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Tim Padfield (Copyright Officer at The National Archives) has asked me to
send this follow-up message on FOI and copyright.
> I understand that Laurence Bebbington copied to this list a posting which
> I had made to the copyright list. I had hoped that that message was clear.
>
>
> The view of lawyers at DTI and DCA (which has taken over from the Home
> Office responsibility for FoI policy) is now that s50 of the Copyright
> Designs and Patents Act covers the supply of information but does not
> cover the supply of a copy under the FoIA. This is because the FOIA
> 'specifically authorises' only the supply of information. The supply of a
> copy is one means of supplying the information, but it should be used only
> if to do so is 'reasonably practicable' in all the circumstances. The
> supply of a copy is thus not 'specifically authorised' by the FoIA, and
> such supply would not be 'reasonably practicable' if to do so would be an
> infringement of copyright.
>
> This has long been my view, for what that is worth. I appreciate that this
> is awkward where the information is visual, but that is why the Act allows
> for consultation. It is moreover a problem faced for a long time by
> archivists ands librarians, who cannot legitimately supply copies of
> copyright artistic works without permission.
>
> A correspondent has, as I understand it, raised the possibility of s47(1)
> of the CDPA applying instead. That is an attractive solution, except for
> the very restrictive terms of that section. It applies solely to a
> literary work and solely to factual information within that work. You
> would be infringing if you copied non-factual information. I should not
> like to have to distinguish between factual and non-factual information in
> order to supply a copy. The rest of s47 is no better for practical
> purposes.
>
> All alternative solutions moreover come up against the problem of EC law.
> As we all know, a recent directive has made it unlawful, under most
> circumstances, for a library or archive to supply a copy of an unpublished
> copyright work for a commercial purpose. Almost all public libraries and
> archives will be authorities under the FoIA and will thus have to respond
> to FoI applications. They are not allowed to take account of the purpose
> of the request. If they could supply under s50 of the CDPA they could
> therefore supply for a commercial purpose. This would put the UK in clear
> contravention of the intention of the European Parliament and Council and,
> it seems to me, in breach of EC law. In this context it is interesting to
> note that the recent Public Sector Information directive requires public
> bodies to allow commercial exploitation of their material, but not of
> third-party copyright material.
>
> As Laurence has said, the best thing to do now is wait for the official
> guidance and act accordingly.
>
> Tim Padfield
>
>
> 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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