Colleagues

I have for a long time been concerned about the implications of supplying a
copy of a copyright document in response to an FoI request. Colleagues will
be interested, and maybe concerned, to learn that government lawyers have
come round to my view that this could infringe. Official guidance will be
published on the issue in due course.

The FoI Act provides that information must be supplied to a person making a
request to an authority. The Act does not specify that a copy of the
document containing that information must be supplied. Instead, s11 says
that the person may express a preference for one or more of three means of
communication, the first of which is a copy of the information in permanent
form. However, the authority is obliged to comply only so far as is
reasonably practicable in all the circumstances.

The Copyright Designs and Patents Act provides that:
- the doing of any act which is specifically authorised by an Act of
Parliament does not infringe copyright (s50); and
- a literary, dramatic, musical or artistic work which has been communicated
to the Crown in the course of public business with the consent of the
copyright owner may be copied by the Crown and communicated to the public by
the Crown for the same purpose as that for which the work was originally
supplied or for a related purpose which could reasonably have been
anticipated by the copyright owner, without infringement of copyright (s48).

It is now the view of goverment lawyers in the Department for Constitutional
Affairs and DTI that the FoIA does not 'specifically authorise' the making
of a copy. All it authorises is the supply of information. If the making of
a copy in order to supply that information would infringe copyright, it is
not 'reasonably practicable' to supply the copy, and the information must be
supplied in some other form. The most likely form is as a summary or
paraphrase which does not use a substantial part of the original text's own
form of expression, but the Act also allows for access to the information by
allowing the person to inspect the original document. The latter is
presumably the only solution for information which is visual.

Archivists and librarians should note that so long as the conditions apply,
a copy may be provided in response to an FoI request under the library and
archive copying regulations. It was the limitation of copying under these
regulations to exclude commercial research that persuaded me that the s50
exception could not allow copying for FoI purposes, since that would negate
the attempt of the European Union to limit copying by libraries and archives
to non-commercial purposes. If a person making an FoI request seeks a copy,
therefore, the person should be sent the normal declaration form, unless it
is known that they are seeking the information for some purpose other than
non-commercial research or private study.

FoI authorities which are Crown bodies may be able to rely on the s48
exception. Any person supplying information to a Crown body nowadays should
be able to anticipate that it will become subject to FoI requests. It is
less likely that a Crown body could rely on this exception for material
supplied before FoI was in the offing, unless communication of it to the
public was part of the original purpose.

Those people who are sufficiently enlightened to have bought the latest
edition of my book should note that this advice replaces the advice given
reluctantly in the second bullet.of para 5.3.3.

Tim


----------------
Tim Padfield
Copyright Officer
Curator of Photographs
Secretary of the Lord Chancellor's Advisory Council on National Records and
Archives

The National Archives
Kew
Richmond
Surrey TW9 4DU

Tel +44 (0)20 8392 5381
Fax +44 (0)20 8392 5286
E-mail [log in to unmask]
Website http://www.nationalarchives.gov.uk



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