Laurence asked whether the Hansards on the FOI Bill provided any
clarification on whether FOI disclosures were considered to be
"specifically authorised" by statute.
When the FOI Bill was introduced in the House of Commons, it included a
duty to disclose (under clause 1) and a discretion to disclose in the
public interest (under clause 13). It also included the following
clause 77:
"77. For the purposes of section 50 of the Copyright, Designs and
Patents Act 1988 (acts done under statutory authority) the
communication of any information in pursuance of a decision under
section 13 is taken to be specifically authorised by this Act".
The reason for this was that a disclosure made under the statutory duty
in clause 1 was considered to be specifically authorised for the
purpose of s 50 of the Copyright Act (and therefore not an infringement
of copyright) but a discretionary disclosure was not considered to be
specifically authorised by statute. Clause 77 removed this distinction
by providing specific statutory authorisation for the clause 13
disclosures.
At a later stage the discretionary public interest provisions in clause
13 were made mandatory. Clause 77 was then removed by a government
amendment. The Home Secretary, Jack Straw, said;
"The hon. Member...asked about amendment No. 74, which removes clause
77 on copyright. Section 50 of the Copyright, Designs and Patents Act
1988 provides that where the doing of a particular act is specifically
authorised by an Act of Parliament, the doing of that act does not
infringe copyright. Clause 77 was necessary because section 50 would
clearly not have applied to disclosures under clause 13, as such
disclosures would have arisen out of a discretion rather than a
statutory duty. However, as a result of the changes to clause 13, which
alter the discretion to a duty, disclosures under that clause will now
be made under a statutory authority, so clause 77 is no longer needed."
(Hansard, 4 Apr 2000: Column 933)
That is a fairly clear statement that the Government considered, and
Parliament was told, that disclosures made under section 1 of the FOI
Act would be specifically authorised by statute.
Maurice Frankel
Campaign for Freedom of Information
On 24 Jun 2004, at 09:31, Laurence Bebbington wrote:
> Home Office lawyers and their advice are far from infallible – as
> successive Home Secretaries have found out. As Home Secretary I’m
> sure Michael Howard received much advice and guidance from them yet he
> was probably challenged and overturned more times in the courts in
> interpreting and applying legislation than any other previous recent
> incumbent of the position.
>
> It would be much more persuasive to find the point positively
> discussed in Hansard or in Standing Committee debates on the FoI Bill.
> The courts are bound to take into account these sources in construing
> legislation.
>
> Laurence
>
> Laurence W. Bebbington
> Law Librarian/IS Copyright Officer
> Information Services
> The University of Nottingham
> University Park
> Nottingham
> NG7 2RD
>
>
>>>> [log in to unmask] 23/06/04 10:31:07 >>>
> Section 44 exempts information whose "disclosure" is prohibited by
> statute. Copyright law does not prevent disclosure - only reproduction
> - so does not invoke the s44 exemption.
>
> It was certainly the view of the Home Office FOI Unit, and government
> lawyers working on the FOI Bill at the time of its Parliamentary
> passage, that the FOI Act "specifically authorised" the release of a
> copy of a document within the meaning of section 50 of the Copyright,
> Designs and Patents Act and that the disclosure of a single copy under
> FOI was not an infringement of copyright (though its further
> reproduction by the person to whom it is disclosed might well be).
>
>
> Maurice Frankel
> Campaign for Freedom of Information
>
> On 22 Jun 2004, at 17:06, Bryan Thomas wrote:
>
>> I am getting thoroughly confused about this issue now! Sorry if I'm
>> going
>> over ground already covered...
>>
>> Section 44 of the FOI Act states that information is exempt if
>> providing it
>> is "prohibited by or under any enactment". On the face of it copying
>> a
>> copyrighted work and issuing it to the public is exactly one of the
>> things
>> that the Copyright and Patents Act prohibits.
>>
>> However, Section 50 of the Copyright and Patents Act states that doing
>> something "specifically authorised by an Act of Parliament...does not
>> infringe copyright".
>>
>> So we seem to be going round in circles. Does the FOI Act
>> "specifically
>> authorise" copying a copyrighted work or not? That seems to be the
>> crux of
>> the matter!
>>
>> It seems to me that copyright holders would feel legitimately
>> aggrieved if
>> public authorities have to provide copies of their work on demand.
>> Perhaps
>> more importantly though, could a third-party sue us for copying their
>> copyrighted work (without permission) and sending it out in response
>> to an
>> FOI request?
>>
>> Bryan Thomas
>> Records Management Co-ordinator
>> University of the Arts London
>>
>
>
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