The Information Commissioner’s Office (ICO) has published guidance for public bodies which receive a request under the Freedom of Information Act (FOIA) for the release of information, where that information is subject to intellectual property rights.
The guidance says that public bodies that release copyrighted information on the receipt of a request are not guilty of copyright infringement. The guidance sets out that section 50 of the Copyright Designs and Patents Act 1988 allows disclosure where specifically authorised by an Act of Parliament (which would include the FOIA). Copyright will still apply to that information once it has been disclosed so that the person receiving that information must respect that copyright; if they do not, they risk the copyright owner enforcing its rights against them. Public bodies releasing such information should inform the recipient that the information is subject to intellectual property rights owned by a third party.
The guidance also sets out that there is an exemption to disclosure of copyrighted material under the FOIA if, when disclosed and despite still being subject to copyright, that information would lose its commercial value to the disclosing public body or the copyright owner. However, public bodies must conduct a public interest test before making such a decision against disclosure.
The ICO sets out similar guidance in relation to the disclosure of information covered by database rights.