Non Compliance

Link between re-use of information and access to information

Asset Lists


Licences, exclusive licences and special agreements

Q. Do public sector organisations have to issue formal licences?

Q. What legislation covers the re-use of public sector information?

The re-use of Public Sector Information Regulations (PSI Regulations) is the legislation that covers the reuse of public sector information.

Q. What information is available for re-use?

A. Most Crown copyright material is available for re-use unless it is exempt under the Freedom of Information (FOI) Act. The PSI Regulations identify documents held by archives, libraries and museums as being exempt – organisations can decide to allow reuse to those exempt documents if they so wish. Within central government it is anticipated that most information held within government archives, libraries and museums will be made available for re-use.

Q. What about third party copyright?

A. The PSI Regulations allow public sector organisations to provide applicants with details of who owns the rights to documents or where documents can be obtained, where known.

Q. What are the main responsibilities facing public sector organisations under the PSI regulations?

A. The main responsibilities are:

  • dealing with applications for re-use within 20 working days
  • dealing with applications in a non-discriminatory way
  • to publish terms of re-use, usually in the form of a licence
  • not to enter into exclusive arrangements other than in exceptional circumstances
  • to provide information about what information is available for re-use. This should be in the form of an information asset list

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Q. What is the position when a public sector organisation wants to use third party copyright material, say a photograph in a publication?

A. Like other applicants it is important to seek permission, preferably in writing, from the copyright owner. Otherwise the public sector organisation is infringing copyright. It is common practice to acknowledge the copyright. The inclusion of third party copyright material in a publication is unlikely to change the overall copyright of the publication.

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Q. What is the position when a local authority re-uses Crown copyright information, such as Ordnance Survey mapping data, and then adds further information to that map? Would the local authority have the right to allow re-use of the enhanced map?

A. Often there are several layers of copyright involved. The position is that the local authority would be responsible for licensing the new data they have created but the re-user would need to apply to Ordnance Survey for a licence to reproduce the base map/data.

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Q. I have spent time and money producing this information. Why should I allow others to re-use it?

A. Information prepared as part of a public sector organisation’s public task has been gathered at the taxpayers’ expense and for their benefit. As such, the taxpayer has a right to access and re-use that information. It is also reasonable to expect the re-user, not the taxpayer, to cover the costs of making the information available for re-use and some of the costs of gathering that information.

The PSI Regulations recognise that publicly-owned copyright operates to different rules and that public sector organisations have responsibilities not to discriminate between potential users, to be open and to trade fairly.

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Q. As a public sector organisation can I refuse to allow re-use of my information?

A. If a public sector organisation refuses re-use, they need to explain why and justify their actions in any challenge. See the section on non compliance below.

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Q. Who decides what a public sector organisation’s public task is?

A. Individual public sector organisations will be best placed to decide what activities fall within the scope of its public task. It may be useful to refer to the public sector organisation’s framework document to assess this. Information produced outside of the public task falls outside the scope of the PSI Regulations.

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Q. What happens if my organisation does not comply?

A. Non-compliance is not an option. The PSI Regulations impose a legal requirement upon public sector organisations. If an organisation fails to comply it lays itself open to challenge under the complaints process and, potentially, through the courts.

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Q. What happens if a customer believes they have not been dealt with according to the PSI Regulations?

A. If a customer wishes to complain about the way an organisation has dealt with a request to re-use information, they should first go through the public sector organisation’s own internal complaints process which should be a public document. If a customer is not satisfied with the outcome, they may choose to refer their complaint to The National Archives, which will carry out an independent assessment.

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Q. What if the customer is still not satisfied with the response?

A. Once The National Archives has published its assessment, if either party is dissatisfied because they feel The National Archives has not interpreted the Regulations correctly or have not followed their own PSI complaints procedures, the party may refer the dispute to the Advisory Panel on Public Sector Information (APPSI).

This in no way interferes with a party’s right to refer the matter to the courts at any time. The purpose of the process is to create a simplified, low cost alternative to often expensive and time-consuming legal action.

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Q. What is the difference between access and re-use?

A. Access, under Freedom of Information legislation (FOI), is all about obtaining the information. Often individuals or companies want the information for their own use. Re-use involves making copies, publishing the information and perhaps commercially exploiting it. Re-use is therefore very closely linked to copyright and licensing. For this reason, public sector organisations state in responding to FOI requests that the supply of documents under Freedom of Information does not give an automatic right to re-use those documents.

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Q. Do applicants making requests under FOI have to declare an interest to re-use?

A. No. FOI is ‘purpose blind’ which means that applicants do not have to declare the purposes of the request. A grant of access to information does not convey any rights to re-use it. Those requesting access to information should be informed that if they wish to re-use the information in any way they must apply for a licence and inform the public body how they plan to re-use the material. We provide specific guidance on the form of words to be used: Links between access and reuse. This is particularly important in relation to third party copyright material.

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Q. Is everything that is exempt under FOI also exempt under PSI?

A. In general all information which is exempt under FOI is also exempt under the PSI regulations – you cannot re-use what you cannot access. If information is already in the public domain (say, it is published on a website or in a hard copy publication or brochure), it is exempt under FOI legislation but is still available for re-use. In fact, information that is already accessible makes up a large proportion of the material that is potentially re-usable: consider all the information produced and published by public sector organisations every day as part of their normal working practice.

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Q. How long do I have to deal with a PSI request compared to a FOI request?

A. Any FOI application must be dealt with first, before re-use of the material can be allowed. Re-use cannot be granted unless access has been allowed. Under PSI Regulations public sector organisations have 20 working days in which to respond to requests (this may be extended in exceptional cases). There is scope for dealing with the two processes simultaneously to avoid delay. If the organisation is not responsible for both (for example, the licensing responsibilities of most Crown bodies are handled by The National Archives) then they should notify the responsible body so that the two aspects can be considered concurrently. (For example, when government departments receive an FOI application indicating an intention to re-use, the department should notify The National Archives, which will consider the re-use aspects).

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Q. Are the PSI regulations incompatible with the protection of intellectual property agreements?

A. No, there is no incompatibility between the PSI regulations and copyright laws and conventions.

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Q. What is the difference between a publication scheme and an asset list?

A. A publication scheme covers published documents and often details documents in broad categories; for example, minutes of meetings. Asset lists take this approach further, covering specific items and describing them so they can be identified individually by title and description of contents. For example: ‘Minutes of Strategy Board Meetings’ is less specific than ‘Minutes of Meeting of Strategy Board on 16 December 2005′, as part of a list of all meetings. A publication scheme is required under FOI legislation; asset lists are similarly necessary under the PSI Regulations.

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Q. What happens if my organisation does not have an asset list?

A. Since 2006 an asset list is a mandatory requirement for local government, and other parts of the public sector are encouraged to adopt it as well.

We recommend that this be based on the Integrated Public Sector Vocabulary (IPSV), an encoding scheme developed with the backing of CLG Communities and Local Government (CLG) and the eGU Cabinet Office e-Government Unit (eGU).

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Q. How can I access public sector information and will I be expected to pay for it?

A. Significant amounts of information can be accessed free of charge either on websites or in free publications. Information can be accessed:

  • by viewing the information on public sector websites. This would normally be free of charge.
  • by obtaining a published document from the public sector organisation, perhaps in the case of a free issue leaflet. This would not normally involve the payment of a fee.
  • by making a request under a statutory access regime, for example FOI (in the case of information that is not readily available). This may involve a charge under the legislation.
  • by purchasing a copy of a priced publication. In many cases such publications would be available in public libraries.

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Q. How much may a public sector organisation charge for a licence to re-use information?

A. A public sector organisation may recover some of the costs initially incurred in collecting the data, even though this was part of the public sector organisation’s public task and charge to cover the costs of allowing re-use. This decision should not be based upon the perceived value of the information or the type of organisation requesting it. It should be based upon the way the information is being re-used. This does allow for discrimination between different types of re-use (e.g. between re-use for educational compared with commercial purposes) but not for different re-users.

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Q. Is a public sector organisation allowed to make money from licensing?

A. The re-use of most public sector information will be allowed free of charge as it is prepared as part of the basic public task. This is the case with most information covered by Crown copyright, which can be used free of charge under the Open Government Licence. The taxpayer, having met the cost of collecting the information, is entitled to see a reasonable return on their investment (in the form of income from licensing) where such information has the potential to be re-used for commercial gain. Charging for use helps to reduce overall public expenditure, improves transparency and ensures that costs are properly levied on those who benefit from using the information other than for its primary purpose. Those public sector organisations allowing re-use should follow Treasury guidelines.

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Q. What is meant by reasonable return on investment?

A. It is a matter for individual public bodies to decide on what basis they wish to make such information available and what they calculate to be a reasonable return on investment.

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Q. Will the charges be based on the type of re-user?

A. No. The key consideration is the form of re-use. All applicants will be charged the same rate if the type of re-use is the same.

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Q. Is a public sector organisation obliged to charge a charity the same as it charges a commercial organisation?

A. Charges should be based upon how information is used and not according to the type of organisation requesting re-use. Therefore if a charity is using the information in a commercial way, it should be charged the same as any other re-user. Different rates may be set for charitable and commercial re-use irrespective of the nature of the organisation re-using.

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Q. Why is industry being charged for information that has been collected at public expense?

A. The taxpayer finances the establishment and maintenance of these information sources and should expect to see a reasonable return on their investment – in the form of income from licensing – where such information has the potential to be re-used for commercial gain. This applies to all public bodies as it helps to reduce overall public expenditure, improves transparency and ensures that costs are properly levied on those who benefit from the supply of information. Most Crown copyright information can be re-used under the Open Government Licence.

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Q. Why are there special rules for bodies that are Trading Funds?

A. Trading Funds are required to charge for their services in order to support themselves and not be a drain on public funds. If they were unable to charge for information services that have a potential commercial value, they would either need additional public funding (which would increase costs for the general taxpayer) or they would only be able to produce less information or produce information of a poorer quality (leading to lower quality information being available for re-use). Through the charging for information both the general taxpayer and the potential re-user gain and a proportion of costs more properly falls on those who stand to benefit from the information (the user-pays principle).

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Q. Will the government be designating a large number of bodies as trading funds so as to charge for information?

A. No. Trading Funds are established under legislation only where it makes sound economic sense to do so.

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Q. How can you justify charging when the government claims to believe in greater freedom of access to information?

A. The government attaches importance to the pro-active release of information and a great deal of information that may have a commercial use is already available without charge. For example, government departments release consultation documents, announcements of government policy (press notices, White Papers and so on). Where information is tailored to the needs of the requester, or where government provides value-added information of commercial value, it is right to seek to recover the full amount of the value-added element, plus a return on investment where appropriate. This is fairer both to the taxpayer and to potential re-users who gain a commercial benefit from information paid for out of taxpayers’ money.

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Q. Will I be charged twice for documents, once under Freedom of Information and then under the Re-use of Public Sector Information Regulations?

A. No, public sector organisations are not allowed to charge twice for the same activity. If you have been charged for access to information (for example under legislation such as the Freedom of Information Act) then these charges will be deducted from any charges for re-use.

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Q. If the standard licences do not cover what I propose to do with the information, can this be changed and will I be charged more?

A. Licences granting permission for re-use will specify the terms of that re-use. If you need a licence for a use that is not set out in the standard licence terms, then it may be possible to agree specific terms. You may be charged for that proposed re-use, depending on the nature of the information.

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Q. Why can’t taxpayers have free access to information that has been created with their taxes in the first place?

A. Freedom of Information legislation covers access to information. This allows free access to public sector information in the vast majority of cases. Access does not automatically entitle re-use. Where that information is to be re-used, for instance for commercial purposes, it is reasonable, to protect the investment made by the taxpayer and to ensure that a proportion of costs properly fall on those who stand to benefit from the information (the ‘user pays’ principle).

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Q. What is the basis for deciding whether the information has a possible commercial re-use? Can the decision be challenged?

A. It is a matter for individual public bodies to consider what information might be available for re-use and on what terms it should be offered. Public bodies may also be able to provide non-standard, value added products to meet the needs of individual customers – in which case the charge would be a matter for negotiation. The Re-use of PSI Regulations 2005 (SI 2005 No. 1515, regulation 15) specifies what may be charged for. In all cases, the public body itself will be required to have a complaints procedure, and if that does not resolve matters, our complaints procedure can be used.

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Q. How do I know that the charge quoted to me is appropriate and reasonable? Will the charging be transparent? Do I have a right to appeal?

A. In most cases the charge quoted will not exceed the cost of collection, production, reproduction and dissemination of information and a reasonable return on investment. Public bodies will publish asset lists, standard licence terms, and details of any charges, electronically where possible. Public sector organisations must comply with the Re-use of Public Sector Information Regulations 2005. Trading funds with delegations from the Controller of HMSO to manage the licensing of Crown copyright, such as Ordnance Survey and the Met Office, are also members of the Information Fair Trader Scheme. This independently verified scheme ensures that members meet certain standards of openness, fairness and transparency. There are also both internal and independent complaints procedures.

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Q. Can local government make a charge, or even profit, from allowing re-use of their information?

A. Unlike trading funds, local authorities were not set up to be commercial bodies, therefore different rules apply. Unless the local authority is doing something outside its public task, and/or adding value to the data it is releasing, the charge should be limited to those costs incurred in permitting re-use. For example, a council is involved in gathering information from its archives, collating that information, making copies and sending them out to a re-user.

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Q. Do public sector organisations have to issue formal licences?

A. There is no need to use formal licences. Re-use can be permitted by a number of means:

  • Implied Licence: One method would be to put a standard notice on your website stating that information can be re-used freely subject to acknowledging the copyright, identifying the source and not using it in a misleading manner: this is called an implied licence.
  • Formal Licence: Where there is wider raft of terms or where the payment of a fee is required it is advised that the public sector organisation use a formal licence.

We have published a simple template that can be adapted by public sector organisations, the guidance for which is provded below.

Use of standard licences to allow re-use (PDF, 0.15Mb)

Q. What is the advantage to the public sector of adopting the Open Government Licence to permit the re-use of their information?

A. It provides the public sector with the opportunity of using a simple and transparent licensing system to meet their responsibilities under the PSI regulations. This also means that there will be resource savings because public sector organisations do not have to develop their own licensing models.

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Q. What is the cost to the public sector of adopting the Open Government Licence?

A. There is no cost. Further information for public sector bodies on adopting the Open Government Licence can be found in Guidance for Information Providers .

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Q. Are public sector organisations allowed to enter into exclusive arrangements for public sector information?

A. No, exclusive licences should be avoided wherever possible. This is because the information owned by public sector organisations was generally paid for by the taxpayer and as such it would be unfair and inappropriate not to allow everyone equal right to it.

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Q. In what circumstances would an exclusive licence be allowed?

A. Regulation 14 (2) of the PSI regulations states that ‘a public sector organisation shall not enter into an exclusive arrangement with any … applicant’ unless it is ‘necessary for the provision of a service in the public interest’. Even in this instance, ‘The validity of the reason for granting the exclusive arrangement … shall be reviewed at least once every three years’ and the public sector organisation must publish the details.

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Q. What is the policy surrounding information sharing between government departments and public sector organisations?

A. If the information is for purposes promoting their public task then this is outside the scope of the PSI regulations. If a public sector organisation is re-using another public sector organisation’s information for a purpose that is outside its public task (for example for commercial publishing) then the re-user is subject to the same terms of re-use as anyone else.

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Q. Do Crown organisations need a licence to re-use Crown copyright material produced by other departments?

A. In contractual terms, the Crown is an indivisible entity and the Crown cannot contract with itself. Strictly speaking, no formal licence agreement is required. Nevertheless, departments should not copy or publish material from another department without permission of the originating material. The arrangements between organisations such as Ordnance Survey and other departments often take the form of memoranda of understanding. These do not have the same legal standing as contract.

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Q. What information should departments and public sector organisations publish on official websites and in publications regarding copyright and re-use?

A. The main information required is the copyright status of the work, whether the material can be re-used and, if so, to whom to apply for a licence.

More detailed guidance can be found in the guidance note below:

Copyright and publishing guidance (PDF, 0.08Mb)

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Q. Can a re-user require production of documents in a particular format?

A. No. The Regulations state that ‘Nothing in these Regulations shall oblige a public sector organisation to… create or adapt a document in order to comply with a request for re-use’. Therefore, a public sector organisation is not required to supply documents in a particular format or to convert them from one format to another to satisfy the needs of an applicant. The organisation may choose to reformat the document and if it does it may negotiate a charge for such a tailored service. For example, data feeds of legislation in specific formats are provided as an added value service to major information publishers.

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Q. Can a re-user require a public sector organisation to produce a series of documents in order to meet the needs of a re-user?

A. No. The Regulations state that ‘Nothing in these Regulations shall oblige a public sector organisation to … continue to produce a certain type of document for the purposes of re-use by another person’.

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Infringement of copyright

Q. How can public sector organisations protect their intellectual property rights?

A. The PSI Regulations do not affect your intellectual property rights (IPR). Your rights and ability to police your IPR are the same as they have always been. In law, the onus is on the IPR-holder to identify breaches of its rights and to then pursue the matter, either directly with the re-user or through the courts. It is for the IPR holder to decide whether doing so is in their interests. Introducing a layer of monitoring and checking could prove bureaucratic and time consuming both for the private and the public sector. It could detract from the main aim of the Regulations which is to encourage others to re-use public sector information.

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Q. Is it a breach of copyright for journalists or newspapers to re-use information provided by public authorities under the Freedom of Information Acts, for the purpose of news reporting?

A. Under the Copyright, Designs and Patents Act 1988 certain copying can be undertaken without requiring the copyright owner’s permission. These are known as the fair dealing provisions. One of the fair dealing provisions allows copyright material (but not photographs) to be copied for the purposes of news reporting.

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