To bowdlerise Viz Comic, chuff me, it’s all kicking off in Buxton. The fine folk of High Peak Borough Council had a little local difficulty last week after getting into a tussle with a redoubtable local concerned about how much the Council was paying to maintain closed office buildings. Having disclosed the costs under FOI, the applicant complained that High Peak were refusing to allow him to share the information with anyone else, including the press. With commendable restraint, John Phillips, the editor of the Buxton Advertiser, summarised the situation as follows:
“It’s like a gagging order, and smacks of Orwell’s 1984”
As one of the commentators on Hold the Front Page pointed out, organisations often have a standard boilerplate attached to FOI responses making grand claims about re-use of information, and it seems likely that this is at the root of this problem. A quick trip to the foaming pages of What Do They Know seems to confirm this, as High Peak’s Re-Use warning is bracing:
“Under the Re-use of Public Sector Information Regulations 2005, if you wish to re-use any information that you have been provided with by the Council for any purpose that is not your own individual use, you require the written consent of the Council. In order to make a request you should write to the Council for permission to use the information and provide your name and address and state the purpose for which the document is to be re-used.”
There is a slight problem with the first sentence. FOI applicants to High Peak, and any other authority using a similarly stern warning, do not need written consent to re-use ‘any information’. The Re-Use Regulations cannot be applied to “any” information because much information disclosed under FOI and EIR isn’t subject to copyright. Even if you refuse me consent to re-use your data, unless you own the copyright, there’s nothing formal to prevent me publishing it, selling it, or having it tattooed on my forehead. I could, for example, re-use data disclosed by High Peak in November 2011 in response to an FOI request about stray dogs by telling you that 13 strays impounded in 2010 were reclaimed by their owners. I don’t have High Peak’s permission to do this, but I doubt they’re rolling out their copyright lawyers as we speak because you can’t copyright a number of stray dogs. 13, 13, 13. The world still turns.
It’s completely unfair to pick on High Peak in this way because they’re not alone. The Re-Use Regs emerged in the shadow of FOI and EIR in 2005, and they didn’t make a lot of sense to a lot of people because they simply permit rather than require them to introduce a re-use regime. Tell most people in the public sector that something is optional and they will legitimately ignore it because there will always be something else that they do have to do. Moreover, public authorities are legitimately concerned about the way that FOI information is used to stitch them up. To quote one example, every time a newspaper reports how much a council spends on alcohol, remember that councils own leisure and cultural facilities and host weddings, so they sell the alcohol and get their money back. They’re probably not having parties at your expense. And finally, because some of the information they disclose actually will be copyright protected, they don’t want to lose whatever rights they do have. Hence the stentorian warnings – but the organisations that do this are using an unhelpful, blanket approach because they don’t know enough about the issue.
Kirklees Council advises web users that “Most council information is protected by copyright”, while Tower Hamlets claim that “Most of the information that we provide in response to Freedom of Information Act 2000 requests will be subject to copyright protection”. NHS Western Cheshire declares that apart from private research, “Any other re-use, for example commercial publication, would require the permission of the copyright holder (i.e. the PCT). And so, you must ensure that you gain our permission before reproducing any information.” Does that include me quoting the copyright warning on my blog so that I can say that I think it’s nonsense? Given that much of the data that fuels a public sector organisation is factual, I don’t believe that these statements are correct.
A glance at the Intellectual Property Office’s website shows that to be covered by copyright, content has to be the result of “independent creative effort”. Any document copied from something else won’t be protected, so every person who has ever begun a project with the phrase ‘let’s not reinvent the wheel’ is on a hiding to copyright nothing. Leave aside the legitimate argument that public sector data should be freely available because it has already been created using personal and business taxpayers’ money. Any request for statistics, facts, or other raw information is more or less outside copyright to begin with, so re-use and awful warnings are irrelevant. Much of the information that could be subject to copyright – policies, documents, correspondence – lacks the inherent value that would justify taking action to defend copyright, so the organisation wouldn’t waste public money doing so.
And most important of all, although the ‘fair dealing’ provisions of copyright law are by no means simple, they do give journalists and others the right to comment and criticise, which is where we came in. Even if High Peak could have claimed copyright on the costs of running their empty properties (which I believe they could not), copyright and re-use would not prevent the applicant from passing the data to the local press. The Council may not even have intended this impression to be created, but nobody forced them – or anyone else – to use such a daft and excessive copyright warning. It helps no-one to create a false impression of how far copyright and re-use actually go – the confusion in applicants’ minds and resentment of perceived but imaginary copyright slights just muddies already murky waters.
I have two suggestions. The first is that when an FOI or EIR disclosure is made, the person sending out the response makes a balanced and informed decision about whether a claim of copyright could be made on the disclosed information. If this seems like too much work, I have an alternative re-use notice which all readers of this blog are more than welcome to use, copyright free.
There is a possibility that if the information we are disclosing to you was the subject of independent creative effort, or a huge amount of work, it wasn’t based on someone else’s work or isn’t, in fact, someone else’s work in the first place, we own the copyright on it. We don’t have the time or resources to track what you do with our information – if it is ours – and we haven’t actually looked at the information here to decide whether any of this is the case, so we’re attaching this notice to instil in you a vague sense of uncertainty about what you can do with it. We definitely don’t want you to make any money out of it but we probably won’t notice.