UK: Freedom of Information - Department of Constitutional Affairs Speaks on the Issue of Copyright

This article provides an update on the issue of whether a public authority is permitted to make a copy of documents, otherwise protected by copyright, when responding to a request for information under the Freedom of Information Act 2000 ("FOIA"), whose right of access to information held by public authorities comes into force in January 2005.

This issue was discussed briefly in an article earlier this year.(1) The reason for that discussion was the then recent debate in public circles to the effect that a public authority might not, when responding to an information request, be permitted to make a copy of documents supplied to it by a third party if those documents were subject to copyright protection. Specifically, the article noted that, in a forum posting of 24 June 2004, a Copyright Officer of the Secretary of the Lord Chancellor's Advisory Council on National Records and Archives, wrote that government lawyers had concluded that the supply of a copy of a copyright document in response to a FOIA request could infringe copyright. It had been reported that the view of government lawyers in the Department for Constitutional Affairs ("DCA") and DTI was that FOIA did not "specifically authorise" such copying in terms of section 50(1) of the Copyright, Designs and Patents Act 1988, and that "official guidance [would] be published on the issue in due course". The article contended that arguably FOIA does specifically authorise the copying of copyright documents for the purpose of complying with information requests, that this was likely to have been Parliament's intention and that, if that were not the case, public authorities might have difficulty in complying with the Act.

The DCA has now published on its website a raft of guidance on FOIA's procedures and exemptions.(2) A statement in the first guidance document, entitled "Procedural Guidance", suggests that the DCA has reconsidered the question of copyright and now considers that a public authority will not be breaching copyright if it makes a copy of an otherwise copyright protected document for the purpose of complying with a FOIA request. Among other things, the Guidance states:

This is helpful guidance which it is hoped will facilitate public authorities' compliance with information requests under FOIA and relax the minds of those public authorities who were concerned that supplying copies of documents might put them in breach of copyright.

(1) R D Best "United Kingdom: Freedom of Information – Will Public Authorities Be Able to Copy Copyright Documents When Responding to Requests?", 7 July 2004, www.mondaq.com.

(2) See http://www.dca.gov.uk/foi/guidance/index.htm

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