ICO Gives Guidance on Disclosure of Copyright Material

On a day when Standard Chartered shares are falling, discord between the coalition parties increases  and the UK's Olympic successes become set to break records, this little bit of (slightly old) news caught this Kat's eye while getting her daily dose of current affairs. Guidance published earlier last month by the Information Commissioner's Office (ICO) seeks to explain why the existence of IP rights does not restrict the disclosure of a public authority's own information and third party information protected by IP rights under the Freedom of Information Act 2000 (FOIA): it 'sets out the Commissioner's approach to intellectual property rights and explains to public authorities that intellectual property rights do not restrict disclosures under FOIA'. As most readers will be aware, the ICO is an independent public body that upholds information rights 'in the public interest, promoting openness by public bodies and data privacy for individuals' in the UK, dealing with (among other things) the FOIA (but not in Scotland, where the Scottish Information Commissioner leads the way in all things Freedom of Information (Scotland) Act 2002).

The guidance limits itself to copyright and database rights which are most commonly attached to a request for information.  Broadly summarised, such rights are not infringed by a response to a freedom of information request as such responses are acts authorised by Parliament and the information itself retains protection, as provided for under both the Copyright Design and Patents Act 1988 (CDPA) and the Copyright and Rights in Databases Regulations 1997. Specifically, section 50 CDPA operates to prevent copyright acting as a statutory bar for the purposes of section 44 FOIA. Further, although disclosure does not carry out any restrictions, restrictions imposed on further use of information by the CDPA still applies: the person who receives the information under FOIA is still obliged to respect the rights of the copyright owner and if they fail to do so, the copyright owner can seek damages or an injunction for infringement. Very usefully, the guidance provides case law and Commissioner decision notice summaries as examples of the applicable principles. At page 10 the Court of Appeal's judgment in The Office of Communications v Information Commissioner [2009] EWCA Civ 90 is provided as an example of the application of the public interest test under the FOIA. At page 9 a Commissioner's decision notice finding that the Ministry of Justice would have no problem policing its IP rights exemplifies circumstances where an IP rights holder can take steps to eliminate potential commercial prejudice arising from disclosure.

The guidance also sets out the most relevant fair dealing provisions which allow information to be used without infringing copyright set out in Chapter III of the CDPA, to which the ICO acknowledges that:
 'at first it may appear that there is a conflict between copyright and the principle that disclosures under FOIA are free from conditions and are to the world at large. But it is important to recognise that no restrictions are placed on the use of the information in order to facilitate its disclosure under FOIA. The copyright restrictions already subsist in the information at the time of the request...the fair dealing provisions mean that the information disclosed under FOIA can feed any public debate. Furthermore, if a public authority releases information to one person, then anyone else will be able to obtain that information under FOIA. So, although copyright may place some restriction on the dissemination of the information by the original recipient, a disclosure under FOIA should still be regarded as being to the world at large' 
 ( at [20]-[21])
Public authorities are advised to inform applicants and recipients of copyright-protected information that a release of information does not involve an implied licence to exploit the information commercially: the information remains protected and the recipient of such information is still bound by an obligation to respect any IP rights that already subsist it in. As such, the ICO recommends that public authorities consider using the National Archive's Open Governmental License (OGL, not oggle) that allows the use and re-use of information available under the license freely with a few conditions, i.e. personal data and information subject to other IP rights, including patents, trademarks and design rights are exempt.

Importantly, it is not a reason to refuse a request for information if disclosure to websites results in the automatic publication of copyright material. However, if a public authority was able to demonstrate that such disclosure would prejudice its commercial interest and engage section 43 FOIA, the public authority would, subject to the public interest test, have grounds for withholding the information.
'The issue is not whether a disclosure to a particular address would engage an exemption, but whether a disclosure to anyone, at any address, would engage the exemption. The application of the exemption does not depend on the applicant or their address'
( at [50]).

This cat's off to get some guidance
The guidance does not yet contain information on the Protection of Freedoms Act (PFA) which was passed in May this year. Section 103 of that Act contains amendments to sections 11 and 19 FOIA and adds rights and obligations to datasets. 'For the first time these provisions add rights of re-use under FOIA', with the provisions expected to be in force next year. Updated guidance will follow the changes.

Read all the guidance in PDF format here
Check out the Olympics here
And out-dated cat politics here
ICO Gives Guidance on Disclosure of Copyright Material ICO Gives Guidance on Disclosure of Copyright Material Reviewed by Kate Manning on Tuesday, August 07, 2012 Rating: 5


  1. CDPA 1988 Section 50(1) - Acts done under statutory authority

    "(1) Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe copyright".

    Where, pray tell, does the Freedom of Information Act "specifically authorise" the copying of third party material? Section 11(4) states "a public authority may comply with a request by communicating information by any means which are reasonable in the circumstances". But is it this specific enough? It is "reasonable" for the Government to infringe copyright rather than grant either, per section 11(1)(b) "the provision to the applicant of a reasonable opportunity to inspect a record containing the information", or per section 11(1)(c) "the provision to the applicant of a digest or summary of the information in permanent form or in another form acceptable to the applicant"?

    By the way, there are some interesting changes proposed to be made in this area. See paragraph 7.198 of the IPO's "Hargreaves" consultation paper at http://www.ipo.gov.uk/pro-policy/consult/consult-closed/consult-closed-2011/consult-2011-copyright.htm .

  2. Although not specifically authorised, public authorities are required to follow a code of practice issued by the Secretary of State, which 'must, in particular, include provision relating to...(c) consultation with persons to whom the information requested relates or persons whose interests are likely to be affected by the disclosure of information...' (s. 45(2), FOIA). So perhaps this would have a bearing on how the information is to be delivered if disclosable?

    However, the summary of the Commissioner's decision notice FS502766715 on pages 16-17 of the guidance seems to prejudice those requesting information AND third parties: the automatic publication of information in breach of copyright as grounds for refusing a request was rejected. Further, there is no mechanism for third parties to challenge disclosure. This goes against [7.205] of the IPO consultation, which states that '...current exceptions do not permit government departments to make 3rd party documents...available online...'.

    Perhaps I should have included the caveat also contained in the guidance - 'This guidance sets out the Commissioner's approach to intellectual property rights'...


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