Tag Archive for Re-use of Public Sector Information Regulations

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.

Nothing flopsy about this RoPSI

FOIMan finds the Holy Grail of a first decision under the Re-use of Public Sector Information Regulations.

A rabbit

Careful…it could turn at any minute.

Ever since the first Re-use of Public Sector Information Regulations became law in 2005, I’ve known them as RoPSI. This has always amused me as I envisage them as a cute little bunny rabbit. Flopsy RoPSI. Bless.

But in fact since 2015 they’ve had more teeth – think more of the blood-thirsty fur-ball in Monty Python and the Holy Grail. The 2015 regs require public authorities to allow re-use of information on request in most circumstances. And what’s more, they bring the full range of FOI enforcement options to bear on re-use. Which are of course wielded by the Information Commissioner.

That said, we haven’t seen the Commissioner use these powers in anger – until now. The first decision notice has been issued in relation to RoPSI. It criticises Cambridgeshire County Council for imposing unnecessary restrictions on the applicant for re-use of right of way data.

Cambridgeshire had allowed the re-use of the data under a licence which was limited to one year, and appeared to limit re-use to the applicant alone. These were problems for the applicant as the intention was to use the data on an open mapping website where it might then be further re-purposed by others. They had also reserved the right to charge for re-use but had waived the charge on this occasion.

One of the council’s concerns was that the intellectual property of the Ordnance Survey (OS) would be breached, which was soon dismissed when the OS told the ICO that they had no problem with rights of way data being re-used under the Open Government Licence (OGL). Another was that the data itself would soon be updated. The council was imposing the one year licence so that the applicant would be forced to update their map after a year. The ICO pointed out that the OGL requires those reusing data to publish data with a caveat warning that the data might not be accurate. This should be sufficient to meet the council’s concerns.

The council’s position was also undermined by the fact that other councils allowed re-use under the OGL. Taking all this into account, the Commissioner concluded that the licence terms were unnecessarily restrictive. It appears that when it comes to licensing of public sector data, public authorities will need good reasons not to apply the OGL.

Unfortunately the issue of whether the council could charge for re-use wasn’t examined because the council hadn’t charged in this case. I suspect that if it had been looked at, the Commissioner would not have been sympathetic to a charge. Under RoPSI, in many circumstances, only “marginal costs incurred in respect of the reproduction, provision and dissemination of documents” can be charged for re-use. Take note those tempted, like Cambridgeshire, to adopt the National Archives’ “Charged Licence” when responding to re-use requests.

The Commissioner was also critical of the council’s tardiness in responding to ICO enquiries (and indeed considered whether they had failed to deal with the original request ‘promptly’). The decision notice threatens that in future the Commissioner will be prepared to require information under her statutory powers at s51 of FOIA, and suggests that the council should consider whether sufficient resources are in place. It’s clear the Commissioner has been less than impressed with the way that Cambridgeshire have dealt with her enquiries and this request for re-use.

This first decision notice under RoPSI sends out a signal that, as with FOIA and data protection, the ICO means business under their new Commissioner.

Should Cambridgeshire disagree with the Commissioner, they need only appeal to the First Tier Tribunal. Unless they have access to the Holy Hand Grenade of Antioch, of course.


I’ll be covering re-use and the Re-use of Public Sector Information Regulations on my Practical FOI Skills and Transparency Requirements course for Act Now Training.

References:

Decision notice FS50619465 (Cambridgeshire County Council)

Re-use of Public Sector Regulations 2015

Open Government Licence v.3

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.

 

Guest post – re-use of disclosed information

Emily Goodhand, Twitter’s @copyrightgirl, returns with her second guest post for FOI Man.

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:

  1. 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)
  2. 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.