requested, in whole or in part, please write to…stating how you want to re-use the information. We will then write to you within 20 working days with any conditions and charges that relate to the re-use…”

Often the regulations themselves will be cited, perhaps in conjunction with a warning that the public authority retains the copyright in the material. If you’re a journalist or a campaigner, the last thing you want to hear is that you might have to wait a further 4 weeks to be given permission to publish information received in response to an FOI request which may well already have taken many weeks to obtain.

So do you have to ask for permission? Well, let’s look at some facts here.

If a public body has disclosed a document that it created, then it is true to say that it retains the copyright in that document. So if you’ve received a 30 page report, and then published it on a website, and you’re a member of the public, then in theory at least, you might be opening yourself up to legal action from the authority (or if it was received from a third party, eg a company tendering for business with the public authority, perhaps that organisation). Technically you would be breaching copyright.

But there are some important caveats to this. In order to attract copyright protection, any work has to be “substantial” – it is highly unlikely that a response consisting of a number (eg as in the answer to “How many FOI requests were received by the authority in 2013?”) will attract that protection.

Copyright law contains exemptions and defences that can be utilised. One of these is for news reporting – so journalists, and arguably campaigners issuing information as part of a press release, should be able to publish information they’ve received through FOI without fear. Another exemption is for criticism or review, and the Information Commissioner has suggested that publication of disclosed information may well avoid infringement of copyright law on this basis.

Personally I think the use of these paragraphs in many FOI responses is at best an attempt to cover the authority’s ignorance of its intellectual property rights, and at worst, part of what I’m starting to see as a growing trend of using any facility, however spurious, to try to limit FOI and put people off using it. It’s in the same stable as warning potential requesters that they can be charged for FOI requests, even though the practical reality is that there are very limited circumstances in which this can be done.

That’s not to say that there aren’t circumstances when it would be wise to ask for permission before publishing or re-using information received from a public authority. If you’re wanting to re-use information for commercial purposes – to make money from it – you may well be advised to seek permission if you haven’t already been granted a licence. But it is unlikely that most requesters will have these intentions, and sticking a standard notice in every response, whether relevant or not, is not the way to highlight such requirements.

And what of ROPSI itself? The aim of the regulations was to encourage more re-use of information “by removing obstacles that stand in the way of re-use”. They are very close, in terms of legislative agenda, to the dataset re-use provisions introduced by the Protection of Freedoms Act. They’re supposed to be making it easier for people to re-use information.

The datasets provisions at s.102 of the Protection of Freedoms Act (amending s.11 of FOIA), require authorities to issue a licence for re-use of datasets at the time of issuing the FOI response (or to indicate what conditions they might apply if they intend to charge for re-use). The default licence is the Open Government Licence – allowing the requester to re-use the information as they see fit, more or less. To me, this indicates the direction that the Government wants all public authorities to go in – and it isn’t towards putting hurdles in the way of re-use.

Interestingly, the Government is currently revising the ROPSI Regs (which, like the Environmental Information Regulations, derive from an EU Directive), and it seems at least likely that they will transpose the spirit of FOI’s dataset requirements. So perhaps ROPSI the Rat will become a thing of the past.

 

Game, Dataset and Match

FOI Man highlights forthcoming changes to FOI and provides some hints and tips for public authorities on how to deal with them.

Last year, the Protection of Freedoms Act was passed. Amongst the changes it brought in, were a small number of amendments to the Freedom of Information Act.

But we’re still waiting for most, if not all, of those changes to come into force. To bring them into force, the Government has to lay a commencement order before Parliament…and this is yet to happen. It was expected that the commencement order would be laid last month, bringing the changes into force on 1 April. But this has now been delayed, as reported by the Information Commissioner’s Office earlier this month.

The most significant change is the requirement on public authorities to release datasets in a reusable format, and to publish disclosed datasets in their publication schemes. In my latest article for PDP’s Freedom of Information Journal, I’ve written about these requirements and how to comply with them. (And don’t forget also my report on open data work at Southampton University, which contains further tips on managing and publishing open data).

Personally, I don’t think public authorities should worry too much about these changes. There are a few reasons for this. Firstly, as I commented when the Bill was first published, the effect of these changes will be very limited in my view – they change very little. Public authorities already have to provide information in the format requested “so far as reasonably practicable”; I’ve never been convinced by Francis Maude’s claims that public authorities routinely (and deliberately) choose to disclose data in pdf just to frustrate entrepreneurs.

There may be a mad rush of requests for datasets later this summer (if indeed the Government sticks to its latest timetable), and no doubt there will be more impact for some than others. But I don’t anticipate that this is going to cause significant issues overall.

What can public authorities do to prepare? Well, I suggest the following:

  • identify your key datasets – if you regularly get requests for particular data, then you know what is likely to be asked for in future
  • work out what kind of licence you want to apply to these datasets if you disclose them; the easiest thing will be to use the Open Government Licence for information your authority owns the copyright for, but it is likely you will also be able to offer a non-commercial licence (limiting re-use to non-commercial use) or a charged licence (allowing re-use in exchange for a fee)
  • set up a section in your publication scheme for datasets and if you are happy to disclose datasets and make them available for re-use, get them up there on your website for people to use – don’t wait for the requests
  • once you’ve released a dataset and have licensed re-use, you are obliged to make it available in your publication scheme and to keep it up to date.

That last point may sound worryingly like a potentially unmanageable task for some public authorities, but the relevant amendment goes on to say “unless the authority is satisfied that it is not appropriate for the dataset to be published”. “Not appropriate” isn’t defined (as ever), but if it would be expensive to keep the dataset up to date, for instance, that might well be a justifiable reason not to do so.

So the usual advice applies to these changes – don’t panic! But we’ll have to wait and see what the actual impact will be. And indeed when that impact will be felt. At the moment we only have a draft Code of Practice to go on, so hopefully these few thoughts will be useful.

 

 

Draft Datasets Code of Practice

FOI Man highlights a new draft Code of Practice under section 45 of the Freedom of Information Act.

It’s all go with FOI at the moment. No sooner have we had to wade through the ICO’s Anonymisation Code of Practice than another comes along from the Ministry of Justice – this time a draft Code setting out best practice for meeting the new requirements under FOI relating to datasets.

The draft Code is a supplement to the existing section 45 Code of Practice, setting out best practice for public authorities in complying with FOI. It is required by the amendments made to FOI by the Protection of Freedoms Act (which are not yet in force).

It provides clarification on interpreting the definition of dataset in the amendments, as well as setting out the three licences (developed by The National Archives) that public authorities will be expected to use when licensing re-use of datasets (ie open, non-commercial and charged). What isn’t yet clear is what fees public authorities will be able to charge for re-use. The amendments allow for the Secretary of State for Justice to lay down regulations to allow this, but there is no news yet on if, or when, such regulations will be forthcoming.

It should be stressed that the Code is a draft, and the Government is inviting comments on it via the gov.uk website. So if you’re interested in the open data agenda, or simply want to ensure the Code is clear enough, do go and make your views known.

Protection of Freedoms Act – FOI changes

FOI Man summarises the changes to the FOI Act that result from the passing of the Protection of Freedoms Act last week. And finds that not much has changed over the course of the last year.

The Protection of Freedoms Act came into force on 1 May 2012. Amongst its many implications are those for the Freedom of Information Act (though we still await a commencement order in respect of these provisions, so it is not yet clear when they will come into force). I previously wrote about this when the Bill was first published early last year, but now that it has entered the statute books, it is time to see what the approved legislation requires.

Part 6 of the Act covers the freedom of information and data protection changes. Section 102 amends section 11 of FOI to the following effect:

  • where a public authority is asked for information that is in the form of a dataset (defined in the new section 11(5) – or s.102(2)(c) of PoFA), and the requester asks for it in electronic form, as far as is reasonably practicable (explained at s.11(2) of the existing FOI Act), the public authority must disclose the dataset in a re-usable format.

A new section 11A:

  • requires that where the copyright of a disclosed dataset belongs to the public authority, it will be subject to a licence to be specified by the Secretary of State (presumably Justice) in the Section 45 Code of Practice (a new revision of which, we assume, must be forthcoming);
  • allows an authority to charge a fee for re-use in line with section 11B or any other regulations that provide for a fee to be charged for re-use;
  • requires an authority to issue a fees notice to an applicant where it is planning to charge for re-use;
  • removes the obligation to allow re-use until such a fee has been paid.

And section 11B:

  • empowers the Secretary of State (again, presumably Justice), in consultation with the Treasury, to establish fees for re-use of datasets through regulations;
  • these regulations would apply to datasets disclosed in response to FOI requests and listed in a public authority’s publication scheme.

Talking of publication schemes, public authorities will be obliged to publish datasets disclosed in response to FOI requests in their publication schemes unless they are satisfied that it is not appropriate. They will also have to publish updated versions when they change. Section 19 of FOI has been amended to this effect (it now includes a section 19(2A-F)).

Section 45 has been updated to require the Secretary of State to make provision in the Code of Practice for disclosure of datasets.

Section 103 of the Protection of Freedoms Act closes down the loophole in the coverage of FOI for bodies established by two or more public authorities by amending section 6 of FOI.

Section 104 extends certain provisions of FOI that hitherto had not applied to Northern Ireland to that jurisdiction.

Section 105 amends both the Data Protection Act and FOI to extend the Information Commissioner’s term of office from 5 to 7 years, and limit those appointed to the post to one term.

Section 107 amends section 47(4) of FOI allowing the Information Commissioner to charge for “relevant services” – training, multiple copies of published material, and conferences – without consulting the Secretary of State (as he was obliged to do previously).

In summary:

  • public authorities are obliged to make datasets available in a re-usable format on request;
  • re-use will be allowed under the terms of licence(s) to be announced, and charging will probably be allowed in line with existing or new regulations;
  • disclosed datasets will normally have to be published (and kept up-to-date) under an authority’s publication scheme;
  • publicly-owned companies owned by more than one public authority will no longer escape FOI;
  • Information Commissioners will serve only one 7-year term; and
  • expect the Information Commissioner’s Office to start charging for training and conferences.

Not much has changed on this aspect of the Act since the first draft over a year ago. We now need to watch out for the commencement order bringing these changes into force, the revised section 45 Code of Practice, and any regulations on charging for re-use.