Freedom of information in cyberspace: What now for copyright?

Abstract

The UK Government's current transparency agenda comes at a time when freedom of information has come into conflict with copyright law. In particular, copyright has been asserted, wrongly in the regulator's view, by public authorities as a reason to prevent release under freedom of information legislation due to the likelihood of any response being published online. This article examines the potential conflict between the right of access to public information and the rights of any copyright holder to control its reuse in cyberspace. It discusses some recent cases, and considers how these could impact copyright law and current licensing norms. The changes proposed by the Protection of Freedoms Bill are considered and three potential routes to resolution proposed for debate, with particular reference to the wider debate about the fitness-for-purpose of copyright in an online and technologically developed world and the potential impact of Article 10. The current consultative environment may represent an opportunity to address freedom of information and copyright tensions, although perhaps only case law will resolve them once and for all.

Keywords:

• freedom of information
• copyright infringement
• online publication
• public sector information

Notes

2000, ch. 36. The Freedom of Information (Scotland) Act 2002 (FOISA) contains similar, but not identical, provisions for public authorities in Scotland.

31 May 2010, http://www.number10.gov.uk/news/letter-to-government-departments-on-opening-up-data/ (accessed 18 November 2011).

2004, No. 3391, implementing Council Directive 2003/4/EC on public access to environmental information.

2005, No. 1515, implementing Directive 2003/98/EC on the re-use of public sector information.

http://www.publications.parliament.uk/pa/bills/lbill/2010-2012/0099/lbill_2010-20120099_en_1.htm (accessed 18 November 2011). The Protection of Freedoms Act received Royal Assent on 1 May 2012, the relevant section being s102 ‘Release and publication of datasets held by public authorities’.

Digital opportunity, A review of intellectual property and growth by Professor Ian Hargreaves, May 2011 http://www.ipo.gov.uk/ipreview-finalreport.pdf (accessed 18 November 2011).

Your right to know, the Government's proposals for a Freedom of Information Act (Cm 3818), The Stationery Office, December 1997, 5 http://www.official-documents.gov.uk/document/cm38/3818/3818.pdf (accessed 18 November 2011).

http://www.whatdotheyknow.com/ (a website that facilitates FOIA requests and publishes online the preceding correspondence and ultimate result).

Information Commissioner's Office e-newsletter, July 2011, http://www.ico.gov.uk/news/enewsletter/previous_enewsletters/English/201107.aspx (accessed 18 November 2011).

1988 (c 48).

Cornish, W., Llewelyn, D., and Aplin, T. 2010. Intellectual property: Patents, copyright, trade marks and allied rights, 7th ed., 39. London: Sweet & Maxwell.

FOIA, Section 3(2).

Meunier v Information Commissioner, EA2006/0059, 5 June 2007, 28 http://www.informationtribunal.gov.uk/DBFiles/Decision/i144/Meunier.pdf (accessed 18 November 2011).

Advisory Panel on Crown Copyright, Aligning the FOI and PSI initiatives in the UK (version 2, 12 February 2004) para 12.

Clause 100(2)(c). A dataset is defined as a collection of information held in electronic form where all or most of the information in the collection (a) has been obtained or recorded for the purpose of providing a public authority with information in connection with the provision of a service by the authority or the carrying out of any other function of the authority, (b) is factual information which – (i) is not the product of analysis or interpretation other than calculation [so raw data], and (ii) is not an official statistic, and (c) remains 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 [so not value-added data].

Decision Notice FER0280033, 23 June 2011, 21.

EA/2006/0078, 24. (The question of whether exceptions under the EIRs must be considered separately or whether they could be combined and then weighed against the public interest was referred by the Supreme Court to the ECJ which ruled that a public authority may take into account a number of grounds cumulatively. The case may now be referred back to the Information Tribunal, which had taken the alternative approach. Case C-71/10, 28 July 2011.)

See the data at http://www.uea.ac.uk/mac/comm/media/press/2011/July/crutem3 (accessed 18 November 2011).

See Note 16, 25.

EA/2009/0034, 18.

http://www.whatdotheyknow.com/request/online_petitions_documents_from (accessed 18 November 2011).

Decision Notice FS50276715, 7 June 2010, 5–7.

Part of the UK Government Licensing Framework for licensing the re-use of public sector information, which also includes the Open Government Licence http://www.nationalarchives.gov.uk/information-management/uk-gov-licensing-framework.htm (accessed 18 November 2011).

Decision Notice, FS50296350, 2 December 2010, 9 http://www.ico.gov.uk/tools_and_resources/decision_notices/decision_notice_list.aspx?m=12&y=2010 (accessed 18 November 2011).

For instance (i) the wording ‘Please note that the information provided may be subject to copyright and you may require further permission from the Council to re-use it’ regularly added to release of information by Brent Borough Council to requestors utilising whatdotheyknow.com , examples of which can be found at http://www.whatdotheyknow.com/request/supply_teacher_expenditure_2#incoming-200248 (supply teacher expenditure, accessed 18 November 2011), http://www.whatdotheyknow.com/request/79202/response/199211/attach/html/3/20110804%20L%20Mills%20Fortnightly%20collection.docx.html (questions regarding fortnightly refuse collection, last accessed 18 November 2011); (ii) the wording ‘Please note that the publication of this response without the express permission of the University of Central Lancashire may give rise to an action for copyright infringement’ used by the University of Central Lancashire on 27 May 2010 in response to a request for the total fees paid to 11 Kings Bench Walk for advice and representation provided to the University in the Tribunal case EA/2009/0034 to be found at http://www.whatdotheyknow.com/request/28376/response/88911/attach/html/3/Response%20to%20M%20Davies%2027.05.10.pdf.html (accessed 18 November 2011).

See University of Southampton's response in 2009 to a request for financial information about printer credits at http://www.whatdotheyknow.com/request/14612/response/43084/attach/2/4059.pdf (a click-to-agree intellectual property rights notice which also stated that the response was intended only for the specific requestor and required the requestor to agree to the terms of the intellectual property rights notice). It appears from recent requests on whatdotheyknow.com that the use of this notice may have ceased.

During the report stage of the Protection of Freedoms Bill, a new clause was moved making information obtained in the course of, or derived from, a programme of research exempt information for the purposes of the FOIA, subject to a number of provisos.

Impact of FOI on central government, UCL Constitution Unit end of award report to ESRC, RES 062 23 0164, Professor Robert Hazell and Dr Ben Worthy, September 2009, http://www.ucl.ac.uk/constitution-unit/research/foi/ESRC-end-of-award-report (accessed 18 November 2011).

Musical Fidelity Ltd v Vickers (t/a Vickers) [2002] EWCA Civ 1989 [2003] F.S.R. 50 at 907.

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Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

Title 17, U.S.C. s105 at http://www.copyright.gov/title17/92chap1.html#105 (accessed 18 November 2011).

Vollmer, T. 2011. State of play: Public sector information in the United States, European Public Sector Information Platform, Topic Report No. 25, 25 February 2011, 6.

Abruzzi, Bradley F. 2009-2010. Copyright, free expression, and the enforceability of personal use-only and other use-restrictive online terms of use. Santa Clara Computer & High Technology Law Journal 26, no. 85: 140.

Ashdown v Telegraph Group [2002] Ch. 149 CA, 165-166.

Tarsasag a Szabadsagjogokert v Hungary [2009] ECHR 618, para 35.

Kennedy v Information Commissioner and Charity Commission [2011] EWCA Civ 367, 61. Since writing, the Supreme Court in Sugar stated that Article 10 created no general right to freedom of information (Sugar v BBC [2012] UKSC 4)

Griffiths, J. 2002. Copyright law after Ashdown – time to deal fairly with the public. IPQ 257.

Making open data real: A public consultation, 4 August 2011, The Cabinet Office, http://www.cabinetoffice.gov.uk/resource-library/making-open-data-real-public-consultation (accessed 18 November 2011). A summary of the responses can be found at http://www.cabinetoffice.gov.uk/resource-library/making-open-data-real-consultation-responses