UK ICO Provides Guidance on FOI Law and Copyrights

9 August 2012

Copyrighted material may be disclosed pursuant to a Freedom of Information Act request, according to recent guidance from the United Kingdom’s Information commissioner’s Office.

The UK’s Copyright, Designs and Patents Act (CDPA) permits such disclosures, the ICO guidance says

“Providing information in response to a request made under FOIA constitutes an act specifically authorised under an Act of Parliament. Consequently disclosing information under FOIA will not infringe copyright.”

Public bodies should tell requesters when information provided is protected by copyright because it’s use may be restricted, the ICO said. “Copyright will still apply to the information once it has been disclosed under FOIA.” the ICO’s guidance said, and must be respected.

“So, although the disclosure under FOIA does not carry any restrictions, the restrictions imposed on the further use of that information by the CDPA still apply. It may not be apparent to recipients that the information is protected by copyright. Therefore when a public authority wishes to protect its own copyright, or the copyright is owned by a third party, it should advise the applicant that the information remains copyright protected,” the guidance states.

The ICO guidance also discusses the interplay of the commercial interests exemption with the disclosure of copyrighted information.  Database rights also are covered.

“The Commissioner will not accept the automatic publication of information in breach of copyright as grounds for refusing a request under FOIA,” it said. “However, if a public authority faced with the same situation was able to demonstrate that the disclosure would for example prejudice its commercial interest … the public authority would have grounds for withholding the information (subject of course to the public interest test).”

The guidance is available on this page under “Freedom of information – general “ and is titled: “Intellectual property rights and disclosures under the Freedom of Information Act.” Another recent guidance concerns the Environmental information Regulations.

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