FOI & Copyright – A guest post

FOI & Copyright: What’s the Big Deal?

There’s been a lot of confusion recently over FOI as it relates to copyright law. Decision notices such as the one served on the House of Commons have only managed to confuse the issue further, with copyright law now being viewed by many as merely another excuse to withhold access to information. However, the Copyright, Designs and Patents Act 1988 (CDPA) is a valid and relevant piece of legislation which applies to a sweeping majority of work created in the UK. As information is increasingly delivered via digital means, copyright issues must not be dismissed as irrelevant or insignificant in light of an FOI request.

Copyright 101

When it comes to copyright, it’s important to get the facts straight:

1. Copyright is an automatic intellectual property right
2. Copyright protects expressions of ideas which are recorded and (for the most part) original (this includes databases)
3. Copyright does not protect ideas themselves, or facts, numbers or names (trademarks may apply to names and brands)
4. The exclusive rights belonging to a copyright owner include rights in copying the work, issuing and communicating it to the public, lending it, showing it and making an adaptation of it
5. Work created in the course of employment is owned by the employer

Copyright applies regardless of whether a work counts as public information or not. Unlike in the USA, where work prepared by an employee of the US government as part of their official duties is not protected by domestic copyright law, work created by employees of the UK government attracts Crown Copyright protection. Crown Copyright lasts for 125 years from the year in which the work was made, unless it was published commercially within the first 75 years, in which case copyright lasts for 50 years from the date of commercial publication.

Access vs Re-use

The crux of the issue is the distinction between access to information and subsequent re-use of that information (the National Archives has an excellent document on this). The CDPA states in s.50(1) that:

“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.”

The question arises: what exactly is “specifically authorised” by the FOI Act?  Firstly, the Act is for the disclosure of information to one person, “the applicant”. Section 11(1) details the ways in which the applicant can express a preference for how the information is communicated to him or her: a) a copy of the information in permanent form or another form acceptable to the applicant; b) the provision of a reasonable opportunity for the applicant to inspect a record containing the information; and c) the provision of a digest or summary. The key here is that the making and provision of a single copy of the information to an individual applicant does not infringe copyright. In essence, if the document contained graphs, tables, photographs, diagrams, and so on created by others outside of the public authority (also known as third party content/copyright), the authority would be able to supply a copy of that document in its entirety to the applicant without having to seek permission to do so from the various copyright holders represented.

However, the FOI Act also states that in deciding whether the making and supply of a copy is ‘reasonably practicable’ the authority may ‘have regard to all the circumstances’. If one of the circumstances is that the information being supplied will immediately be available for many people to download, view and copy on a website (in other words: be published), this does not fall under what is “specifically authorised” by the FOI Act and therefore section 50(1) of the CDPA no longer applies.

In the HoC Decision Notice, the Information Commissioner declared the What Do They Know? website’s email address valid for the purposes of the FOI Act, and therefore under this Act the HoC was required to release the information. However, the copyright issue arose not with the disclosure of the information itself, but rather with the issue of instant publication to the website of that information. This issue was deferred by the ICO (and rightly so) as being outside of their scope. The only problem with this is that it would really require the judgement of a court to state that the act of instant publication of information disclosed to an applicant under FOI is not “specifically authorised” by the Act and therefore section 50(1) of the CDPA cannot be applied, meaning that such use of the information infringes copyright.