JILT 1996 (2) - Sol Picciotto
Towards Open Access to British Official Documents
Professor Sol Picciotto Contents
1. Introduction (i) | (ii) 2. The Present Legal Framework 3. Administrative Arrangements for Official Publications (i) | (ii) 3.1 Free Reproduction Without Prior Request (i) | (ii)
3.2 Photocopying 3.3 Licensing on Request of Free Reproduction 3.4 Licensing on Easy Terms 3.5 General Licensing Policy 4. Towards Open Access and Public Domain This is a refereed article. Date of Publication: 7 May 1996 Links Updated: 2 April 1997 Citation:Picciotto, S (1996) 'Towards Open Access to British Official Documents', 1996 (2) The Journal of Information Law and Technology (JILT), <http://elj.warwick.ac.uk/elj/jilt/leginfo/2picciot/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_2/picciotto/> The British government has been slow to recognise the implications and potential of the Internet for facilitating access to official government information. It still remains true that The United Kingdom is not a country in which ideas of free access to, and free use of, government information flourish with any vigour (Cornish, 1989, p. 367). The situation is greatly exacerbated by the tangled thicket of legal and bureaucratic rules, based on copyright, which control the reproduction of government documents of all kinds. The time is now overdue for Parliament to take action and introduce legislation based on the principle of public domain, which is a significant factor in the much greater openness of access to government information evident in the USA. The Internet now offers an excellent opportunity to create rapid open access at low cost for all official documents and government information. Reform and clarification of the law is necessary to bring this about. It is also necessitated by the government's move to privatise the commercial aspects of HMSO, which includes some as yet unspecified rights and duties in relation to official publication. A recent Ministerial statement, and related changes to official administrative notices, have made some modifications to existing arrangements while maintaining the broad lines of present policy. Yet the policy is facing increasing problems created for it both by the fragmentation of government and the information explosion. The statement made on 9th February 1996 by Roger Freeman, the Cabinet Office Minister for Public Service, essentially clarified two points. First, that although Her Majesty's Stationery Office (HMSO) is being privatised in the summer of 1996, the administration of Crown copyright will not be transferred to the privatised entity. This would be retained in a 'residual body', which could also, with the agreement of Parliament, administer Parliamentary copyright. Secondly, he extended to non-print media the existing open licence allowing free re-publication of legislation (Acts of Parliament and Statutory Instruments). At about the same time, modified versions were issued of some of the circulars and letters governing administration of Crown copyright. As a concession to open government, the texts were quickly made available on the Internet (< http://www.hmso.gov.uk/copy.htm >). The policy of the government, restated in the Minister's recent formulation, is to administer Crown copyright with a view to making official information as widely and readily available as possible, taking into account the need to protect the interests of the taxpayer. This policy is fundamentally contradictory, and therefore flawed. What is intended by 'protecting the interests of the taxpayer' is, apparently, to make use of the property rights, which means treating them as normal commercial property, in order to ensure as much return to the public purse as is compatible with ensuring adequate dissemination of official material. The flaws in the policy make it very difficult to administer, especially as government itself has become fragmented, and each department has been under pressure to cut its costs or generate revenue, including doing so by exploiting its "rights" over information.[1]
The policy is justified by the short-sighted Treasury view of the interests of the taxpayer. Yet, most taxpayers would be appalled by the notion that information compiled for the purposes of government should be treated as the property of government departments, to be sold back to the public at a profit. HMSO argue that they are only seeking a return for the taxpayer from commercial profits, and reject the view that if they forego royalties the savings would be passed on. The taxpayer's interests are surely best served by immediate publication by the easiest means possible of as much government information as possible. Electronic publishing now makes this feasible at minimal marginal cost. Word-processed documents can now be very easily formatted for display on a Web page, and released immediately to the world. This seems only partially understood in government circles. Adoption of a policy of open access should be coupled with the legal recognition that official documents are in the public domain. This would create the incentive for publishers to add value by improving delivery and packaging. Now the initial euphoria about the prospects for total access to all information via the Net is over, it has become clear that there is an important role for commercial intermediaries who can facilitate navigation, or repackage material for more convenient access or retrieval. Restrictive, conflicting, and confusing copyright rules can only impede this commercial and competitive process.[2] Copyright of its nature is an exclusive right, which reduces competition. Its justification is said to be to provide an incentive and reward to authors and artists for their skill and creativity. This is hardly relevant to official documents, and its existence reinforces the tendency for official information to be treated as a scarce and expensive commodity. The privatisation of HMSO also makes it necessary to reassert the nature of the public interest by statute, rather than leave it to private and secretive negotiations between government departments and the owners of the new entity. If publication of official documents remains a property right, there will be inevitable pressures to widen exclusivity, in order to increase the value of the assets and ensure the 'success' of the privatisation. At the risk of adding further confusion, an attempt to recapitulate the essence of the present legal and administrative arrangements might be in order here.
2. THE PRESENT LEGAL FRAMEWORK 2.1 Crown and Parliamentary Copyright The 1988 Copyright, Designs and Patents Act (CDPA) made a significant change by limiting Crown copyright to any work made ' by Her Majesty or by an officer or servant of the Crown in the course of his [sic] duties' (s.163). In contrast, the previous 1956 legislation had a much broader formulation, covering works either made or published 'by or under the direction or control of Her Majesty or a government department'.[3] The narrower formulation of the 1988 Act necessitated the creation of a separate Parliamentary copyright, which covers works made by or under the direction or control of either House of Parliament, but excluding commissioned works (s.165). Thus, Bills, reports of parliamentary proceedings, and some other parliamentary documents are Parliamentary copyright, but statutes are Crown copyright. The new formulation also means that works commissioned by the government but produced by a contractor rather than an employee are not Crown copyright, although the Crown may acquire the rights. Works produced as part of the process of government prior to 1988 would normally be Crown copyright, whoever the author was, if first published by the government. This is no longer the case. Whether a report or other document produced as part of the process of government is Crown copyright now depends on the employment status of the author, unless the department commissioning the work obtains a transfer of copyright.[4]
2.2 Court Judgments and Reports There remains a fog of ambiguity and disagreement as to copyright in court judgments. They may be Crown copyright, if judges are 'servants or officers of the Crown' Cornish says with some diffidence that While no judge would hold himself to be a servant of the Crown, he or she is appointed by royal authority and is therefore probably an officer of the Crown (Cornish, 1989, p. 367). Not surprisingly, the Treasury Solicitor agrees with this view. Although no action has yet been taken to enforce it, HMSO states that it intends to issue a policy statement soon. (Laddie, Prescott and Vitoria, 1995 ) hold the contrary view, and point out that in all the debates leading to the passage of the 1988 Act no mention was made that it might have this effect (para 22.39). They point out that in legislation such as the Supreme Court Act the term court 'officers' is used only for various clerks, masters, registrars etc., and not for judges. They conclude that "while it is plain that a judge holds an 'office', this does not thereby make him an 'officer of the Crown' " (para. 22.38). They ingeniously argue that, since judges have never asserted a copyright, and often deliver their judgments in open court where they may be taken down by reporters, judges have either abandoned copyright by dedication to the public, or are estopped from denying the existence of an irrevocable licence to publish (para 22.40). This argument effectively puts the judgments themselves in the public domain.
2.2 Court Judgments and Reports (ii) The problem is compounded by the various ways in which the production of a judgment, and of a report of the judgment, interact with the principles of copyright. There may be a separate copyright in a report of the judgment, if sufficient skill or judgment have been expended in producing it. Shorthand writers, who traditionally sat in open court, relied on the famous case of Walter v. Lane [1900] AC 539, which decided that a newspaper had its own copyright in a report of a speech made in public. However, under today's conditions it has been argued that there is no separate copyright in the report as such. The aim of law reports today is to render the approved words of the judge, who often writes out the judgment in full or in note form, and generally is given the opportunity to correct the reporter's draft (Picciotto and Ruete, 1985). What law reports offer now is the actual text of the judge's words, as approved by her or him, rather than an account which relies on the skill of an individual reporter. An exception to this is abbreviated or edited reports such as those in daily newspapers, which are written in reported speech and are really a Note of the judgment. In contrast, the full versions of judgments aim at accuracy, so the modern court reporter must be regarded as a 'mere amanuensis'.[5] There is a separate copyright in the headnote and other preliminary matter, but this is severable, and it is not clear that publishers of law reports can thereby claim copyright in their presentation of a case report as a whole, including the judgment itself.[6] However, (Laddie et al,1995). leave open the possibility that the law reporter may have used 'sufficient skill and labour' to create an independent copyright in a report of the judgment (para. 22.40).[7]
2.2 Court Judgments and Reports (iii) Clearly, the question is not purely legal, but also an economic one. Do those who invest in the production of reports need a property right to enable them to obtain a sufficient return on that investment? The incentive does not seem necessary. Under the present law perhaps the best result is achieved by the argument that copyright belongs to the judges but has been dedicated to the public.[8] This would guarantee the integrity of the text (in which the judge would have moral rights) while creating incentives for publishers to add value through their their delivery systems. Since they have been publishing reports for many years without any objection being made, this would be hard to controvert.[9] The somewhat arcane legal debates about copyright in court judgments tend to obscure the more fundamental issue of the function of Crown copyright. Judges are clearly public servants, they are certainly paid for out of the public purse and fulfil a state function, so in a basic sense their judgments should belong to the public. Legal specialists on copyright tend to take a narrow view which excludes judges from the ambit of the term 'officer or servant of the Crown', since they view this term as indicating a normal employment relationship. They consider that it is because an employer can control the work done that s/he also owns the product, and that this does not apply to the judge, who is independent and not controlled by either the government or the monarch. However, the corollary of this would be that judges personally own rights in their judgments, which seems hard to maintain. Could they, for example, refuse to allow a judgment to be published? This conclusion is avoided by the argument based on abandonment and dedication to the public. It may be wise, at present, to avoid the conclusion that judgments are Crown copyright, since the current policies towards these rights do treat them more as assets to be exploited rather than information to which the public has a right. Given the long-standing practice of allowing publication, it would seem hard for the Crown now to deny that there has been at least an implicit licence. It is possible that HMSO and the Treasury may seek to limit this to hard-copy publishing, and try to assert some control over electronic rights. However, such a move would probably be resisted by the publishers, who might have the judges on their side. It might be wiser to accept that, whatever the formal status of judges, the texts of their judgments are by long-standing practice and as a matter of policy treated as being in the public domain. This still leaves questions about supervision to ensure integrity and authenticity, which would be better answered if the whole matter were cleared up legislatively.
3. ADMINISTRATIVE ARRANGEMENTS FOR OFFICIAL PUBLICATIONS The administrative arrangements are outlined in a 'general notice', entitled Crown and Parliamentary Copyright, issued in 1990, revised in 1993, and again issued in revised form in 1996 just before the Ministerial statement.[10] This stresses that the Controller of HMSO has a unique authority, conferred by Royal Letters Patent, over all copyrights belonging to the Crown. It insists that no government departments or other Crown bodies should deal with such rights except with specific authority from the HMSO Copyright Unit, which administers these rights. A number of incidents have shown that this does not always happen, either through confusion, oversight, or disagreement about the scope of Crown copyright. (Saxby, 1996, p. 107) There is evidence, for example, that judges themselves have sometimes given permission for reproduction of documents relating to court proceedings, presumably because they reject the Treasury Solicitor's view discussed above. As we have seen, Crown copyright does not include Parliamentary documents, which are owned and administered by each House separately. However, under an agreement of 1989, the HMSO Copyright Unit administers the rights for those items published by HMSO. The privatisation of the Stationery Office, according to the Minister's statement, means that it will have to be licensed 'in the same way as other private-sector publishers'. Each House of Parliament must therefore soon consider both (i) whether to continue to license the new Stationery Office to publish its proceedings and other documents, and (ii) whether and on what terms the Controller of HMSO should continue to administer the rights in its publications. The Minister's statement indicates that government departments, for their part, will not be tied to the official Stationery Office for their publishing, and will still be obliged both to seek competitive quotations,and to 'recover where appropriate the costs of preparation, production, and dissemination of materials'. Presumably, the HMSO Copyright Unit will also have to consider whether to license the new Stationery Office as the first publisher of legislation or other HMSO copyright material. However, it seems that this right (and obligation) is part of the package on offer to potential purchasers of the Stationery Office, which went on sale in March 1996.
3. Administrative Arrangements For Official Publications (ii) At present, there appears to be no intention to make any change to the present policy of charging for access to official information. Some obeisance is paid to the principle that citizens might expect free access. This is done in the form of unilateral statements taking the form of an open general licence permitting free reproduction without the need for prior permission of certain categories of material in certain conditions. These permissions are contained both in the General Notice itself, and also in circulars referred to as the 'Dear Publisher' and 'Dear Librarian' letters. A modified version of the former letter was also issued as part of the recent revisions, but nothing has yet officially been said by HMSO about the implications for users such as libraries of electronic access to government documents. Yet documents are already becoming available: for example, the Foreign Office released on the Net the text of the government's White Paper on Europe, A Partnership of Nations.[11]
3.1 Free Reproduction Without Prior Request (i) This principle is applied, under the revised notice, to (i) primary and secondary legislation, (ii) reports of parliamentary proceedings (Hansard), Bills and other parliamentary business papers, and (iii) government press releases. The notice itself allows free reproduction of the whole text of material in these categories, if it is in printed form and does not use camera-ready copy, and if there is value added "by compilation with other related text, analysis, commentary, annotation, indexing, cross-referencing, or otherwise". The concession is also subject to the general conditions that (i) the material is reproduced in an accurate and non-misleading fashion and context, (ii) the source is acknowledged as Crown copyright, (iii) there is no advertising or endorsement involved, (iv) the context does not potentially involve libel or slander, and (v) in relation to Parliamentary material, there is no undignified association, or unfair or misleading selection -- in particular, extracts of Hansard must be reproduced verbatim. The extension of this concession to reproduction in electronic and other non-print formats was accomplished, following the Minister's statement, by changes to the 'Dear Publisher' letter, together with a related letter sent to existing licensees. These waived charges for non-print reproduction of Crown copyright material in this category (i.e. primary and secondary legislation, and press releases). The same requirement and criteria for value added are laid down as for print media, although it may be assumed that republication in electronic format necessarily involves adding value since each format will have its own software. Application of this concession to Parliamentary material requires a decision by each House, which is awaited. The concession for electronic publication is specifically extended to publication on the Internet. The letter to licensees makes it clear that the waiver of charges covers not only royalties but also loading fees. Loading fees are also to be waived even where royalties are applicable, except in the case of material originating from the Health and Safety Executive.
3.1 Free Reproduction Without Prior Request (ii) The value of this new concession greatly depends on what is made available by government in electronic format, and how it is made available. The Minister's statement mentions the Statute Law database which is being prepared by the Statutory Publications Office. This he describes as 'a value-added electronic version of the whole statute book', and states that copyright and charging policy for it will not be decided until nearer the time of its implementation in 1997 (by which time we are likely to have a new Minister, though the civil servants may remain the same). Aside from this, the Minister announced that HMSO is releasing on the Net the summaries of 200 Acts of parliament passed since 1984, and is planning to publish henceforth the full texts of all new Acts.[12] Thus, the raw text of new statutes (and perhaps also secondary legislation) should become available within, it is hoped, two weeks of their first publication in hard copy. Accompanying the text will be a statement, which is being finalised, indicating what users are allowed to do in terms of downloading the text to file or printing. For public access to the law, this is two steps forward and one step back. No doubt the difficulty of enforcement, once material is made available on the Net, of any copyright restrictions or system of charging, was a major factor in eliciting the concession for electronic republication. Commercial publishers will presumably meet the 'value added' requirement not only by republishing in their own electronic formats, but also by updating statutes as they come to be amended, and perhaps adding annotations and cross-references, as they presently do in print formats. But it seems that, perhaps to help safeguard the value of the right of first publication of statutes (which apparently is to be transferred to the privatised Stationery Office), it is not intended to publish on the Internet until after the hard copy. Permission is also given for shorter extracts of up to 10% from all parliamentary titles published by HMSO, without charge or prior permission. Presumably, extension of permission by Parliament to electronic reproduction will also apply to this concession, but the details must await consideration by each House.
A general permission has also been granted to cover photocopying of Crown and Parliamentary material, under a "Dear Librarian" letter, issued in 1985, revised in 1989, and most recently in April 1995. Although addressed to librarians, it allows photocopying by anyone, within the prescribed limits. It covers all Parliamentary proceedings and papers, including Command papers and Committee reports if published by HMSO, as well as the legislative material (primary and secondary) which is Crown copyright, and departmental press releases. The letter allows copying of up to the whole text of a document, provided no more than one copy is made for any one individual, no more than one is used within an organization, and copies are not distributed to others. Multiple copies may be made of extracts amounting to less than 30% of a single work. General conditions again apply prohibiting use in connection with advertising, in a misleading context, etc. In addition, users registered with the Copyright Licensing Agency may make copies within the terms of their CLA licence. It is also apparently the policy of HMSO to permit educational institutions to make multiple copies of the whole text of primary and secondary legislation for their students. This letter has not yet been revised, and its present version does not address issues arising both from the privatisation of the Stationery Office and the release of government documents on the Net. Since it refers only to photocopying, a revision or a new statement will be necessary to define the limits of non-print copying. The distinction between single and multiple copies becomes very blurred once there is electronic access, which makes it possible for many individuals quite easily to access and download to disc or print. This will tend to undermine the protection which the policy at present seeks to extend to HMSO as first publisher (by requiring those who need multiple copies of over 30% of a text to buy it from HMSO). This protection will obviously be an important asset which will either be part of the package transferred to the privatised Stationery Office, or licensed to it or to one of its competitors. Thus the extent of this permission is likely to be a focus of much more acute concern than has been the case until now.
3.3 Licensing on Request of Free Reproduction Some official publications are also accepted as available in principle for free reproduction, but only by application on a case-by-case basis. This appears to apply in particular to parliamentary publications, especially Command papers and Committee reports, the reason being that they may contain or include material which is neither Crown nor parliamentary copyright, but that of another person. In addition, it seems to be general policy to make no charge if republication is for educational or scientific purposes and on a non-profit basis. This has been very valuable, in particular, to the Law Courseware Consortium, for the inclusion of Crown and Parliamentary material in its CD-ROM. HMSO also allows by general delegation that government departments may authorise the publication of papers in learned journals and proceedings of conferences, reducing or waiving fees, provided there is due acknowledgement and copyright remains with the Crown.
Legislation and parliamentary debates form only a small part of the realm of official documents. An increasingly important category has been that of 'quasi-legislative material'. This was the subject of a separate notice, issued as QLM/1 in July 1994, and in revised form as QLM/2 in February 1995. The terms of this concession were the result of a long and arduous negotiation between the HMSO Copyright Unit and the Professional Publishers Permissions Group. This sets up an easy procedure for licensing on defined terms for quasi-legislative material. The intending publisher need only complete and submit a standard form, and is guaranteed either an acceptance within less than a month, or reasons for refusal (in which case there is provision for appeal to the Copyright Tribunal). Some publishers may also be allowed to publish first and render an account retrospectively. The basic terms require a royalty of 7.5% (depending on the proportion of licensed material to published material) and that the publisher keep full records and render accounts. The licence covers print media, is non-exclusive, and requires value-added. 'Quasi-legislative material' is defined as 'materials which form or explain the framework within which legislative provisions are administered and the regulatory practices followed by public servants within that framework; for example, statutory codes of practice, departmental circulars, court rules and court forms', and there are some exclusions 'for the avoidance of doubt', including the Highway Code. There have been continuing negotiations over the extension of this arrangement to non-print reproduction. Although it is likely that there will be such an extension, government policy is to seek a higher royalty rate.
Although there are a number of concessions, itemised above, the underlying attitude is that copyright in official documents is an asset which should as far as possible produce a return to benefit the taxpayer by helping to defray the costs of production. This leads to considerable transaction costs in administering the rights, and the overall return is hardly enough to justify the arrangements. HMSO estimates its income from administration of Crown copyright in 1996 at £1.3m, against costs of £287,000, thus claiming a surplus for the taxpayer of around £1m.[13] However, both this sum as well as considerable transaction costs are loaded on to the publishers and others who have to seek HMSO permissions, who inevitably seek to recover them from sales. In effect, this is a tax which is being levied on purchasers of government publications, as part of Treasury and government policy of replacing general taxes on income by direct charges for specific services. Whether this is acceptable depends on the strength of public feeling about public services. Therefore, all those involved in the production and dissemination of information and ideas directly linked to the government process should defend public accessibility by arguing for a legal principle of public domain. A second argument against direct charges is that they are often inefficient, since they impose high transaction costs, and that is certainly the case here. Administrative difficulties have been exacerbated as a result of the fragmentation of government, and the pressures on agencies and departments to reduce costs (Saxby, 1996, pp. 105ff). This has resulted in at least one dispute involving litigation, about to come before the courts, concerning the publication of the Inland Revenue internal guidance manuals. At one stage, the Inland Revenue purported to grant an exclusive licence to one publisher, while another publisher claimed the right to publish a value-added version under the QLM arrangements. Further disputes arose about a licence to produce an electronic version of the Manuals, which HMSO alleged was invalidly sub-licensed. Much of this seems driven by the pressure on the Inland Revenue to gain the highest return from granting rights over the Manuals, rather than the public interest in dissemination of the information they contain.
4. Open Access And Public Domain It seems plain that the present policy is inappropriate for the age of electronic information and open government. The costs of origination of published material fall to nearly zero when a word-processed text can easily be put up on a server and made freely available. To continue to seek a return 'for the taxpayer' from circulation of official documents is simply to shift the burden of taxation, since it unnecessarily adds to the cost of the information. The tax on the consumer of official information is obviously an inefficient as well as an undesirable one. It seems strange that a government committed to market forces is reluctant to allow those forces free play in reducing the costs of dissemination of official information. The complexity and obscurity of the legal and administrative arrangements outlined above cry out for incisive reform. Now is clearly the moment. A simple two-clause Bill could replace the present maze of administrative arrangements outlined above, and bring us broadly into line with the USA, although some improvements to the US legal provisions could be made.[14] It should be based on a new definition of official works produced as part of the process of government, to make clear what is covered, for example court documents and judgments. In my view, the definition should be broadly based on the work being produced as part of the process of government, regardless of the employment status of the author. This would include work produced by a consultant or contractor, and for example evidence submitted to a parliamentary inquiry or given by a witness, unless excluded explicitly by the terms of a contract of employment, or for commissioned work, or in the legal provisions establishing an agency. This is important now, given the extent of delegation of government activities to many types of regulators and agencies. It should also clarify that public domain extends to publication in other countries.[15] All such works should be treated as in the public domain, meaning that they could be freely reproduced by others. However, this should be complemented by spelling out a principle of safeguard of the integrity and authenticity of such works. This could be considered to be either a restatement of the rationale of Crown prerogative, or an extension of the doctrine of moral rights, although since each of these doctrines is not fully adequate, the principle should be spelled out. It should reserve the right to bring proceedings to prevent or sanction any publication which damages the integrity or authenticity of an official work, or which would have the effect of impeding the open conduct of government. This right is clearly linked to the whole question of open government, so its definition and enforcement should be considered in that context, as part of a Freedom of Information Act. The adoption of such a policy and legislation is not only necessary and appropriate for the UK at this time, but would also put this country in the vanguard of the process of establishing a European and global system of open government.[16]
Bannon C J (1982) 'Copyright in reasons for judgment and law reporting' 56 ALJ 59 Bruce T (1995) "Legal Information, Open Models, and Current Practice", Montreal Conference on Crown Copyright in Cyberspace, May 1995, < http://www.droit.umontreal.ca/crdp/en/equipes/technologie/conferences/dac/bruce/bruce.html > Cornish W (1989) Intellectual Property: Patents, Copyright, Trade Marks, and Allied Rights (2nd ed., Sweet & Maxwell). Geller P E (ed). (1995). International Copyright Law and Practice. (New York, M. Bender.) Laddie Hugh, Prescott P & Vitoria M (1995) The Modern Law of Copyright and Designs (2nd ed., Butterworths). Lahore J (1988) Copyright Law (Australia: Butterworths) Monotti A (1992) 'Nature and Basis of Crown Copyright in Official Publications' 9 EIPR 305 Nimmer and Nimmer (eds) (1995), Nimmer on Copyright (New York: Bender) Picciotto S & Ruete M (1985) 'Copyright in Court Judgments and Reports', 6 Journal of Media Law & Practice 75-86. Saxby Stephen (1996) Public Policy and Legal Regulation of the Information Market in the Digital Network Environment, CompLex 2/96, (Norwegian Research Centre for Computers and Law) Chs. 1-3 are also being published in the International Journal of Law & Information Technology , and ch.4 in the International Yearbook of Law, Computers, and Technology. Skone James E P et al. (1991) Copinger and Skone James on Copyright (13th ed., Sweet & Maxwell) Sterling David (1995) 'Crown Copyright in the United Kingdom and other Commonwealth Countries' Montreal conference on Crown Copyright in Cyberspace , May 1995, < http://www.droit.umontreal.ca/crdp/en/equipes/technologie/conferences/dac/sterling/sterling.html > Taggart M (1984) 'Copyright in Written Reasons for Judgment' 10 Sydney LR 319 Vaver David (1995) 'Copyright and the State in Canada and the US' , Montreal conference on Crown Copyright in Cyberspace , May 1995 < http://www.droit.umontreal.ca/crdp/en/equipes/technologie/conferences/dac/vaver/vaver.html >
Footnotes [1] The conflicts between the government's policy of 'cost recovery' and its commitments, in principle, to open government and to support of the information society, are spelled out in detail by Stephen Saxby in (Saxby,1996, ch.3), 'Public Information Access Policy in the Digital Network Environment'.
[2] For a discussion of the different value-added roles of various players in legal information provision in the digital environment, such as academia, government, and publishers, see (Bruce,1996). [3] The change resulted from the recommendations of the Whitford Committee on Copyright, (1977) Cmnd 6732, paras 592-600. The Committee considered that the term "direction or control" was too broad (and, rather strangely, seemed to resent the notion that their own work might be considered to be at the direction of the Crown); so their recommendation was that the Crown's position should be assimilated to that of any employer. They do not seem to have addressed the issue of public domain at all. The CDPA 1988 explicitly preserved any rights which may still subsist at common law, including Crown privilege, the nature and extent of which have long been controversial. See further below, and (Monotti, 1992). [4] The definition of Parliamentary copyright in CDPA 1988 uses the broader phrase 'made by or under the control or direction' of either House, which is stated to include recordings or broadcasts of proceedings, but commissioned work is excluded by s.165(4). Thus, items such as Select Committee reports are not necessarily Parliamentary copyright, to the extent that they include material such as evidence submitted by an outside person, unless the rights are transferred. Copyright in Bills is also vested in Parliament (s.166). [5] ( Laddie et al, 1995 ). distinguish between a reserved judgment, which is written out by the judge beforehand, and one given in open court and transcribed by a reporter. However, a judge who delivers a judgment extempore may do so from extensive notes, and generally is provided with the reporter's transcript for correction; and judges may be given the opportunity for final corrections in both circumstances. Authenticity now derives from approval by the judge and not the skill of the reporter. [6] Apart from their rights under the peculiar provision in UK law as to the typographical layout: CDPA 1988 ss.8, 15. [7] There is a further complication, in that reporters now no longer normally sit in open court, but produce a transcript from tape recordings, which are made in most courts by the Lord Chancellor's Department. Since this is done by Crown employees, the recording belongs to the Crown, but this covers only the recorded sounds and not the words themselves (Laddie et al. para 22.41). Reporters are licensed by the LCD to produce transcripts, which they are also permitted to sell. Publishers acquire transcripts on the basis of a one-off payment and not a royalty. This they consider is payment for the transcript and not the actual words of the judgment. Thus, even if the court reporters are not authorised by the LCD to license third parties to reproduce their transcripts, it could be argued that the transcript is merely being used to authenticate the text of the judgment itself, which belongs to the judge. It would still be open to the LCD to prohibit reporters from supplying a transcript to anyone for such purposes. [8] This effectively puts them in the public domain, which is the principle accepted by US courts in respect of court decisions, independently of the broader position of official documents: Banks v. Manchester 128 US 244 (1888). Commentators generally agree that this is the desirable outcome, though they disagree as to the legal basis. In Australia,(Bannon,1982) argued that there remains a Crown prerogative over law reporting, in view of the judges' public role and the importance of safeguarding the integrity and accuracy of reports; (Taggart, 1984), in response pointed out that this was not historically accurate given that law reports had been privately published in England since the 17th century, and that the prerogative could not be extended; but he argued that, although the judges own the rights, they can be regarded as freely available either by abandonment or for public policy reasons (at p.327). The history is also examined by (Monotti, 1992); see also (Lahore ,1988, paras. 1021.60-65). [9] There is a subsidiary argument that CDPA 1988 s.45 exempts anything done for the purposes of reporting parliamentary or judicial proceedings, but this explicitly excludes the copying of a work which is itself a published report of such proceedings. By implication this might exempt publication of an unpublished report. [10] The 1990 version is reprinted in (Copinger & Skone James, 1991, B219) and the 1993 version in (Laddie et al, 1995, vol.II, p.559). The current text is available through HMSO at <http://www.hmso.gov.uk/publet.htm>. [11] See <http://www.fco.gov.uk/europe/igc/index.html>. It is accompanied by instructions on how to download the document to disc for future use, which implies permission to do so. There appears to be no statement as to the copyright position, either on the FCO's excellent home page, or that maintained by the CCTA for accessing all government information, <http://www.open.gov.uk/index.htm>. [12] Some Acts are already accessible at < http://www.hmso.gov.uk/acts.htm >, including the Data Protection Act 1984, and several recent statutes (in full text), as well as others in summary form. [13] In comparison, the procurement budget for information systems of the Government Centre for Information Systems (still known by the acronym CCTA) exceeds £2bn per year, and it employs nearly 20,000 people to buy, install, and run systems to support departmental administration: (Saxby, 1996, p. 109). [14] Under the US Copyright Act s.105 copyright is not available for "any work of the US government", defined in s.101 as 'work prepared by an officer or employee of the US government', which appears to be based on a 'course of employment' principle. Commissioned works may also be included as 'works made for hire', but this requires a written notice of commission: (Nimmer , 1995, s.5.06). [15] The US position creates some ambiguity. The principle under the Berne Convention is that legality depends on the place of publication, with an obligation to extend national treatment to the authors of other countries, while article 2(4) leaves it up to each country to decide the protection to be given to its official texts. Since the US gives no protection to government documents, it is arguable that there is no 'author' whom other states are under an obligation to protect; alternatively, states who do protect their own official publications could be argued to have the obligation to give equivalent protection to those of others. If the aim is to provide an 'optimally coherent web of remedies and sanctions worldwide' (Geller,1995, p. INT-51), it would seem that a work considered to be public domain in its state of origin should have that status worldwide. Conversely, merely because US government works are not protected in the US should not mean that works of other governments should not be protected in the USA: see (Nimmer, 1995 s. 5.06). For a contrary view, see (Vaver, 1995, p. 7). [16] See (Saxby, 1996, ch. 3) for a discussion of the relationship of the UK to regional and global initiatives, especially the EU's INFO2000 project, and the Global Information Society initiative launched at the Brussels G7 meeting in February 1995. |
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