Freedom of Information and Copyright: How Do the Two Regimes Interact?

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Freedom of Information and Copyright:

How do the two regimes interact?1

I. Introduction

Freedom of information legislation typically creates rights to obtain information from

public bodies. Copyright gives owners of copyright a power to control use of their

works.

While copyright does not protect information per se, the exercise of a freedom of

information right will usually entail the supply of that information in the form of a

copyright work such as a document. In some cases it will be the particular form of

work rather than merely the information it contains which will be of interest.

Modern copyright law gives a copyright owner powers to prevent both the

reproduction of a work and also its dissemination to others. Thus, copyright may

interact with information rights at two stages: at release by the public body and during

the subsequent re-use by the individual exercising the right.

The owner of the relevant copyright may be the public body against which the

information right is exercised or another public body – in either case referred to in this

dissertation as a “public copyright.”2 Or the owner may be a non-public third party

here called “private copyright”. 3 Conflict may arise when the copyright owner

(public or private) wishes to prevent a work’s release or to prevent or limit its re-use.

This essay examines how the law addresses the potential conflict between copyright

and freedom of information. It first considers to what extent the freedom of

information legislation in the UK specifically provides for copyright issues. It then

1 Francis Davey, research paper submitted for the LLM degree at Queen Mary, University of London, with thanks to Professor Anne Flanagan (supervisor). 2Eg, the information sought may be contained in or comprise internally written documents such as ministerial minutes which, in the UK, would be protected by public copyright. 3 Many documents authored by private third parties are filed with public bodies, eg, company annual reports filed at Companies House.

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explores how it has set the balance between the public/private interests of copyright

owners and the public interest in access to publicly held information. It will then

consider whether this balance is appropriate and, if not, what changes to the law

might redress this.

Included within the copyright rubric herein is the more recent “sui-generis” database

right introduced by the Database Directive.4 As the database right explicitly aims at

protecting the investment in the collection of information, the potential for conflict

between copyright and information rights outlined above is clearly also present.

Before examining the relevant provisions of each framework for the specific balance,

it may be helpful first to explore briefly the policy considerations underlying each.

The following addresses each in turn.

II. Policy Underpinnings

A. Aims of Freedom of information

While many arguments are made in support of a right to freedom of information, they

may be divided into two broad categories already visible in the first statute to

recognise a law of freedom of information in Sweden in 1766, the pre-amble of which

states:

“That, having considered the great advantages that flow to the public from a

lawful freedom of writing and of the press, and whereas an unrestricted mutual

enlightenment in various useful subjects not only promotes the development and

dissemination of sciences and useful crafts but also offers greater opportunities to

each of Our loyal subjects to gain improved knowledge and appreciation of a

wisely ordered system of government; while this freedom should also be regarded

as one of the best means of improving morality and promoting obedience to the

4 Council Directive No. 96/9/EC of 11 March 1996 (O.J. No. L77, 27.3.96, page 20) on the legal protection of databases

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laws, when abuses and illegalities are revealed to the public through the

press…”5

The first goals stated “the development and dissemination of sciences and useful

crafts” are directed at the general good outside of government. The idea being that

governments may hold information that is valuable to the wider society. By giving

access to that information, there are societal benefits. For example, through use of the

information in academic study and technology. Herein “economic”.

The remaining goals concern the better functioning of the constitution and, in

particular, government. For example, through the use of transparency as a weapon

against corruption or by the promotion of the rule of law as a result of giving the

general population a better understanding of the internal operation of government.

Herein “transparency”.

In the common law, the development of a right of access to officially held documents

was patchy. Most of the early decisions require that the requesting party had some

personal interest in the documents, for example because they were needed in

litigation. In the US courts developed a generally more generous position and

recognised “economic” aims in some cases, for example by allowing title insurance

companies access to copy public records.6 The picture is complex.

Statutory rights were introduced to inspect certain classes of public records,7 but no

general right of access to publicly held information was recognised in the UK until

the Freedom of Information Act 2000.

Despite the value placed on open government going back to enlightenment figures

such as Bentham and Mill8 no national rights protecting document appears yet to have

5 His Majesty’s Gracious Ordinance Relating to Freedom of Writing and the Press, 2 December 1766, Stockholm, translated in The World’s First Freedom of Information Act, Anders Chydenius’ Legacy Today, Juha Mustonen (ed), Anders Chydenius Foundation, Kokkola 2006 6 P.M. Dwyer, Right of abstracter or insurer of title to inspect or make copies of public records 80 ALR 760 at 768 7 Eg s.112 Land Registration Act 1925 8 Norman Marsh QC (ed) Public Access to Government Held Information (Stevens 1987), page 2

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created an express right of access to information9 although a number of international

bodies have begun to admit the possibility.

For example, the Aarhus Convention10 includes an express right of access to

environmental information,11 the goals of which fall into the “transparency”

category.12

The Inter-American Court of Human Rights13 interpreted a right to receive

information14 as including, at least in some circumstances, a right to obtain it from

government.

The European Court of Human Rights (“ECtHR”) initially resisted any such finding

in respect of a similar right to receive information in the European Convention.15

Although it was prepared to find a failure to give information to members of the

public about the risks to them of a chemical factory might interfere with the exercise

of their article 8 rights.16 More recently it has been prepared to find that Article 10

might include a right of access to official information where refusal was an exercise

of the “censorial power of an information monopoly”.17

In the United Kingdom, a statutory right to publicly-held information (see below) was

introduced by the Freedom of Information Act 2000 (“FOIA”) to fulfil a manifesto

9 Stephen Sedley, Information as a Human Right in Jack Beatson et al (eds), Freedom of Expression and Freedom of Information, Essays in Honour of Sir David Williams (OUP 2000) 10 UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“Aarhus Convention”) (25 June 1998) 11 ibid at Article 4 12 ibid, 10th recial 13 Claude-Reyes v Chile (Inter-American Court of Human Rights, 19 September 2006) 14 Respectively: American Convention on Human Rights “Pact of San José, Costa Rica” (B-32), Article 13 15 European Convention on Human Rights (“ECHR”), Article 10 16 Guerra v Italy (1998) EHRR 357 17 Társaság a Szabadságjogokért v Hungary [2009] ECHR 618 at 36 followed by Kenedi v Hungary [2009] ECHR 786 and in the UK in Sugar v BBC [2012] UKSC 4

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commitment by the Labour Party in 1997 to foster more open government18 with an

expressed aim in the “transparency” category.

There are many specific aims under this broad heading. Hazell19 identifies at least

twelve, of which the following 6 are most frequently referred to in the official British

literature:

a) Increasing the openness and transparency of government20

b) Increasing the accountability of government21

c) Improving the quality of government decision-making22

d) Improving public understanding of government23

e) Increasing public trust in government24

f) Increasing public participation in government25

The value to the wider economy of information held by the state was officially noted

in the European Union as early as 1989 when the Commission of the then European

Communities encouraged the governments of member states to allow basic

informational materials to be exploited by the private sector.26 This was followed up a

18 New Labour: Because Britain Deserves Better Labour Party Sales (April 1997) available from http://www.labour-party.org.uk/manifestos/1997/1997-labour-manifesto.shtml, under heading “we will clean up politics” (retrieved on 30 October 2012) 19 Robert Hazell et. al. The Impact of the Freedom of Information Act on Central Government in the UK, Does FOI Work? (Palgrave Macmillan 2010) page 18 20 Secretary of State for Work and Pensions v Information Commissioner App No EA/2006/0040 (Information Tribunal, 5 March 2007) [29]; Office of Government Commerce v Information Commissioner [2008] EWHC 737 (Admin) [71] 21 ICO DN FS50121684 (Department for Culture Media and Sport) 3 December 2007 [18] 22 Committee on Public Administration, Freedom of Information Draft Bill (HC 1998-1999, 570-I) para 153. This aim does not appear to have been cited in any ICO or tribunal decision. 23 Guardian Newspapers v Information Commissioner App No EA/2006/0011 and 13 (Information Tribunal, 19 April 2008) [132] 24 Justice Committee, Post-legislative scrutiny of the Freedom of Information Act 2000, First Report (HC 2012-2013, 96-I) paras 35-38 25 FS50121684 (n 2) 26 Commission of the European Communities, Guidelines for improving the synergy between the public and private sectors in the information market (OOPEC 1989)

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decade later by a Green Paper on public sector information27 which ultimately lead to

the directive on public sector information.28

The UK government appears to have been slow in setting a policy objective of

opening access to publicly-held information for re-use, beginning in 1996 with the

commissioning of a Green Paper on Crown Copyright for that purpose.29 The FOI

White Paper30 does not argue for any economic benefits arising from FOI.

In the UK, an economic rationale first came to popular notice in an article in the

Guardian which argued that government should not be trying to exploit the data it

possesses but should “free” it so that private individuals could do so.31 The

Guardian’s argument was not the obvious rightist position that government not

engage in economic activities at all and therefore should leave exploitation of data

resources to the private sector, rather it argued that we are in a period of intense

innovation where new applications for data are being developed all the time and being

delivered through the internet, either via the web or increasingly via “apps” for

mobile telephones. Governments in general have a poor track record for designing IT

systems and are unable to provide sufficient innovation, whereas opening up the data

would allow a much larger number of developers to work on new applications.

The Guardian also argued that governments are often uniquely able to acquire or

create high quality public data. In some cases they will be the definitive source, eg,

Companies House maintains a definitive register of companies.

There is a powerful resonance with the general public that data paid for using public

funds “ought” to be made available to the public. It is “our” data.

27 European Commission Public Sector Information: a Key Resource for Europe COM(1998) 585 28 Directive 2003/98/EC of the European Parliament and of the Council on the re-use of public sector information (“PSI Directive”) (O.J. No. L 345, 31.12.2003, p.90) 29 Cabinet Office, Crown Copyright in the Information Age (Cm 3819, 1998), paragraph 1.2 30 Cabinet Office, Your Right to Know (Cm 3818, 1997) 31 Charles Arthur and Michael Cross, Give us back our crown jewels The Guardian, Thursday 9 March 2006 available from http://www.guardian.co.uk/technology/2006/mar/09/education.epublic (last accessed 11 April 2013)

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Following a review into the value of government data,32 the government is committed

to the use of information it holds not only for transparency but as a “significant driver

of economic activity”.33 The most recent policy statement on transparency, includes

an aim that business use government information in their own goods and services.34

Official UK FOI policy may now be characterised as having both civic and economic

aims and hence the impact of copyright on FOI should be considered from that

perspective.

B. Aims of copyright

Many and varied arguments have been put forward as the basis for copyright.35 36

These fall broadly into two categories: the teleological and the deontological.

The principal teleological justification for copyright is utilitarian. The thesis is that

copyright provides an environment in which the production and dissemination of

works is most economically efficient.37

A second thread of teleological justification is that copyright serves a wider social

welfare function than simply economic efficiency through the encouragement of the

production of culturally valuable works and as an engine of freedom of expression.38

32 Ed Mayo and Tom Steinberg, The Power of Information: An independent review (June 2007) 33 Prime Minister’s Office, Letter to Cabinet Ministers on transparency and open data (7 July 2011) available from https://www.gov.uk/government/news/letter-to-cabinet-ministers-on-transparency-and-open-data (last accessed 3 June 2013) 34 Cabinet Office, Improving the transparency and accountability of government and its services (policy statement 2 May 2013) available from https://www.gov.uk/government/policies/improving-the-transparency-and-accountability-of-government-and-its-services (last accessed 3 June 2013) 35 Martin Kretschmer and Friedemann Kawohl, 'Chapter 2: The History and Philosophy of Copyright' in Simon Frith et al (eds) Music and Copyright, (Edinburgh University Press 2004); William Fisher, “Theories of Intellectual Property” in Stephen Munzer (ed), New Essays in the Legal and Political Theory of Property (CUP 2001) 36 See the introduction to Annabelle Lever (ed) New Frontiers in the Philosophy of Intellectual Property (CUP 2012) and (for an example of an unusual perspective) see in that volume Abraham Drassinower, Copyright infringement as compelled speech 37 William Landes and Richard Posner, An Economic Analysis of Copyright Law (1989) 18 J Leg Stud 325

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Broadly speaking, both threads focus on copyright’s incentivisation function. An

author is more likely to invest in producing and disseminating works if they know that

they will have a property right in the work which they can exploit and recover the

costs of production and dissemination.

Deontological justifications fall into two main categories. First, an extension of

Locke’s labour theory to intellectual property. Locke argued that, in the natural state,

property rights are created when an individual combines their labour with material

drawn from the commons. Their right to the property in what they have created is

because it represents the fruits of their labour.39 By extension, the author of a work

has combined their labour with the intellectual commons and is therefore entitled to a

property right in their work. 40

A second group of deontological approaches, which one might label “personality

theory”, argue for an author’s right to control the use of their works on the basis that

an authorial work represents the personality, or genius, of the author. This argument is

articulated as early as 1763 by Diderot41 and developed by Kant and Hegel.42

This approach became popular in France, where revolutionary copyright law favoured

the author over the publisher (for example by investing authors with inalienable but

inheritable rights)43 and Prussia.44 The “personality theory” has been particularly

influential in civil law systems. It encompasses rights of a non-economic character,

such as the right not to have a work dealt with in a way that harms the artistic

integrity of the work. 45

38 Fisher (n 35) p170; Neil Weinstock Netanel, Copyright’s Paradox (OUP 2008) 39 John Locke, Second Treatise of Civil Government (1690) chapter V s27 40 Fisher (n 35) p170; Kretschmer (n 35) p26; for an argument that this is an improper application of Locke’s theory see Seana Shiffrin, “Lockean Arguments for Private Intellectual Property” in Munzer (n 35) 41 Kretschmer (n 35) p33 42 Fisher (n 35) p171 43 Christophe Caron, Droit d’auteur et droits voisins (LexisNexis 2009), page 24 44 Kretschmer (n 35) p33 45 Fisher (n 35) p171

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Kretschmer argues that the international system of copyright, represented by treaties

beginning with the Berne Convetion, is a combination of utilitarian and personality

approaches.46

In the UK, the first draft of the first statutory copyright law (the Statute of Anne47)

referred to the “undoubted Property” rights of the author.48 In the bill’s passage

through Parliament, all reference to a prior property right of the author were

removed.49 The final preamble was utilitarian in character, expressing the Act’s

purpose as being “for the encouragement of learned men to compose and write useful

books.”50

A utilitarian approach was expressly followed in the United States, where the

Constitution permitted Congress to create laws “To promote the progress of science

and useful arts”51 a phrase reminiscent of the economic aim of the Swedish freedom

of information act.52

Copyright is, today, protected in the UK by the Copyright, Designs and Patents Act

1988 (“the 1988 Act”) which has no statement of purpose analogous to the preamble

of the Statute of Anne. Modern government policy is teleological. Copyright is seen

as an engine of economic growth and general social welfare.

The sui generis database right is wholly utilitarian in character, being directed at the

protection of the database maker’s investment.53

Given that this essay compares two UK systems of law, both of which are founded, in

official discourse, in wholly utilitarian considerations, this essay will concentrate only

on utilitarian arguments when assessing the proper approach to conflict between the

two systems.

46 Kretschmer (n 35) p22 47 Statute of Anne, 8 Anne c.19 48 Ronan Deazley, On the Origin of the Right to Copy (Hart 2004), p41 49 ibid 50 Statute of Anne, preamble 51 US Consitution, Art 1, s.8 52 See p3 above 53 Database Directive (n 3), recital 40

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III. The current state of the law

A. Freedom of information in the UK

Two principle regimes now govern the release of information by public bodies in the

whole of the UK:54 the Freedom of Information Act 2000 (“FOIA”) and the

Environmental Information Regulations 2004 (2004/3391) (“EIR”). The FOIA is

complementary to the EIR – information subject to the EIR is excluded from the

operation of the FOIA.55

Both the FOIA and EIR impose two principal duties on “public authorities”: a duty to

publish (at least some) information;56 and an individual right of access to

information.57 The definitions of “public authority” overlap but are not identical. In

both cases, the right to information is not limited to natural persons nor, it would

seem, to those with some connection to the UK.

The requestor may also express a preference for the format in which the information

is to be supplied, including machine-readable form or email, with which preference

the public authority will ordinarily have to comply.58

The FOIA defines “public authority” exhaustively:59 a public authority is either one

described in Schedule 1 of the Act or a company wholly owned by a public

authority.60

By contrast, although the EIR does include a great many specific authorities in its

definition of “public authority”, including the majority of those in Schedule 1 of the

54 Scottish public bodies (broadly speaking those over which the Scottish Parliament has jurisdiction) are governed by Freedom of Information (Scotland) Act 2002 (“FOIS”) and the Environmental Information (Scotland) Regulations 2004. The Scottish laws are in most respects identical to their UK-wide equivalents, but one significant difference is the treatment of academic research (n. 152 below) 55 FOI s39 56 FOI s19 (in so far as an approved “publication scheme” requires it); EIR reg4 57 FOI s1; EIR reg5 58 Sec 11, FOIA ; reg 6, EIR 59 FOIA, s.3 60 FOI, s.6

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FOIA61 it includes a functional definition so that any body not otherwise listed that

“carries out functions of public administration” is a public authority for the purposes

of the EIR.62

The difference between the two definitions is not relevant to this discussion and so the

term “public authority” herein is used loosely to cover any body which is required –

in the particular context – to release information to the public.

The individual right has been understood to be “applicant and motive blind”.63 That

is, that the public authority is not permitted to refuse release on the basis of the

identity of the applicant nor the purpose behind the request. 64

Both schemes excluded certain classes of information from release.65 Under the FOI

exemptions are divided into “absolute” – where the information must not be released

– and “qualified” – where the public authority may only withhold releasing

information if the public interest in withholding outweighs the public interest in

disclosure.66 Under the EIR all exemptions, other than for personal data, are

essentially “qualified”.

B. Copyright in the UK

Copyright gives the authors of works a number of exclusive rights over the use to

which their works may be put. These rights have been harmonised (to a certain extent)

by a series of EU directives. Two are of particular importance for our enquiry.

61 EIR, reg2(2)(b) 62 EIR, reg 2(2)(c) 63 S v Information Commissioner and the General Register Office (EA2006/0030 9 May 2007), 64 Information Commissioner’s Office, Freedom of Information Good Practice Guidance No 6, version 1.0 [October 2007] available from http://www.ico.org.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/motive_blind_v1.0_25_10_071.pdf (last accessed 11 April 2013) 65 FOI in ss. 21-44; EIR in reg 12-15 66 FOI s2(1)(b); EIR reg 12(1)(b)

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a) the reproduction right67 – the right to create copies of the work, in UK law

described as a right to copy;68

b) the right of communication to the public,69 which includes a right of “making

available to the public” such as placing on a website.70

Digital use of a work will almost always require that it is copied in whole or in part

inside a device’s memory. Thus, while reading (without speaking aloud) a paper

document would not engage copyright, reading the same document in electronic form

almost certainly will. Hence, in the digital world mere “use” of a work will

increasingly require a licence from the copyright owner.

IV. The interaction of copyright and FOI regimes

A. The law prior to the FOIA and EIR

The common law right to inspection of documents described above came with an

implied right to take copies.71 Even where the right arose by statute, there was an

implied right to take copies, in the absence of any express exclusion or some other

reason, eg, where inspection might alone be required for any legitimate purpose, or

where copying and handling a document might destroy or damage the original.72

The principle73 appears to be based in part on the general practice of the courts when

ordering inspection to also order that copies be taken, but also demonstrate a concern

67 Article 4 Software Directive (2009/24/EC, consolidating changes to 91/250/EC), Article 2 Information Society Directive (Infosoc) (2001/29/EC), Article 5 Database Directive 68 Section 16(1)(b) Copyright, Designs and Patents Act 1988 (“1988 Act”) 69 [ref] Berne Convention, A3 (Infosoc), A5[??] (database directive), s16(1)(d) 1988 Act 70 Article 8 WCT [ref], [ref for 1988 Act] 71 Mutter v Eastern and Midlands Railway Company (1888) 38 Ch. D. 92 at 105, per Lindley LJ (reviewing the common law) 72 ibid 73 Ibid

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that the statutory right to inspect copies of a company’s stockholders not be rendered

“illusory”. 74

While the English courts thus readily inferred a right to copy from a right to

inspect,the question of copyright in these documents appears never to have been

raised even though most such documents would likely have been protected, by

copyright law since 1710.75 Perhaps the noted rarity of claims for copyright

infringement at common law76 meant that the judges of the King or Queen’s Bench –

out of which a writ of mandamus would have issued – were unfamiliar with copyright

law. Indeed, one can point to the non-specialist judge’s surprise at the reach of

copyright even in recent times. Consider, eg, Buxton LJ’s surprise on discovering that

publication of a solicitor’s letter might be an infringement of copyright.77

Some statutory provisions permitting inspection included an express right to take

copies. For example section 15 of the Audit Commission Act (“ACA”) 1998 permits

interested persons to inspect and make copies of an extensive class of materials on

which annual audits of local authorities are based.78

Section 50 of the 1988 Act permits the copying of copyright protected works where

the copying is done under express statutory authority.79 Thus, in the case of the

section 15 ACA regime of inspection there is no conflict between it and copyright.

B. Copyright and release under the EIR

Article 4(4)(e) of the Aarhus Convention permits (but does not require) the refusal of

disclosure if it would “adversely affect” intellectual property rights. But that ground

74 Companies Clauses Act, 1845 (8 Vict. c. 16), ss. 9, 10, 45, 63 and Companies Clauses Act, 1863 (26 & 27 Vict. c. 118), x. 28 75 8 Anne c. 19 76 See particularly chapter 5(2) of Ronan Deazley, On the Origin of the Right to Copy (Hart 2004) 77 Musical Fidelity v Vickers [2002] EWCA Civ 1989 78 Interaction of s.15 Commission Act 1998 and the Freedom of Information Act 2000 & the Environmental Information Regulations 2004, Policy Briefing Note, Information Commissioner. 79 As does para. 6, schedule 1, Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) in respect of the database right

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for refusal must be interpreted restrictively and any decision to refuse disclosure must

take into account the public interest.

The exclusion is not intended to allow member states to exempt intellectual property

rights as a general rule. The Aarhus Compliance Committee (“ACC”) had held that

“the issue of ownership” was not relevant where the release of environmental impact

assessments were in issue. 80

For example where access was sought to an environmental impact assessment

(“EIA”), the ACC doubted that the exemption would ever apply in connection with an

EIA81 because EIA’s are prepared “for the purposes of the public file” and so the

author is not entitled to use intellectual property rights to prevent the information

from being disclosed.82

The ACC clearly links the purpose for which a document was created (in this case,

that it form a part of the “public file”) and the propriety of allowing copyright to be

used to prevent its dissemination.

Article 2(e) of the EID provides to the same effect. The rider in the Aarhus

Convention being expressed as:

“The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in

a restrictive way, taking into account for the particular case the public interest

served by disclosure. In every particular case, the public interest served by

disclosure shall be weighed against the interest served by the refusal.”

80 Decision of the Aarhus Compliance Committee, Ukraine ACCC/C/2004/03; ECE/MP.PP/C.1/2005/2/Add.3, 14 March 2005 para. 31 downloaded from http://www.unece.org/fileadmin/DAM/env/documents/2005/pp/c.1/ece.mp.pp.c1.2005.2.Add.3.e.pdf on 4 June 2013 81 Decision of the Aarhus Compliance Committee, Romania ACCC/C/2005/15; ECE/MP.PP/2008/5/Add.7, 16 April 2008 para. 30 downloaded from http://www.unece.org/fileadmin/DAM/env/documents/2008/pp/mop3/ece_mp_pp_2008_5_add_7_e.pdf on 13 September 2012 82 ibid, paras 28-29

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The equivalent UK provision,83 which is identically worded, was considered in

Information Commissioner v T-mobile84 where an NHS employee requested

disclosure from Ofcom of a database including the locations of mobile telephone

masts. The Information Commissioner had refused access on the ground that the

database was protected by copyright and database rights belonging to the mobile

phone operators.

In analysing the meaning of the exemption for “intellectual property”, the Information

Tribunal held that “adversely affect” is narrower than “infringe”85 so that the

exemption for intellectual property does not even apply where any infringement

would be technical. On the facts of the case the Tribunal found that there would be an

adverse affect on T-mobile’s intellectual property rights.86

One adverse factor identified by the Tribunal relied on a finding that was no implied

copyright licence to use information released under the EIR. This meant that any

release could risk further infringements of T-mobile’s intellectual property rights and

the increased difficulty for T-mobile in policing its intellectual property rights was an

adverse effect on those rights.87

Nevertheless, the Tribunal held that the public interest in maintaining the exemption –

i.e. in protecting T-mobile’s intellectual property rights – was outweighed by the

public interest in disclosure.88 What this means is that, in principle at least, the EIR

may require the release of information which remains subject to private intellectual

property rights.

83 EIR regulation 12(5)(c) 84 EA/2006/0078, 4 September 2007, Information Tribunal, at paragraph 47 85 ibid [47] 86 ibid [49] 87 ibid [51] upheld on appeal on this point R (Offcom) v Information Commissioner [2008] EWHC 1445 (Admin) [41-42] 88 ibid [62]; the matter was appealed to the Supreme Court [2010] UKSC 3 on other grounds and, on remission, the decision to order release of the information was upheld (Information Tribunal, 12 December 2012)

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C. Copyright and release under the FOIA

There is no specific exemption for information subject to intellectual property rights

in the FOIA analogous to that in the EIR. Thus, it is necessary to consider which

other exemptions might encompass interests of the nature of copyright.

For example, there is an exemption from disclosure where release would prejudice the

commercial interests of any person.89 That exemption is qualified90 and so does not

apply unless the public interest in its maintenance outweighs the public interest in

disclosure. It will therefore serve to prevent the release of some material which is the

subject of private copyright, but not all.

The FOIA also contains an absolute exemption for information, the disclosure of

which, would be “prohibited by or under any enactment.”91 Arguably, the making of

any copy and its distribution via release of any copy of a copyright work under FOIA

would comprise an infringement of the reproduction right, requiring permission of

the copyright owner. If the public authority is not, or does not have the permission of

the copyright owner, then release would be “prohibited by or under any enactment”.

Then the information would be exempt and there would be no requirement for it to be

released.

The Information Commissioner has reasoned the other way.92 His argument is that

section 50 of the 1988 Act provides that where copying or publishing a work is

specifically authorised by an Act of Parliament, to do so is not an infringement. The

FOIA specifically authorises release and so release is not an infringement.

The difficulty with this reasoning is that it seems to beg the question. Section 50 of

the 1988 Act only applies where copying or publishing is “specifically authorised”. It

will therefore only apply if the FOIA does specifically authorise release, which is the

89 FOI, s43 90 FOI, s2 91 FOI, s44. 92 Intellectual property rights and disclosures under the Freedom of Information Act (Information Commissioner’s Office) version 1 p5, downloaded from http://www.ico.gov.uk/for_organisations/guidance_index/~/media/documents/library/Freedom_of_Information/Detailed_specialist_guides/intellectual_property_rights_and_disclosures_under_the_foia.ashx on 13 September 2012

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very point in question. In order to decide whether release is authorised, the logic of

the FOIA requires that the exemptions from release are considered first. That in turn

requires that a public body consider whether section 40 applies, before the question of

authorisation can be answered. In other words: the Information Commissioner may be

applying the sections in the wrong order.

The Information Commissioner’s views are endorsed by the Department of Justice’s

FOI team93 and are reflected in the way they advise central government on the

operation of the FOIA. But not all departments agree with the ICO’s advice.94

The FOIA provides for a statutory code of practice95 to be made by the Secretary of

State96 and enforceable by the ICO.97 The code of practice does not itself mention

intellectual property. Thus the ICO’s guidance is strictly speaking extra-statutory. The

ICO’s role in enforcing the code of practice and in enforcing the individual right of

access to information98 mean that in practice his view as to the interrelationship

between copyright and FOIA will, unless overturned by a higher authority, prevail in

any decision by him as to whether to order release. But the ICO has no authority in

any potential claim for copyright infringement and so his views are not controlling as

to infringement.

Thus, the current approach of the Information Commissioner is that, having

established that the grounds for release of a document under the FOIA have been

made out, a public authority must release it even where the documents are protected

by private copyright. This applies even if the person requesting the information asks

that the document be supplied to an email address which will cause automatic

93 Interview with the Ministry of Justice Freedom of Information Policy and Strategy team. FOI team, 13 October 2009. Notes of interview on file with author. 94 For example: submissions of the Ministry of Defence to the Hargreaves Review at paragraph 8, available at http://www.ipo.gov.uk/ipreview-c4e-sub-mod.pdf (last accessed 9 April 2013) 95 Secretary of State for Constitutional Affairs, Code of Practice on the discharge of public authorities' functions under Part I of the Freedom of Information Act 2000 (November 2004), available from http://www.justice.gov.uk/downloads/information-access-rights/foi/foi-section45-code-of-practice.pdf (last accessed 5 June 2013) 96 FOIA s45 97 using a practice recommendation – FOIA s48 98 by decision notice – FOIA s50

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publication of the document to a website and thereby the automatic infringement of

copyright in the document by a third party.99

D. Copyright and re-‐use

Apart from a special regime proposed for datasets (see below), neither the FOIA nor

the EIR make any provision for re-use of the information released and, in particular,

make no mention of the effect of copyright on the forms of re-use.

There is, at present, little to prevent a public body from restricting re-use by asserting

its own copyright. Where a third party owns copyright in a work contained in a

document released under FOIA and EIR, the recipient of that document appears to

have no right to do anything further with that work electronically, including reading

it on his computer (if the document is in electronic form). However, another statutory

regime, implementing the EU’s Directive on the Re-use of Public Information has

relevance here and is examined below.

E. General re-‐use of public sector information

The Re-use of Public Sector Information Regulations 2005 (“RPSI”), implement the

Re-use Directive100 and place some limits on the ways in which some public

authorities may restrict use of information they release, as further detailed here. It is

notable, however that the RPSI have limited application. Firstly, they do not apply to

any material in which there is a third-party copyright. 101 This would appear to

include not only copyright owned by private individuals but also a public sector body

different from the one supplying the information. Secondly, various classes of public

sector bodies are excluded.102

99 Information Commissioner, decision notice FS50276715 (7th June 2010) available from http://www.ico.org.uk/~/media/documents/decisionnotices/2010/FS_50276715.ashx (last accessed 12 April 2013) 100 Directive 2003/98/EC of the European Parliament and of the Council on the re-use of public sector information (“PSI Directive”) (O.J. No. L 345, 31.12.2003, p.90) 101 RPSI, reg 5(1)(b) 102 Public service broadcasters (regulation 2(d)); Educational institutions (regulation 2(e)); Cultural institutions such as museums, libraries, archives and theatres (regulation 2(f)

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The RPSI do not place any obligation on a public-sector body to permit re-use they

simply impose constraints on the ways in re-use may be permitted103 and on the

process adopted by a public-sector body in responding to requests for re-use.104 A

public-sector body may impose conditions on re-use,105 which must not unreasonably

restrict re-use or competition, and may charge for re-use.106

Thus a public sector body that was minded to prohibit re-use of information supplied

pursuant to the FOIA or EIR would not be restricted from doing so by the RPSI.

For example, in Compass-Datenbank v Republik Österreich,107 a company that

published economic data had been using data from the Austrian register of companies

(the Firmenbuch) in electronic form without restriction or charge prior to 2001. In

2001, a new law was introduced that organised data distribution through authorised

re-sellers who would collect charges for the use of the data. The law prevented any re-

publication or re-duplication of the company data by recipients such as Compass-

Datenbank.108

Austria had transposed the PSI Directive but had not chosen to include the data

released by the Firmenbuch within its scope. The CJEU held that the PSI Directive

had no application and therefore did not prevent the Firmenbuch from refusing

permission for re-use to Compass-Datenbank.109

The European Commission consulted on the operation of the PSI Directive.110 Many

respondents complained of restrictive re-use conditions and supported simplified

licensing conditions and an obligation to permit re-use.111

103 RPSI, reg 6 104 RPSI, regs 8-10; e.g. that a response must be prompt 105 RPSI, reg 12 106 RPSI, reg 15 107 C-138/11 (CJEU Third Chamber, July 2012) 108 ibid [20] 109 ibid [50] 110 European Commission, Proposal for a Directive of the European Parliament and of the Council amending Directive 2003/98/EC on re-use of public sector information, COM (2011) 877 final, page 6 (available from http://ec.europa.eu/information_society/policy/psi/docs/pdfs/opendata2012/revision_of_PSI_Directive/proposal_directive_EN.pdf (accessed on 6 June 2013)

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In response, the Commission proposed an amended directive which includes a general

principle that documents should be available for re-use for commercial as well as non-

commercial purposes.112 Documents subject to third-party copyright would remain out

of scope.113 At present the proposal is subject to the co-decision procedure.

Other EU countries expressly deal with copyright. For example, France has a freedom

of information law, dating back to the 1970’s.114 Public information may be freely re-

used by the recipient of disclosure but information which is subject to third party

intellectual property rights is excluded from the definition of “public information”.115

An administrative body refusing disclosure on that ground must give details of the

person to whom those rights belong (if known).116

The right to environmental information is a constitutional right, forming a part of the

Charte de l’environnement 2004.117 The modalities of access are governed by Chapter

IV, Title II, Book I of the Code de l’environnement.118 It appears that it is only

emissions data which may be withheld on the basis that release would interfere with

intellectual property rights.119

Intellectual property rights may not prevent release, but will continue to bind the

applicant for information in the manner that they use the information received.120

111 ibid, page 6 112 ibid, page 16, article 3(1) 113 ibid, recital 7 114 Loi n° 78-753 du 17 juillet 1978 portant diverses mesures d'amélioration des relations entre l'administration et le public et diverses dispositions d'ordre administratif, social et fiscal 115 ibid, art 10 116 ibid, art 25 117 Loi constitutionnelle n° 2005-205 du 1er mars 2005 relative à la charte de l’environnement (article 7). 118 Code de l’environnement : articles L. 124-1 à L. 124-8 et R. 124-1 à R. 124-5 119 L. 124-5 120 Circulaire du 18/10/07 relative à la mise en œuvre des dispositions régissant le droit d’accès à l’information relative à l’environnement

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V. Problems

The interaction of freedom of information and copyright may lead to problems

situations of two kinds: (i) those where the potential conflict “makes no sense”, that

is, it cannot be supported for any logical reason and (ii) those where a conflict

between the aims of copyright and freedom of information exists. While each will be

considered below, it is posited that logical problems should be dealt with by adjusting

the statutory regime so as to eliminate them; whereas a conflict between the aims of

the two systems requires a balancing exercise between competing norms.

A. Logical Problems

No express right to release

As previously noted, it is far from clear that public bodies are permitted to release

under the FOIA works in which third party copyright subsists, despite the ICO’s

confident reliance on section 50.

The FOIA already contains control mechanisms to protect private interests such as

privacy,121 confidentiality,122 trade secrets and other commercial interests.123 If

copyright is intended to protect any other private interest, then it – or more generally

“intellectual property” – could be added to that list of control mechanisms as it is for

the EIR.124

The omission of any express right – for example in the form of an exception to

copyright in the 1988 Act – to release documents containing third party copyright

does not seem to have caused any difficulty to date. Nevertheless, if the law is

intended to permit release of documents protected by private copyright it would be

better to have a clear statutory statement to that effect.

No right to use by the applicant

The position after release is similarly unsatisfactory. Nowadays the majority of

requests will be for documents in digital form and digital use will become

121 FOIA s40 122 FOIA s41 123 FOIA s43 124 EIR reg 12(5)(c)

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increasingly dominant as physical documents are used less often for official purposes.

As has been discussed most uses and re-uses of a released document by its recipient

will, on the face of it, be infringements of copyright in that document.

There may of course be defences available to the applicant, for example “private

study and research”125 but that no longer includes any form of commercial research126

and in any event requires that the use be “fair dealing”. The constraint of “fairness” is

problematic because its exact boundaries are uncertain. It has been said to be a

“matter of impression” for the judge.127 Potential defendants have no certainty as to

what may safely be copied.128

In some cases the document will be the subject of an express licence, such as the

Open Government Licence129 or be in the public domain. But none of these

alternatives will apply in every case and may, in each case, be highly fact sensitive.

Given that the FOIA provides for an express right to receive a document in digital

form130 it is illogical for a recipient to be unable at least to read or otherwise interact

with the document they have been sent. If the intention was to prevent them from

doing so, then FOIA should have been designed to prevent release in the first place.

If the document is subject only to the copyright of the requested public authority then

the authority could give its consent – although some bodies have tried to impose

conditions on re-use as part of that consent.131 If there is third party (public or private)

125 Section 29 CDPA 1988 126 Since 31 October 2003, regulation 9 of the Copyright and Related Rights Regulations 2003 (SI 2498/2003) 127 Hubbard v Vosper [1972] 2 QB 84, 94 per Lord Denning MR 128 Robert Burrell and Allison Coleman, Copyright Exceptions, The Digital Impact (CUP 2009) at p59 129 See under “licensing” p31 below 130 Section 11 FOIA 131 See for example: Tamworth Borough Council imposing a restriction on commercial use (https://www.whatdotheyknow.com/request/details_of_empty_commercial_prop_902); Richard Taylor, Southampton Uni Reluctant to Set Information Free, mySociety blog, available at http://www.mysociety.org/2009/09/12/southampton-uni-reluctant-to-set-information-free/ (last accessed 9 April 2013)

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copyright in the document it would have no power to give permission nor could a

licence be implied.

No right to republish the response

Having obtained a response, many applicants may wish to republish it. For example, a

popular tool for this purpose is the website www.whatdotheyknow.com (“WDTK”),

which allows an FOI request to be made to the vast majority of public authorities. The

website automatically publishes all correspondence received from the public

authority, including any response.

The republication of a released document to the world, for example on the world wide

web, is a potential infringement of the right of communication to the public (it

amounts to “making available”) again requiring permission of the copyright owner.

A public authority might be concerned that, in replying to an FOI request made

through WDTK, they are taken to have consented to the republication on the website

of any document included in their response. If that document contains public

copyright, they could be taken to licensing it for web publication. If that document

contains private copyright, they might be implicated in any infringement caused by its

republication.

But if a document may properly be requested by anyone in the world – that is if it is

proper to release to one individual it must, under the principle of applicant blindness,

be proper to release to anyone. Publishing to the world the document as received

does not make copies available to those who would not otherwise be able to obtain

them. It simply makes it easier for others to obtain a copy.

The Information Commissioner agreed in a decision requiring Parliament to release

material to an email address supplied by an applicant, even though that would result

in automatic publication on the WDTK website.132

If it is once accepted that a document should be released it makes no sense to prevent

its dissemination to the world via the internet. If republication were prohibited a

recipient could publish the existence of a document on the web with instructions as to

132 Decision notice FS50276715 (n. 99 above)

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how to obtain it. Anyone wanting to see it could do so at the press of a button – it

would simply take them longer.

If there are any legitimate concerns about the effect of republication on any interest

legitimately protected by copyright, those should be considered at the time of release.

There is thus a second logical problem. The recipient of any released document ought,

as a matter of policy, be able to republish it and a public authority may not refuse

solely on the ground that it will be republished, but that publication is still a prima

facie copyright infringement.

No right to proactively disseminate

As well has having a duty to publish information in accordance with their publication

scheme, public authorities have an interest in wide dissemination of a released

document as it prevents their having to duplicate the release many times with

concomitant administration costs.

Better still a public authority might want proactively to release documents in

anticipation of freedom of information requests in order to save those costs. Private

copyright in the documents will often prohibit such a strategy because the public body

has no right to publish them even though (at least on the ICO’s interpretation) they are

releasable on request.

For example, the most frequent freedom of information request received by the

Ministry of Defence (MOD) is for details of reports of UFO sightings that it has

received. The requests require considerable resources to process. The MOD has

indicated that it would prefer proactively to publish the UFO reports online so as to

save resources but is unable to do so because of third party copyright in the UFO

reports.133 Privacy and data protection concerns implicated by release are capable of

being overcome through suitable redaction or anonymisation as they would have to be

on release under FOI.134

133 Submissions of the Ministry of Defence to the Hargreaves Review, available at http://www.ipo.gov.uk/ipreview-c4e-sub-mod.pdf (last accessed 9 April 2013) 134 FOIA, s40

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It makes no sense for a public authority to have an obligation to supply documents on

request but no right proactively to publish them. The Intellectual Property Office

estimates that proactive release would save £1.6 - £3 million in public funds.135

B. Wider policy conflicts

A solution to the logical problems discussed above could be to carve out just

sufficient space within copyright to avoid logical contradictions. But is a minimal

reform of copyright sufficient or should the law go further?

Public bodies are capable of using copyright as a means of suppressing information,

for example the Bavarian government, the holder of copyright in Mein Kampf

prevented its publication in Germany for most of the post War period by asserting its

property right.136

It might be argued that Public bodies do not need the protection of copyright as an

incentive to create works used in public administration – they will make those

anyway. Ministerial memos, departmental reports and so on would be created in the

normal process of public administration and need no incentivisation. Therefore no

copyright protection is required. This approach has been adopted for works created by

the United States federal government.137

The first objection to this argument is that intellectual property rights could be

valuable to a public body, enabling it to extract value – through licensing – of the

works. Income so generated would reduce the cost of running the public service.

For example the Royal Mail maintains for its own purposes a database of postal codes

and associated data known as the Postcode Address File (PAF). The PAF is valuable

135 Intellectual Property Office, Use of works for public administration and reporting Impact Assessment No BIS0309, available at http://www.ipo.gov.uk/consult-ia-bis0309.pdf (last accessed 9 April 2013) 136 David Gordon Smith, Putting Hitler Back on the Shelves: Should Germany Republish 'Mein Kampf'? Spiegel Online International retrieved from http://www.spiegel.de/international/germany/putting-hitler-back-on-the-shelves-should-germany-republish-mein-kampf-a-494891.html (last accessed 5 April 2013) 137 17 USC 105; Marvin Nodiff, Copyrightability of Works of the Federal and State Governments under the 1976 Act, (1984-1985) 29 St. Louis U. L.J. 91 at 94; see discussion below under “licensing” at p31

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to many businesses and the Royal Mail is under a statutory duty to make the PAF

available on reasonable terms on request.138

A second objection is that in some cases public bodies do create works because they

contain valuable intellectual property rights. For example the Channel Four

Corporation is a public body in the United Kingdom that produces television

programmes and films for profit. The FOIA’s response is to exclude works held by

public service broadcasters such as the BBC and Channel Four for the purposes of

journalism, art or literature139 – a demarcation that has caused difficulties of

interpretation.140

Copyright may be needed if there is a policy decision to adopt a cost recovery

approach or where the activity of a public body in producing works is of a quasi-

commercial character if those works are not excluded from release.

However, copyright may not be the best mechanism for protecting a public authority’s

interests. For example although the Royal Mail has asserted a database right in the

PAF141 it is doubtful whether any such right subsists in light of the Court of Justice of

the European Union’s decision that investment in creating the materials that make up

a database do not entitle the investor to a database right142 although the point is

arguable. The CJEU did not question the assumption that database right subsisted in

the Austrian company registration data in Compass-Datenbank.143

In practice Royal Mail’s interest is protected because it holds an up-to-date version of

the PAF for which it is the definitive source.

An example problem: tree rings

Another example of the weakness of copyright to protect a public authority’s interests

is in academic research as illustrated by the case of tree ring data held by Queen’s

138 Section 116 Postal Services Act 2000 139 para. 64, Sch. 1, FOIA 140 See eg BBC v Information Commissioner [2009] EWHC 2348 (Admin); Sugar v BBC [2012] UKSC 4 141 For example Royal Mail Group v I-CD Publishing [2004] EWHC 286 (Ch), although the matter never came to trial 142 Fixtures Marketing v Oy Veikkaus Case C-46/02 [2004] ECR [2004 I-10365] 143 n 107 above

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University Belfast (QUB). QUB had collected a very large (some 11,000 samples)

collection of tree ring data over a period of 40 years. A member of the public sought

release under the EIR. QUB refused but were overruled by the Information

Commissioner.144

A central plank of QUB’s case was that its possession of the database permitted it to

attract funding – in other words as an example of a work created at least partly for

exploitation, i.e. closer to a Channel 4 rather than PAF case. The EIR have no general

exemption for the protection of commercial interests of third parties as does the

FOIA.145 So, in order to protect their commercial interests, QUB were forced to rely

on their intellectual property rights in the database146 and commercial

confidentiality.147148

The ICO rejected both arguments, holding that QUB has no intellectual property

rights in their database,149 nor was there any commercial confidentiality in it.150

In general copyright and other intellectual property rights make a poor mechanism for

protecting academic research because intellectual property rights will not protect

ideas, facts (even though collections of facts may be protected by database right) and

mathematical theories.

The problem for an academic is, having carried out research, if the preliminary work

is made available to third parties, their academic findings may be pre-empted by

others who may “free ride” on their work.

There is therefore an argument that the FOIA should not apply to academic

research.151 In Scotland there is a qualified exemption for information obtained in the

144 Information Commissioner. Decision notice FS50163282 at para [28] available at http://www.ico.gov.uk/upload/documents/decisionnotices/2010/fs_50163282.pdf (last accessed 10 April 2013) 145 FOIA, s43 146 EIR reg 12(4)(c) 147 EIR reg 12(4)(e) 148 QUB also argued unsuccessfully that the information was unfinished or in the course of completion, per EIR reg 12(4)(d) 149 ibid [59] 150 ibid [65]

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course of, or derived from, a programme of research where disclosure before

publication would (or would be likely to) prejudice substantially the programme; any

participant; or any Scottish public authority.152

The Commons Justice Select Committee recommended that a similar exemption be

included in the FOIA.153 In response the government included a provision of the

Intellectual Property Bill,154 which will add an exemption for research to the FOIA,

which is substantively identical to that in the FOISA except that “prejudice” is not

required to be substantial.

Private copyright and re-‐use

As with public copyright, a complete exclusion of private copyright from re-use risks

preventing a great deal of very useful information being available. For example,

communications between lobbyists and ministers are highly relevant to questions of

transparency but if lobbyists could use copyright to prevent their release or

dissemination that would limit the ability of freedom of information to illuminate

some areas of governance in much the same way that data protection has been used to

prevent release of the names of those attending a meeting with the European

Commission.155

From an economic perspective, bulk use of annual reports filed at Companies House

or title plans filed with the Land Registry ought to be possible but would be infeasible

if a licence had to be sought from every company or every landowner.

Two classes of document may be distinguishable.156

151 Andrew Charlesworth, Paved with Good Intentions. [2011] Computers & Law, vol 21(6), pp. 28 – 32 152 Section 27(2) FOISA 153 House of Commons, Justice Committee, Post-legislative scrutiny of the Freedom of Information Act 2000, First Report of Session 2012-13, HC 96-I (Stationary Office 2012), page 80, paragraph 214, available from http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/96/96.pdf (last accessed 11 April 2013) 154 HL Bill (2013-14) 005, clause 19 155 European Commission v Bavarian Lager Case C-28/08 156 This distinction is similar to the examination of the intention of a document’s creator employed in assessing whether a document is an “agency record” for the

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First those created solely as part of an interaction with a public body and require no

copyright incentive to produce. For example, company accounts filed with Companies

House or title plans filed with the Land Registry. These would be made even if they

attracted no copyright protection.

Such documents are also likely to be of a kind for which there is a strong public

interest in disclosure and re-use. Given that the very purpose for which they were

created requires publication, there is no justification in allowing the copyright owner

to restrict disclosure by the assertion of their intellectual property rights. This seems

to be the position adopted by the ACC in Romania.

A second class of documents are those created without reference to any public

purpose. For example a standard reference work, such as a Jane’s Fighting Ships157 is

commercially produced for sale to the public by a private undertaking copies of which

are likely to be held by public authorities . The encouragement of the protection and

dissemination of such works is a core function of copyright. If they could be obtained

by freedom of information requests and freely used by recipients, the copyright

interests of their owners would be seriously undermined.

There are likely to be many documents that fall between those two extremes. For

example the photographs requested from the FBI in Weisberg v Department of

Justice.158 Weisberg sought disclosure of photographs submitted to the FBI by TIME

Magazine relating to the assassination of Martin Luther King.159 The photographs had

been provided for a purely public purpose (the investigation by the FBI) but could be

obtained at commercial rates from the copyright owner.160 There was a strong public

interest in their disclosure but they were also commercially valuable to TIME, setting

up a potential conflict between federal freedom of information and copyright law (a

purposes of the US Freedom of Information Act. See US Department of Justice, Guide to the Freedom of Information Act, p34 (available from http://www.justice.gov/oip/foia_guide09/procedural-requirements.pdf, last accessed 6 June 2013) 157 Stephen Saunders, Jane’s Fighting Ships 2012/2013 (Jane’s Information Group 2012) 158 631 F.2d 824 (D.C. Cir. 1980) 159 ibid at [2] 160 ibid at [4]

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point on which the Court of Appeals declined to rule in the absence of TIME as a

party).161

As explained above, the FOIA and EIR are well able to protect interests in copyright

of a commercial character and so documents in the second class, once identified,

ought to pose no difficulty in deciding whether to permit release. Release will not be

ordered if the private copyright interest outweighs the public interest in disclosure.

If release is permitted, because it is in the public interest, then so should re-use, at

least of a kind that does not directly conflict with the private copyright owner’s

legitimate commercial interests. .

VI. Existing solutions

A number of mechanisms exist, or have been proposed, which go some way to

addressing both the logical inconsistencies outlined above or the balance between the

aims of freedom of information and copyright. These fall into two broad categories:

a) policy changes in the way that public bodies exercise their intellectual

property rights; and

b) legislative reform of copyright law.

In the UK, rules on licensing are the most important example of the first category and

sections 47 and 48 of the 1988 Act the most important example of the second. Both

are considered below.

Licensing

One alternative is for public bodies to licence material, either as a matter of general

policy, or as a result of legal compulsion.

As a matter of policy most works of the UK government are now available under the

Open Government Licence (“OGL”).162. The OGL permits almost all forms of re-use,

161 ibid at [19] 162 Available from http://www.nationalarchives.gov.uk/doc/open-government-licence/ (last accessed 6 June 2013)

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including commercial exploitation and adaptation. It is subject to modest conditions:

acknowledgement must be given where possible; use must not mislead and must

comply with privacy laws. The OGL is voluntary, but has been widely adopted by

central government.

Licensing has two problems. First, it can only solve problems created by public

copyright – private copyright is out of scope. Second, it relies on the continued co-

operation of government or the public authority in question.

A conceptually simple solution for public copyright might be to eliminate copyright

in public documents altogether. United States federal law provides that works of the

federal government are not protected by copyright.163 This has been said to be a

significant contributor to the US’s economic success.164 The exception works by

preventing the US government from claiming copyright in works it has created. It

may claim copyright in works assigned to it. This distinction does not appear to be

strongly principled as it means that status of a copyright work may depend on the

specific contractual arrangements put in place by a government body.

In UK law the only statutory copyright exclusion of this kind is for Parliamentary

Bills which are no longer current (i.e. after they have been enacted, or after the

session of Parliament in which they have been introduced has ended without

enactment or preservation to the next session).165 Other European countries have

various kinds of exception from state copyright of a similarly limited nature.

The US situation demonstrates that it is possible for a modern state to operate in a

situation where it is not granted copyright in the works it creates. There seems to be

no principled reason why the UK could not adopt a similar approach, at least for

central government. That would in turn prevent any issue of conflict between FOIA

and public copyright from occurring because public copyright would not exist.

163 17 USC § 105 164 Peter Weiss, “Borders in Cyberspace: Conflicting Public Sector Information Policies and their Economic Impacts” in Gerg Aichholzer and Herbert Burkert (eds) Public Sector Information in the Digital Age (Edward Elgar 2004) page 137 165 s166 Copyright Designs and Patents Act 1988

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Sections 47 of the 1988 Act

Section 47 of the 1988 Act was introduced to make it possible to copy material open

for public inspection or on a public register for certain purposes. For example to allow

planning documents to be consulted at a more convenient time.166It creates three

different exceptions to copyright:

a) 47(1) – copying of factual information

b) 47(2) – copying or issuing copies to the public of material for more convenient

access

c) 47(3) – copying or issuing copies to the public of material for certain purposes

in the public interest.

All three exceptions apply to copyright works regardless of whether the copyright is

ultimately public or private. All apply to material that is open to public inspection

pursuant to a statutory requirement (eg under s15 of the ACA). The first and third

exceptions also apply to material kept on a public register even where it is not

required to be open for public inspection.

All three exceptions require the authority of the “appropriate person”. That is the

person required to make the material open for public inspection or maintaining the

public register as the case may be. For example, the registrar of Companies House

would be the “appropriate person” for the register of companies.

In sections 47(2) and 47(3) “Issuing copies to the public” permits the giving of

individual copies to a member of the public167 but does not include publishing copies

of the work on the internet which would be an infringement of the right of

communication to the public.168

Section 47(1) permits “so much of the material as contains factual information” to be

copied from a literary work, provided copies are not issued to the public. Although

166 Hansard , HL Vol.501, col.242; Report of the Debates of the House of Commons Standing Committee E in 1988 167 1988 Act, s18 168 1988 Act, s20

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copyright does not protect facts, it does protect a work in which those facts are

contained. In practice it would be difficult to copy purely factual information without

copying a copyright work containing the information. The intention of section 47(1)

was to prevent copyright from frustrating the purpose of having a register open to the

public.169

It would permit, for example, the copying internally to its operation by a data mining

company of a set of company accounts held by Companies House. The accounts

could be copied into a computer system and then useful information extracted from

them. The exception does not permit works to be sold or traded in any way which

would infringe protected acts (such as communication to the public) other than

copying, as a result the legitimate economic interests of the copyright owner are not

adversely affected.

Section 47(1) fails properly to deal with our economic objections in several ways:

It does not apply to other forms of copyright work and in particular artistic works

which include photographs.

It fails to address the first logical problem: any form of use requires the copyright

owner’s permission. For a work that, for example, consists both of factual and non-

factual information, the whole work might need to be copied so that the factual part

could be extracted from it.

No mention is made of the creation of derivative works as part of the process (for

example by a preliminary translation step) and that might be needed as well.

By section 47(2), the copying of material and issuing copies to the public is permitted

to allow the material to be inspected at a more convenient time or otherwise facilitate

any right for which the requirement for the material to be open to public inspection

was imposed. This partially addresses the lack of a right to republish an FOIA

response discussed above although it does not permit “making available to the public”

and therefore distribution on the web.

169 n 166 above

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Section 47(3), where the material contains information about “matters of general

scientific, technical, commercial or economic interest” copies may be made and

issued to the public for the dissemination of that information. This exclusion covers

very similar ground to s47(2). It permits a wider class of acts – dissemination even for

purposes not connected with facilitating the right to information – but it has a more

limited scope – applying only to works in which a particular set of public interests are

found.

It is immediately apparent that section 47 is, at present, too narrow in scope to assist

most forms of FOI because it relies on material that is on a public register or open to

public inspection. The policy of the FOIA has been to create general principles (an

obligation to publish and an individual right to inspect) to promote access to

information. These principles are the logical successors to rights of public inspection

assisted by section 47. It seems logical to extend section 47 to encompass material

released pursuant to the FOIA or EIR.

If that were done, the three section 47 exceptions would go a long way to dealing with

the problems I have outlined. The MP Fiona O’Donnell proposed an unsuccessful

amendment to the Enterprise and Regulatory Reform Bill170 to that effect.

Section 48 of the 1988 Act

Section 48 of the 1988 Act applies to any literary, dramatic, musical or artistic work

which has been communicated to the Crown for any purpose:

a) in the course of public business;

b) by or with the licence of the copyright owner; and

c) a document or other material thing recording or embodying the work is owned

by or in the custody or control of the Crown.

If the work is unpublished, the Crown may then copy the work or issue copies to the

public for the purpose for which it was given or any related purpose which could

170 House of Commons, Tuesday 17 July 2012, Public Bill Committee Proceedings, Enterprise and Regulatory Reform Bill (sixteenth and seventeenth sitting), NC 16.

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reasonably have been anticipated by the copyright owner. The Crown and copyright

owner may agree otherwise.

Section 48 could be used as a basis for release (avoiding the first logical problem) and

also allow proactive publication, but for this purpose it is deficient in several respects:

a) it applies only to the Crown and not to other public bodies – even government

bodies such as local government or devolved government of the constituent

countries of the UK,

b) it does not cover “communication to the public” so that web-based publication

is not possible.

c) the “purpose” limitation does not fit well with the motive blindness of

freedom of information law. For example it is unclear whether the MOD could

release copies of UFO reports under this section.

VII. Proposed and prospective legislation

Datasets

When section 102 of the Protection of Freedoms Act 2012 is brought into force, the

FOIA will be amended so as to create a re-use regime for “datasets”.

A “dataset” is a “collection of information held in electronic form” where all or most

of the information in that collection complies with three conditions171.

First, it must have been obtained or recorded for the purpose of providing a public

authority (not necessarily the authority holding it) with information in connection

with the provision of a service by the authority or the carrying out of any other

function of the authority. For example the geo-location data held by Ofcom in

Information Commissioner v T-mobile.172

Second, it must be factual information which:

171 FOI s11(5) as inserted by s102 of the Protection of Freedoms Act 2012 172 n 84 above

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a) is not the product of analysis or interpretation other than calculation; and

b) is not an “official statistic” as defined in the Statistics and Registration Service

Act 2007;173 and

Third it must remain presented in a way that (except for the purpose of forming part

of the collection) has not been organised, adapted or otherwise materially altered

since it was obtained or recorded.

If these conditions apply, there will be a right to be provided with information under

FOI in an electronic form capable of re-use.174 The secretary of state will be able to

specify a licence under which a public authority must release datasets covering both

copyright and database right.175

For example, all public authorities holding datasets could be required to release them

under the OGL.

The use of a specified licence, rather than by implementing an exception to copyright,

appears to mean that the licence may only cover those rights belonging to the public

authority, so the right to re-use will not assist those wanting to use datasets

incorporating third-party rights.

Reforms to sections 47 and 48

The government has proposed amendments to sections 47(2), 47(3) and 48.176 These

will extend the copyright exceptions to include the making available to the public by

electronic transmission. This would permit, for example, the proactive publication on

the web sought by the MOD.

173 section 6(1) 174 FOI s11(1A) 175 FOI s11A(2), 11A(8) 176 Available from http://www.ipo.gov.uk/techreview-public-admin.pdf (last accessed 7 June 2013)

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VIII. Conclusion

The existing and proposed legislative solutions in the UK go some way to solving the

logical problems created by the interaction of copyright and freedom of information

but many lacunae remain.

A blanket withdrawal of copyright protection from the works created by public

bodies, as is currently the case for US federal copyright, or the routine licensing of

such work via licences like the open government licence, does not seem likely to be

adopted outside central government and in any case only solves problems associated

with public copyright.

Existing approaches for private copyright are very limited – in the UK sections 47 and

48 address a few of the problem issues, but even with proposed reforms they will still

limit the use of information subject to private copyright more than is necessary to

protect the interests of the copyright owners. The situation is worse in states, such as

France, where documents subject to private copyright are not even within the scope of

freedom of information law.

In the UK this difficulty is far more acute than in the US because the UK lacks a

general principle of fair use, which can be used by the courts to fashion common-

sense exceptions in specific situations not previously considered by legislators. I

suggest that an approach of that kind is what is needed rather than attempts to carve

out specific exceptions – as in section 47 – which do not take into account the effect

on the copyright owner.

Perhaps concepts from doctrines of fair dealing or fair use could be adapted to works

released under freedom of information. Provided freedom of information law properly

protects the public body’s interests that are not protectable as intellectual property

(such as the PAF or academic research), what is needed is a regime that permits use of

everything that is released that does not compete with the legitimate economic

interests of the copyright owner (public or private). For example by being a substitute

for the owner’s works, but is otherwise unrestricted.

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For example, an open textured law which permitted re-use provided it did not affect

the market for the released works (by analogy with 17 USC 107(4)) might allow the

law flexibly to set the balance right.

Reform is needed to avoid logical inconsistencies between copyright and freedom of

information. Further reform may be desirable better to meet the aims of freedom of

information. The treatment of public copyright will depend on economic policy

choices. Where copyright (public or private) is to be maintained in released works

carefully nuanced provisions are needed to permit justifiable use but prevent

exploitation which interferes with the copyright owner’s legitimate interests.

Proposed reform in the UK does not go far enough.

Freedom of Information and Copyright: How Do the Two Regimes Interact?

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