Access v Re-use - a membrane fast dissolving

Access v Re-use - a membrane fast dissolving

By admin On 24 September 2010 In Professional

The news that a UK local authority has refused to release information  to a website on the grounds that automatic publication on the applicant’s website amounts to re-use poses an interesting challenge to existing legislation and assumptions (see story in Daily Telegraph)

The website in question - Whatdotheyknow.com - aggregates the process of making FOI requests and publishes the results. It is acting very much in the spirit of both the last Government’s open data agenda and so much more in the spirit of the Coalition Government, whose commitment to transparency and accountability looks like surpassing its predecessor by some distance! 

The council in question – Brent – is however acting within the legal framework established by regulation. As defined under UK and European law “re-use means the use by a person of a document held by a public sector body for a purpose other than the initial purpose within that public sector body’s public task for which the document was produced" (The Re-use of Public Sector Information Regulations 2005 SI 1515). Accessing a document under Freedom of Information is one thing; exposing it via the internet as part of an aggregated service is “re-use”.

Now the website faces a choice. It can adopt a Wellingtonian stance of “Publish and be damned”. Or it can apply for a licence. In which case it will have to adhere to whichever terms and conditions which the public body chooses to apply (and Local Authorities in particular are notoriously inconsistent in how they apply these terms.) The public body may refuse to permit re-use, or it might permit it but with “charges for the cost of collection, production, reproduction and dissemination of documents” and also “a reasonable return on investment” (SI 1515, section 15). Furthermore, there is no obligation to decide upon this expeditiously.

None of which is  consistent with the spirit of open data and this Government’s agenda.

Here is where the law lags well behind the internet age – what constitutes “publishing” and “re-use” in the self disclosing age of the blog?  Any attempt to fall back on making distinctions between “commercial" re-use and "not for profit" re use will also fall apart  - what is “commercial” re-use in an age of privatised public utilities, Trading Funds and not for profit corporations? 

Government lawyers will continue to make elegant cases for distinguishing between Access and Re-use – just as they continue to uphold the distinctions between Crown Copyright and other forms of public sector intellectual copyright (another subject, another time!). 

There are some good reasons - a check on the mis-use of third party intellectual property within a public sector dataset, for example being a very good one.  But it is a thin legalistic membrane which distinguishes Access from Re-use - one in danger of fast dissolving under the pressures of technological advance and Government’s own policy momentum.

Public sector bodies are being driven to admit Re-use as readily as they have supported (however reluctantly) Access. The new and vastly simplified UK Government Licencing Framework, to be published later this week by The National Archives, is keenly awaited in this respect (STOP PRESS: now published )

It needs to (and is expected to) simplify vastly the process of licencing of public sector information to prevent this legalistic membrane which divides Access and Re-use from being rent asunder.

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3 Comments

  • admin

    30 October 2018 New government licencing
    This should be published on The National Archives website by tomorrow
  • admin

    30 October 2018 Information Re-use
    I think the European Directive on PSI expressly forbids making a distinction between commercial and non-commercial re-use. Once PSI has been made available to one user, then the PSI holder has to make it available to all comers.
  • admin

    30 October 2018 Brent Council
    I believe the Information Commissioner has intervened and Brent have relented!

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