JILT 1996 (2) - Gordon Robbie
Crown Copyright - Bête Noire or White Knight?
Gordon Robbie
Head of Copyright
HMSO
Contents
1. Background
2. Current Criticisms (i) | (ii) | (iii)
5. The Availability of Licences
7. Conclusion
Download Date of Publication: 7 May 1996
Links Updated: 3 April 1997
Citation: Robbie, G (1996) Crown Copyright - Bête Noire or White Knight?, 1996 (2) The Journal of Information Law and Technology (JILT), <http://elj.warwick.ac.uk/elj/jilt/leginfo/2robbie/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_2/special/robbie/>
Crown copyright was not a focus of much interest or debate until the 1880s, at which time a few private sector publishers were beginning to realise the commercial potential of some of the titles of more general interest being issued by Her Majesty's Stationery Office, and took an injudicious advantage of the Crown's hitherto good nature in the matter of copyright. Having taken the advice of the Crown's law officers, the Treasury procured the publication of the following notice in the London Gazette of 23 November 1886:
'Printers and Publishers are reminded that anyone reprinting without due authority matter which has appeared in any Government publication renders himself liable to the same penalties as those he might under like circumstances have incurred had the copyright been in private hands'
It's the old story that the intemperate acts of the few result in a constraint of activities for the many. The Lords of the Treasury later remarked in a minute:-
'My Lords see no reason why such works - often produced at considerable cost - should be reproduced by private enterprise for the benefit of individual publishers.'
Plus ça change, plus c'est la même chose. Pro bono publico arguments are too often advanced in pursuit of nothing more than an improved bottom line - which is a laudable enough aim in itself if openly acknowledged.
It is asserted that copyright should not exist at all in official material. The contrary question should be posed as to why the Crown, among all other information providers, should be so singled out. Prior to the 1911 Copyright Act, the Crown was not differentiated against in the matter of copyright, but held only the same rights as any other copyright owner (leaving aside Royal prerogative), and was not much inclined to excercise those rights until provoked by the blatant plagiarism by some commercial publishers for their own profit of material produced, for example, by the War Office, the Patent Office, the Privy Council Office and, not least, Ordnance Survey.
There followed the Copyright Act of 1911, in which Parliament chose, for the first time, to statutorily define Crown copyright. Later Parliaments, in 1956 and 1988 have seen no reason to depart from this position, and the Copyright, Designs and Patents Act 1988 defines Crown copyright as subsisting 'where a work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties'. The Queen is defined in the Act as the first owner of Crown copyright and she, under Royal Letters Patent, confers the responsibility and authority for administering all Crown copyrights on the Controller of HMSO. Not to judiciously excercise such rights and responsibilities conferred by Parliament and the reigning monarch would be a dereliction of duty. The Controller, in turn, sets up the Copyright Unit within HMSO to actually do the job on a day-to-day basis. That Unit will remain part of the Crown on the forthcoming privatisation of the rest of HMSO. And there, in a few lines, is the history of Crown copyright to date, and an outline of its operational framework!
A vociferous lobby, including some major commercial interests with their own axe to grind, currently argues that it is inappropriate for copyright to subsist and be exercised in such items of general public interest as legisation (Crown copyright) and the proceedings of Parliament (Parliamentary copyright), and points out that this is a rare situation in Western democracies. This is, of course, an arguable viewpoint, but not the only one. Being a Scot, I have always subscribed to the theory that they're a' oot o' step bit oor Jock! To be serious, though, adherents of that lobby find many opportunities to argue their point of view in the columns of the broadsheets, in learned journals, in various seminars and conferences, in correspondence with Ministers and MPs and, not least, via e-mail on the Internet. Not all of that comment is accurate, well informed or balanced!
In the first place, critics seem to have little appreciation that copyright royalties, levied largely on the private sector income streams generated by commercial exploitation of Crown material, save the general taxpayer some ?0m per year, most of that relating to uses of Ordnance Survey mapping data. Of course, it may be argued that this saving should not be made and that taxpayers should be ready, willing and able to subsidise the profits of commercial organisations by this modest amount - and it is admittedly a modest amount compared with the group profits of some of the major players. Obviously this question is a political judgement call. But certainly successive Governments, and therefore Parliaments, of different persuasions over a long period of time have seen fit to put a sale price on a high proportion of officially published titles as a means of defraying the costs of publication, and, of course, copyright royalties serve that same general purpose. So successive Governments have seen this as a not unreasonable thing to do, and the only thing that changes is the balance between cost recovery and subsidisation. As differing views have been taken in the past, so there will no doubt be changes under future Governments. One refinement that may emerge in due course is an increased emphasis on making official information available as freely as possible to individual citizens for their personal purposes, while continuing to ensure that the Crown gets a fair cut of the action where Crown material is used for commercial gain.
Secondly, it is apparently not realised or not admitted by the critics, in relation to one of the most frequent criticisms - the exercise of Crown copyright in Acts and SIs - that Crown copyright has for years been waived in respect of printed reproduction of statutory material in any value added context, which effectively gives law publishers free and unrestricted access to Acts and SIs for use in their wide range of textbooks and reference material, thus enabling them to keep the prices of their excellent publications at a readily affordable level, for the benefit of students, the law profession and the general public; and that, following the recent response to a Question in the Commons, this waiver has been extended in the same terms to reproduction of Acts and SIs in all other formats. I would hope, of course, that free rights to reproduce these important official texts in print and electronic form have a noticeable effect on the prices charged for those products of commercial publishers where this Crown material forms a significant proportion of the content, so that the benefit is properly passed on as intended to the public at large. Related material, such as Bills and both Hansards, are Parliamentary copyright, and, although the Copyright Unit acts as the agent for Parliament under a 1989 agreement, it is for the respective Houses to determine how their copyrights will be exercised. Both Houses are currently re-examining their copyright policies and a re-negotiation of the 1989 agreement with HMSO is under way.
Thirdly, it is apparently again often overlooked or not admitted that the Crown has a long standing practice of waiving or reducing fees in respect of applications for use of Crown material for professional, technical or scientific purposes where profit is not a main purpose of reproduction. Consideration of reduction or remission of fees will also be given to reproduction in works of scholarship, in the journals of learned societies and similar non-profit-making bodies, for educational purposes, and in other cases where the need for the fullest dissemination of official information is paramount and outweighs any other considerations. Those who have taken the trouble to enquire directly of the Copyright Unit will have been aware of this for some time but it has now been explicitly spelt out at paragraph 2.2.2 of the latest Dear Publisher letter of 1 March 1996 - see paragraph 3.1 below.
Fourthly, it is implied in much of the critical comment that access is actually denied to Crown material, and that licence applications are unreasonably refused. I can only say that this is a gross terminological inexactitude. It is the Copyright Unit's policy and practice to readily licence, in circumstances where the waivers and concessions described above do not apply, the reproduction of Crown material, and of that Parliamentary material for which Parliament have appointed the Unit as their agent. In addition to the many free permissions which are given in response to phoned or written enquiries, the Unit issues some 2,000 or so permissions or licences each year, many of which are once-offs but a good proportion of which are licences which run on for a number of years. These agreements can yield anything from a single payment of, say, ?0 to continuing annual incomes of many thousands of pounds, and are with a spectrum of customers ranging from private individuals to major state-of-the-art publishers. The number of licensees or applicants who voice serious complaints can be numbered on the fingers of one hand, and are usually those who are unwilling to negotiate or compromise and wish to licence material on nothing other than their own dictated terms.
Another factor not often appreciated is that copyright is not only a way of raising money, it is also a means by which copyright holders can ensure that their material is used properly and responsibily by third parties. This is of particular importance where that material is authoritative, and where the general public, in one way or the other, are placing reliance on its veracity and accuracy. The Copyright Unit does come across cases of abuse and is able to pursue and prevent them.
Lastly, and by way of summary, it would seem that many of the critical contributors to the debate have never actually had any direct contact with the Copyright Unit and seem ready to base their critical stance on nothing more than third-party anecdotal evidence. Debating matters of principle, i.e. should copyright exist at all in Government material, is all very well, but such arguments should not be pursued in vacuo or ad nauseam. At some point the debate should take account of the fact that such copyright does exist, with the successive blessings of Parliament, and that its excercise in practice matters at least as much as abstract considerations of principle.
It is the general practice of the Copyright Unit to licence readily and to licence non-exclusively. It is also the Unit's practice, though it has unique authority under the Letters Patent to deal in Crown copyright, to take into account the wishes and interests of other Government departments and Crown bodies who originate the material in which the Unit deals. Given the diverse activities and objectives of all the bodies involved, it is not always easy to negotiate an outcome satisfactory to all concerned, but that is the task which the Unit sets itself.
It is general Crown practice to respond to matters raised directly by the public with Departments, Ministers or MPs, but only exceptionally to react to viewpoints expressed generally in the media, with the result that false impressions and perceptions conveyed in this way may go uncorrected and gather unjustified credence in the telling. On the other hand, the Copyright Unit, certainly since the mid 1980s, has taken some pains to make available information about Crown copyright policy and practice. General guidelines are provided to the public in the form of Dear Publisher and Dear Librarian letters. These are primarily intended for organisations and individuals working in those areas and new versions of both letters are mailed out to those target audiences with the help of the relevant industry and professional organisations. Guidance on Crown copyright is provided to other areas of Government through a Dear Establishment Officer letter. All three letters can be obtained on request by the general public and are available on the Internet at http://www.hmso.gov.uk/copy.htm . The Copyright Unit also produces a more substantial booklet ' Copyright - a brief guide for government departments which highlights significant areas of current copyright law and also contains as annexes the three letters above. This booklet is also available to the general public on request. Further to that, the Copyright Unit is always happy to receive queries directly by phone or letter. All that being the case, it is galling to be aware of so much public comment which is so determinedly ill-informed. I have to say that from such material as I've seen, Internet discussion groups seem to be particularly prone to this syndrome, though they are certainly not alone and my opinion of some parts of the national press has been severely jaundiced by their partisan coverage of Crown copyright matters.
The basic principles of Crown copyright practice were systematically established under the guiding hand of Sir Norman Scorgie, a long-serving senior officer in HMSO and Controller from 1942 to 1949. His ground rules provided, inter alia, that the Crown should generally charge for licences where the licensee's main purpose was profit, and that there should be an overall emphasis on consistency and fairness. As a lawyer himself, he believed that the rights granted by the 1911 Copyright Act, still the current Act at the time, should not languish by default, while equally realising that arbitrary use of those rights could do more harm than good.
Current Crown copyright policy and practice has evolved over the years from those same general principles. Although the Copyright Unit is independent of official publishing functions, it must nevertheless operate within the framework of UK law and Government policy - responsibility for which lies with other areas of Government - and these are obviously major factors in that evolution. In law, the Crown, with one or two specified exceptions such as duration and and the non-applicability of moral rights, has the same rights as any other copyright holder, no more and no less. Current Government policy, generally speaking, is that the costs of official publishing are met by the end-users of the material published, through their paying for the titles which they require, rather than out of general taxation. Within that context, and with the exceptions described above for statutory material, commercial rates are normally charged for commercial reproduction of Crown material.
5. The Availability of Licences
To avoid any accusations of protecting a Crown monopoly, licences are readily granted for the reproduction of Crown material in a wide variey of formats and circumstances. Equally, to avoid dangers of creating a private monopoly in public information, licences are usually granted on a non-exclusive basis. Any complaints, therefore, that licences can't be obtained are, not to put too fine a point on it, codswallop! Certainly there are occasional glitches in relation to some departmental sensitivities about some material; and there are always a few customers who would express displeasure with any licence conditions other than ones they dictated. But overall the Copyright Unit does a lot of good business with a lot of customers, ranging, in the UK and abroad, from individuals to multi-national companies.
Crown copyright practice has also evolved over the years in response to changes in technology, and will continue to evolve as transitory changes solidify into established patterns. Of course, the Crown generally is keenly interested in Internet developments, but, like all other information providers and publishers for whom cost recovery may be a consideration, it must weigh the benefits and the potential pitfalls carefully, and consider how the Internet can fit into a very large existing jigsaw of information provision. Bills, Acts and Statutory Instruments are published and distributed efficiently, and are widely available to the ordinary citizen through retail bookshops nation-wide, by mail order and through public libraries. They are priced as cheaply as possible given the requirements placed on HMSO, the publisher, by Parliament and Government - and those prices are subject to Parliamentary oversight while HMSO remains a Government Agency. Additionally, there are the other licensed sources in conventional textbooks, in legal journals, and computer databases, either in distributable form like the many CD-ROMs on the market, or through existing on-line services.
Given the long-standing availability of conventional on-line services, the only novel factor about the Internet is that it is generally free at the point of use, provided that the end-user is computer literate and buys or obtains access to a suitable computer, modem, software and telecomms facility, and has the means to meet the resultant telephone bills. This 'free' use further depends on someone other than the end-user being prepared, for whatever reason, to swallow the not inconsiderable cost of acquiring a server or server space, editing, preparing and mounting worthwhile volumes of data, and maintaining its accuracy and currency. The Net's freedom and lack of regulation or restriction obviously endears it to Net surfers, but as an ordered and efficient information source, the Internet does not have a lot going for it; and the bigger it gets, the more difficult it will be to find what you want, be sure that you have found everything relevant, or find it in a reasonable time. How many UK users have tried using the Net at the time when the USA wakes up for business? Furthermore, given the Net's basically anarchic nature, even when you find something, you may not be sure that it's accurate, current or even the genuine article; and if someone does create order out of chaos, then it will no longer be the Net but just another online service. Catch 22!
6.3 Official Information on the Internet
Having said all that- which is only my personal opinion - the Internet is the flavour of the month, if not the year, for some members of that vociferous lobby mentioned at the beginning of this article and the Crown has responded handsomely to that by offering a lot of official information via departmental servers, not least text of recently enacted Acts and summaries of some 200 other significant pieces of legislation on the HMSO server, along with a lot of information on Crown copyright. Additionally, of course, the new copyright arrangements allowing free electronic reproduction of Acts and SIs in a value-added context can apply to the Internet. Government generally is therefore placing a deal of current emphasis on using the Internet, and putting a lot of steam into Internet development. The fact remains, however, that the Internet is only one means among many by which Government can provide information to the individual citizen, and it is still a long way from being the universally best method. But that is today's situation. Tomorrow will be different, but the actual changes may not be the ones currently predicted. Pragmatism rules, OK.
The Crown copyright scene, I would therefore contend, is not nearly as black as it has been painted. Significant waivers and concessions are allowed and non-exclusive licences are readily available and widely issued. The Internet is already widely used by Government and its use for the provision of official information direct to the individual citizen will certainly increase. It is unwise in the meantime to pay too much attention to apocryphal hearsay. If you want to reproduce Crown material, or have a problem, or just require some information, please do get in touch directly with the Copyright Unit . You may be pleasantly surprised at the outcome.