LA/JCC Working Party on Copyright
Response to Green Paper on Crown Copyright

General comments

This response is from the LA/JCC working party on Copyright which represents the members of the following organisations: ASLIB, the Institute of Information Scientists, The Library Association, the Standing Conference on National and University Libraries (SCONUL) and the Society of Archivists. Comments from the British Library, BPLC (the British Photographers' Liaison Committee) and SCOOP (Standing Committee on Official Publications) which is a subordinate body of the Information Services Group of The LA have also been incorporated. As the main voice speaking on copyright on behalf of the library and information professions as well as our users - the consumers of information - we welcome the opportunity to comment in this important consultation exercise.

This consultation document is as much about freedom of information as it is about the protection of Crown or State rights. Freedom of information is a core responsibility of our profession and we attach a high value to the concept. The library and information profession is uniquely placed to defend and deliver freedom of information. We welcome the Government's commitment to making more Government information available to its citizens and the fact that it is reviewing its attitude towards the handling of Crown copyright.

We believe that information, like education and health services, should be available to all regardless of gender, race, class or the ability to pay. We would like a commitment from the Government that it believes this too. It is not only a desirable goal from a democratic point of view, it has economic benefits as well. If information is made easier to access and use, the costs are reduced in the long term. Much valuable time can be spent in tracking and obtaining information. To many, especially those working in business and industry, time spent means money wasted. Clearing copyright, whether it be for Crown or for other published or unpublished material also adds to the cost of businesses, educational establishments libraries and archives.

Although, we believe that there should be greater access to Government information, we have reservations about recommending that Crown copyright should be abolished. We share the Government's concern to protect the accuracy, integrity and authenticity of Crown material. In principle, therefore we believe that Crown Copyright should remain but, in many instances, it should not be enforced. We appreciate that the tradition of obtaining revenue from Crown Copyright works is not going to be an easy one to break. However, the prime purpose of Crown copyright is not to ensure that central Government obtains significant revenues from selling information which has been obtained at public expense. Material which has been paid for by the public purse should be available to the public without restriction. We wish to suggest, therefore, that the prime element in protecting Crown copyright is the need to protect the rights of paternity and integrity rather than the enforcement of the economic rights. The overriding objective for the Government should therefore be to ensure efficient, effective, equitable and economic access to its information. If revenue can be recouped along the way, this is a bonus - but it should not be the raison d'être.

We believe it is essential that HMSO as a body should remain to manage the use of Crown materials, to oversee any deals with the private sector and control standards of publishing. It should be the body which handles fast-track licensing.

The provisions contained in the HMSO "Dear Librarian" and "Dear Publisher" series of letters have been welcomed by our profession as a useful first step to opening up Crown and Parliamentary material.

Specific comments

Chapter One

Section 1.7-10 The role and position of The Stationery Office Limited
Although the newly privatised TSO is making efforts to understand the needs of the library and information profession, the privatisation of HMSO has caused a conflict of interest between making 'profit' and dissemination of information. It is stated at S.1.10 that Government departments have complete freedom of choice in their selection of a publisher. This in fact restricts the freedom of access of citizens by placing a minefield of different publishers and publishing standards in their way, made all the more difficult by the lack of a central source of bibliographic information.

Section 1.11-12 Policy in the UK
It is argued that in endeavouring to disseminate official information as widely as possible, the interests of the taxpayer must be taken into account and that where material has a commercial value that efforts must be made to protect the taxpayer by recovering costs. However, it must not be forgotten that the taxpayer has already paid for the material to be created in the first place. They should benefit regardless of the commercial value. Surely taxpayers have a right to expect free or low-cost access to data or information which has been collected or processed at their expense?. Such unrestricted access to information and data gives benefits for all - the general public, students, industry and business. If information is made easier to access and use, the costs are reduced in the long term. Much valuable time can be spent in tracking and obtaining information. We are not against the commercial exploitation of data i.e. adding value to official information and exploiting it, as long as the public is still able to access and use freely the raw information and data (i.e. works routinely produced by the Government with no added-value). The library and information profession is still bitter about the effects of the agreement between the Office of National Statistics (ONS) and Taylor Nelson whereby access to statistical data was controlled by both copyright and price with the result that few libraries could buy the products. This should never have been agreed and should not be allowed to happen in future.

Section 1.13-15 Experience in other countries
We support the practice of the majority of countries in the European Union in not enforcing copyright in the texts of official works. We are also in favour of the policy of dissemination of official information in line with the concept of freedom of information and the fundamental rights of the citizens. This model should be used in the UK.

Chapter Two

Section 2.11 Material of a legislative and judicial nature and Section 2.12 Quasi-legislative material
We believe that Government copyright be waived as a matter of course for the simple dissemination of these categories of material whatever the type of fixation in material form. However, where incorporated within some form of value-added work with the intention of achieving a commercial profit, the Crown should be able to derive economic benefit from such exploitation.

Section 2.13 Information which is specifically prepared by Government for public dissemination
Notwithstanding separate works which may be contained therein and which may be exploitable separately, in general, we believe that material in this category should be copyright waived.

Section 2.14 Material aimed primarily at specialist audience
We believe that this is an entirely spurious division. The State should be able to reduce the costs to the public purse where any form of copyright protected work is exploited with the intention of achieving a commercial profit.

Section 2.15 Value-added or discretionary works produced by Government
All forms of value-added or discretionary works, whatever the type of fixation in material form, should potentially be capable of producing an economic benefit for the State and its citizens. Once again, the listing of materials under this section are spurious. It is the end-use and intentions which matters, not the material form.

Section 2.16 Material where there are security implications etc.
Safety of the State, law enforcement, confidentiality and privacy are not concepts which should be addressed by a legal regime giving the right to the State of protection against unfair exploitation of intellectual property. These very serious issues are more appropriately and proportionately dealt with by existing and developing legislation designed to deter and punish behaviour in these areas. It would be manifestly oppressive and unjust to use copyright legislation in such cases.

Section 2.17 Unpublished documents
It is our belief that material opened to the public under the Public Record Acts (and any future FOI legislation) should usually be freely reproducible without the need to request permission and without charge. Exceptionally, this general principle should be balanced against the considerations outlined in our responses above.

Section 2.18 Typographical arrangements of published works
Any waiver of copyright in the text of a work will be useless unless the typographical arrangement copyright is also waived. If it is not waived, then access to official publications will almost certainly be limited. Both permissions (non-enforcement or waivers) are needed in order to photocopy a work or to copy it electronically. It is essential, therefore that Government departments seek to ensure that the copyright in the typographical arrangement is assigned to them or is retained by the Crown.

Section 2.32 The purposes of licensing
Whist we would not disagree with any of the statements listed in this section, we would emphasise that for general research or private study purposes, licensing is not relevant. For these purposes, Crown copyright in certain materials either should not be enforced or it should be waived.

Section 2.24-25 Delegation of Authority
One successful area is the legal field where the Government publishes the basic texts of statutory material at a reasonably low cost and licenses commercial firms to reproduce these texts and add value to them in the form of commentaries. Publication could be in print or electronic form. The basic texts are available freely for use in libraries and in education and the value-added works are available for purchase by commercial concerns. Making basic texts available on the Internet also increases their widespread use.

Section 3.9 Development of value-added products and services - grey literature
Government departments should definitely be encouraged to collect and catalogue all their 'grey' literature. Grey literature consists of much printed material plus lists and catalogues. This is a valuable resource. We believe that much of this may have already been catalogued by library and information professionals but information will be scattered between them. Each Government department's library should have responsibility for maintaining such a list. We were appalled by the admission by the Department of Health that a list of its publications was "not collected centrally and can only be provided at disproportionate cost" [HC Hansard 9.2.98 cWA61]

Section 3.12 Charging
We do not oppose charging in principle, but charges, where raised, should be proportionate to the intended uses of the information in line with the views set out above. Charges for information from official sources should be imposed only to reduce the costs to the public purse and not otherwise. Much data and information collected and processed using public money is tied up in Government monopoly organisations. (The Ordnance Survey being a particularly extreme example). The Ordnance Survey, like the ONS, is a public service organisation carrying out an essential function of good administration. Although both ONS and OS produce value-added or discretionary work. OS effectively has a monopoly over spatial data of UK and dependent territories. This data is not available in raw form (although, arguably, it should be via the Public Record Acts) and the organisation is proud of the fact that it generates large revenue returns. Apart from 'fair dealing' copies of a proportion of published map sheets, users of OS data are currently faced with disproportionately high charges for most forms of use, including those which are incurred as part and parcel of a duty or obligation imposed by law. All current spatial data is now produced digitally and this is used as an excuse to charge inflated prices for access to the detriment of all. For example, users accessing the OS web page are charged for every access as well as for downloading and printing. This practice, and many others are increasingly unacceptable to the library and information profession. Another example of a Government monopoly is the obtaining of scientific data especially meteorological and other forms of remote-sensing data. Researchers need to have access to data at affordable charges. We believe that it is essential that data and information collected by the State by virtue of its functions should be available to all citizens regardless of whether they can afford to pay or not.

Chapter 4 - Is there a need for Crown Copyright?
We believe there is still a need for some form of Government copyright in order to relieve the burden of taxation and to provide a regulatory mechanism to control the paternity and integrity of official data and information.

Arguments for retention
Section 4.2-3 We agree with these statements.
Section 4.4 Despite this figure, we contend that the arguments for retention should not be primarily based on consideration of revenue returns.
Section 4.5 We take the point but please refer to our arguments in S.3.12 above. We stress again that charges for information from official sources should be imposed only to reduce the costs to the public purse and not otherwise.
Section 4.6-7 We understand these points. All publishing is a risk but surely healthy competition is no bad thing? Publishers should not be handed a risk free proposition.
Section 4.8 We have to ask the question: is the primary purpose of Crown Copyright to make profits or to disseminate its information? This tests the commitment to Freedom of Information.
Section 4.9 We question the need for departments to develop products and services.
Section 4.10 The taxpayer has already subsidised the collection and processing of the information. They should not have to subsidise it again by having to pay high access fees.

Arguments against retention
Section 4.11 We agree with this statement.
Section 4.12

1. Removal of Crown Copyright may not necessarily make a difference to a possible increase in the information market as much material published by Government is of minority interest.
2. One of the main barriers to access is the multiplicity of publishers who all have their own publishing practices - publicity, bibliographical machinery etc -and pricing policies. There is no single standard. The more diffuse the publishing, the more difficult it is for the library and information professional and the general public to be alerted to and to trace their publications. The privatisation of HMSO speeded up this diffusion. Removal of Crown copyright would continue that acceleration.
3. Official publishing is very different from ordinary commercial publishing: the material is often more complex; the market is different; it is driven by political and not commercial considerations; large stocks are kept in print; speed of publication is an imperative.
4. Network publishing could be severely curtailed if commercial companies were given carte blanche use of some data. Would a Government allow the loading of data on to its website if it wanted to benefit from increased revenue from private sector participation in disseminating data? Would a company take data that was freely available on the Net? This is unlikely. Therefore, there would be pressure on the Government to channel such data only through the private sector. We would be against this scenario.
5. There may be scope for joint ventures, especially in the digital environment, if they were properly regulated by appropriate contractual arrangements.

Section 4.13 We agree wholeheartedly with this. Dealing with a number of Government owners of information is a time-consuming and administrative barrier to access, not just for commercial interests but also for the library and information profession. Also the fragmentation of the management of Crown copyright across different departments has created an incoherent and inefficient system. We need only refer again to the problems caused by HSE books and Taylor Nelson. Because there has been no code of practice or regulatory body to oversee standards and pricing policies, the library and information profession has been subjected to second rate services, inflated prices, inadequate bibliographic control etc. This has, no doubt, also had an adverse effect on sales and thus on Government revenue.

Section 4.14 We would emphasise that it is the business of Government to ensure wide access to citizens of its publications.

Chapter 5 - Options
We believe that options D, E and F are not in the public interest. F especially would create total confusion! Of the rest, we favour option A; option B is also favoured by us but helpful notices similar to the French model would be necessary; option C is also desirable; option G could work but it would need to be flexible.

Chapter 6 - The next stage
The following is an attempt to give simple answers to the questions posed while making the point that they are not straightforward.

1. Yes
2. 'Raw' Government data should be accessible to all citizens on equal terms, preferably free of charge. Products based on this raw material, which have been augmented by value-added material, should be treated in the same way as other commercially produced works.
3. Charging policy should not restrict the use of the data. Users should not be charged for copying or for use under the fair dealing purposes of research or private study.
4. Yes, where necessary.
5. We believe not. It has led to a multitude of different regimes and attitudes (and ignorance) of copyright control. Access to official publications has not improved. The opposite is true. Departmental publishing has led to a large number of sub-standard works with inadequate bibliographic data: no contact point; no ISBN (so no booktrade connection); no date; no price given on publication etc. HSE Books were a disaster when first set up because of inexperience. The Taylor Nelson publication UK Markets failed because of copyright restrictions and price (but mainly because of the exclusive contract with ONS). These are just two examples.
6. Yes
7. Yes
8. Yes
9. It is possible but unlikely
10. It could but it should not
11. Yes certainly. This is an excellent way of allowing official publications to reach all citizens.
12. If freeing up means removal of Crown copyright then this is not likely to lead to a growth. If it means waived for certain purposes then we believe it will. Wider access will lead to greater awareness which in turn will lead to more opportunities for Government to license commercial publishers to publish value-added material.
13. We believe so.
14. By listing unpublished material. The responsibility for this should rest with HMSO which has the experience.
15. Much Crown Copyright protected material is of "specialised or limited interest". This is precisely why removal of Crown Copyright would be bad for access. No-one would want to publish the loss-maker if they could not publish the best-sellers.
16. It is a good start but could be better. There is very little substance. Also access is not at present universal so it will not meet all the needs of individuals and businesses. If/when the Government's commitment to the proposals contained New Library; the People's Network for public libraries is realised, there should be potential access for all in a local public library.
17. Internet publication increases print sales (not only because the design of the pages on the web makes downloading difficult and so it is cheaper to purchase a paper copy!) Internet publication increases awareness and so demand. The Government should recognise this and load more. We suggest that more timely data and longer runs of statistics are needed. Also a standard interface is essential for all Government sites with consistent basic information and layout across sites. There should be an archive of data built up.
18. This is a problem for all electronic publishers. Copyright law has remedies for infringement. We suggest that there should helpful copyright notices on publications giving an indication of what may or may not be copied freely and under what conditions e.g. for the purposes of research or private study or educational purposes. The 'Dear Librarian' letter approach is a good one. NB the use of the phrase Crown Copyright Reserved is meaningless to all but Copyright specialists and not at all helpful.
19. Departments should make every effort to make lists available (with all the standard bibliographic details) and publish them as a matter of routine. One of the major barriers to access has been the difficulty of: a) knowing whether something has been published; b) knowing where to obtain it; and c) tracing older material. We also suggest that the copyright status especially on older material is made clear. E.g. this document is Crown copyright but the copyright is not being enforced; or this photograph was protected by Crown copyright but is now in the public domain.
20. No
21. See previous responses.

Section 6.2 Other related issues

1. What is Crown copyright? Crown copyright as a concept has become desynchronised over the years as the British Empire and Commonwealth have evolved. We now appear to have 'UK Crown copyright' and a right which is called Crown copyright but goes by different rules in Canada, Australia, New Zealand, etc. Whatever the outcome of this consultation exercise the Government needs to address this issue and issue appropriate guidance for its citizens, and not just leave matters to the lawyers as presently happens. Increasingly copyright administration is a global issue and must, accordingly, be approached as such.
2. List of UK Crown copyright bodies needed. A comprehensive, current and accurate schedule listing 'UK Crown Copyright' bodies maintained and updated via the Internet, or some other accessible form, is a necessity, if efficient, effective, equitable and economic administration of Government copyright is to be attained in the modern age. The Green Paper itself demonstrates the validity of the argument since it omits, to our great surprise, a number of Crown copyright revenue generating bodies.
3. Duration of term. We note that the term of protection for Crown copyright works has not been raised as an issue although altering this for certain categories of work might be an option. We believe that the current term is wrong in principle and in practice, as well as conflicting with FOI concerns. We suggest, therefore, that works which are still to be protected should have a term of no more than fifty years as is the case for sound recordings, Parliamentary and 'international organisations' copyright as well as being the term for 'non-UK Crown copyright' administered by other sovereign states.
4. Local Government copyright We would like to raise here the related issue of works produced by Local Authorities and 'non-Crown government bodies'. We believe that the law applicable to the dissemination of these categories of material should be the same. Government is indivisible. It is ridiculous to have parallel and dissonant regimes with differing procedures, permissions and levels of protection for what is one entity. A regime with a fixed, clearly and objectively identifiable period of protection is preferable to one based on the life of an anonymous and essentially unidentifiable functionary.
5. User guidance needed on fair dealing and reasonable enquiry etc. Finally, as users of Crown material, we are frequently faced with questions such as: "Can one copy from this work?"; "Is this work still in copyright?"; "Where do I obtain permission to copy more than a fair dealing amount?" etc. We are naturally cautious as professionals and anxious to avoid liability and so we spend far more time than may be necessary in trying to establish the copyright status of works and rely heavily on fair dealing and the "reasonable enquiry" clause in the CPDA 1988. There is also considerable confusion over the length of the term determined by whether published or unpublished and the problem of works stamped "Crown copyright" which may have fallen into the public domain. Notwithstanding any changes brought about by this consultation exercise, may we suggest, that HMSO prepare some guidance along the lines of the "Dear Librarian" letter which could help users to stay within the law.

Sandy Norman
Secretary
LA/JCC Working Party on Copyright

April 1998